CONSTITUTIONAL lawyer, Lovemore Madhuku has dismissed concerns that a High Court Judge may have erred when he granted an extension of the March 29 deadline for by-elections.
Report by Our Staff
The concern were raised by some lawyers after last week’s High Court ruling by Justice George Chiweshe, excusing President Robert Mugabe from complying with a Supreme Court ruling on by-elections, which some lawyers described as “astonishing”.
Madhuku, who chairs the National Constitutional Assembly (NCA), said the question of whether the High Court could set aside a Supreme Court ruling should have been asked last year, when Mugabe initially approached the courts seeking a variation.
“The High Court clearly has jurisdiction, it has what we call inherent jurisdiction, in computer terms we can call it the default court,” he explained, adding that the problem was that most lawyers had a “superficial view of themselves”.
Madhuku said if anyone did not know which court to approach, they approached the High Court and therefore, it had jurisdiction in all cases.
Lawyer Matshobane Ncube said since the Supreme Court was the highest court, all its rulings were binding and could not be set aside by a lower court. “Only the Supreme Court can revisit its decision, this is uncharacteristic and it’s a precedent,” said Ncube.
“I have my doubts about its legality. How can the High Court revisit a Supreme Court ruling?”
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Ncube said the three former legislators who wanted by-elections could still approach the Supreme Court to have a re-instatement of the previous order.
The Supreme Court last year ordered Mugabe to set a date for by-elections in three Matabeleland provinces, but the President sought to be excused from complying with the ruling, which Chiweshe granted.
Mugabe was initially supposed to set a date for by-elections last August but approached the High Court seeking a variation of the order on the basis that he would proclaim a date for general elections by March 31, this year.
Mugabe then approached the High Court again arguing that elections would be held by June 29, so he should be excused from executing the order.
Abednico Bhebhe, Njabuliso Mguni and Norman Mpofu won a Supreme Court order to compel Mugabe to proclaim a date for by- elections.
The trio were expelled from the MDC then led by Deputy Prime Minister Arthur Mutambara for going to bed with the MDC-T.
Madhuku said what was further puzzling was that the three MPs that wanted by-elections had all joined Prime Minister Morgan Tsvangirai’s MDC-T party and since the premier said he wanted elections in September, there was no point in continuing their fight for by-elections in their constituencies.
“What is the purpose of a by-election before the expiration of parliament?
“What is needed is a political decision on when elections will be held,” he said.
“The Prime Minister does not want elections before September, he should prevail on his members to drop the election challenge, it is not sensible.
“What would have happened had Mugabe not gone to court? We cannot have a by-election now.”
Justice Chiweshe’s court case is likely to have legal experts picking their brains for some time to come.
Section 26 of the Supreme Court Act states that “There shall be no appeal from any judgment or order of the Supreme Court” and that is the argument the former legislators were basing their argument on.
The lawyers argued that this was “litigation in perpetua”, meaning Mugabe continuously resorted to it each time he was due to make an order.
One of the lawyers representing the legislators, Tawanda Zhuwarara said he was waiting for the full court ruling, due tomorrow before deciding the next course of action.
He said they would speak with the three legislators, with an idea of pursuing the matter further.
