BY CHARLES LAITON
Justice Mangota’s ruling followed an application by a local scholar, businessman and activist, Mfundo Mlilo, who had challenged the gazetting of Statutory Instrument (SI) 117/2017, by the former President, which instrument amended the Electoral Act to pave way for the BVR exercise.
“. . . It cannot, in the view of the above stated matter, be suggested that the President’s conduct in publishing the regulations was ultra vires the Act. He published them in terms of the existing law. The law conferred him the power to act as he did. It was and it remains valid,” Justice Mangota said.
Mlilo’s constitutional application came about after Mugabe, on September 15, 2017, through Government Gazette extraordinary volume XCV number 61, published the Presidential Powers (Temporal Measures) Amendment of the Electoral Act Regulations as SI 117/2017.
Through his lawyer Tendai Biti, Mlilo said Mugabe’s move had breached provisions of the Constitution.
Mugabe had, through Attorney-General (AG)’s representative Vernanda Munyoro, opposed the application, arguing that the regulations which he published were necessitated by the BVR exercise which the country had adopted in preparation for this year’s general elections.
“It is evident, from the above cited portions that the President’s discretion to make regulations is only exercised by him in the interest of the people of Zimbabwe as a whole. He does not exercise the discretion in the interest of a section of the population of the country,” Justice Mangota ruled, adding that Mugabe “did not publicise the regulations for the fun of it. He did not, as the applicant (Mlilo) alleges, make an effort to abuse the law making function which the Act confers upon him”.
“His contention, which I agree, was that the advent of a new voters’ roll could not properly be covered by a law which Parliament would have introduced, debated and passed into law without interfering with the timelines of the forthcoming 2018 harmonised elections.”
According to Justice Mangota: “Parliament could not make law within the time which remained to deal with the situation which was then at hand.
“Whatever processes which pertained to the introduction into the country of a new voters’ roll required some law to be in place before it could be embarked upon. The President, therefore, made that law in line with his law-making function as was provided for in the Act and the Constitution.”
Justice Mangota further said Mlilo’s reading of section 134 of the Constitution was misplaced, adding he overlooked the fact that his application related to the making of law by ministers of government and statutory bodies.