A Constitutional challenge of presidential election does not suspend inauguration

Emmerson Mnangagwa became Zimbabwe's third president since independence [Mike Hutchings/Reuters]

Zimbabwe, given the circumstances surrounding the recent elections one question that has seized legal minds across the globe relates to the interpretation of section 93 of the Constitution of Zimbabwe. Does a constitutional challenge in terms of section 93 suspend the swearing in of the president of Zimbabwe?

By LLoyd Msipa

In essence section 93 provides the basis to which a challenge of a presidential election can be made. Arguments have been advanced to the effect that once a challenge has been lodged with the Constitutional Court it has the effect of suspending the assumption of office by the president pending the settlement of the matter. I disagree. For completeness section 93 reads thus:

Section 93. Challenge to presidential election

  1. Subject to this section, any aggrieved candidate may challenge the validity of an election of a President or Vice-President by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election.
  2. The election of a Vice-President may be challenged only on the ground that he or she is or was not qualified for election
  3. The Constitutional Court must hear and determine a petition or application

under subsection (1) within fourteen days after the petition or application was lodged, and the court’s decision is final.

The Constitution of any given country forms the basis upon which the exercise of government authority takes place. One of the key offices of government is the office of the president. The president’s office is the nerve centre to which the exercise of governmental authority is derived from. That the office of the president is most important institution is beyond question. Therefore, a vacuum in such an office would create a serious constitutional crisis which can derail all operations of government. As such it is an office that should be manned at all times to ensure that there is direction and control regarding operations of government.

Therefore, the legislature would never have intended that at any given time there would be a vacuum in the office of the president. It is therefore important that in the interpretation of the relevant provisions, the courts must interpret broadly and liberally in order to give effect to the spirit of the constitution. In the event of a perceived gap in the law, the constitution should never be interpreted in a way that constrains government processes. It must be noted that the constitution is an organic document and as such must be interpreted as a living instrument. Liberal and purposive approaches of interpretation that give effect to the provisions of the same must be employed rather than a purely legalistic approach

A reading of Section 93 of the Constitution that deals with the challenge of the outcome of a presidential election raises questions. Does it necessarily suspend the assumption of office by the president. The provision is silent on this and attempts to interpret its silence to mean that it suspends the swearing in of the president once a petition has been filed is mischievous. In determining whether or not the provision suspends the inauguration, we need to ask ourselves, what was the intention of the legislature when that law was made.  The legislature wouldn’t deliberately create a void or gap in the law. We need to read this provision together with subsidiary legislation including the electoral act.

If we look at the electoral act, and it’s provisions that deal with the disposal of electoral disputes at the constitutional courts, for completeness lets read section 111 subsection 3.

111     Election petitions in respect of election to office of President

(1) An election petition complaining of an undue return or an undue election of a person to the office of President by reason of irregularity or any other cause whatsoever, may be presented to the Constitutional Court within seven days of the declaration of the result of the election in respect of which the petition is presented, by any person—

(a)claiming to have had a right to be elected at that election; or

(b)alleging himself or herself to have been a candidate at such election.

(2) If, on the trial of an election petition presented in terms of subsection (1), the Constitutional Court makes an order declaring—

(a)that the President was duly elected, such election shall be and remain valid as if no election petition had been presented against his or her election; or(b)that the President was not duly elected, the registrar of the Constitutional Court shall forthwith give notice of that fact to the Chief Elections Officer who shall publish a notice in the Gazette stating the effect of the order of the Constitutional Court.

(3)A declaration by the Constitutional Court in terms of paragraph (b) of subsection (2) shall not invalidate anything done by the President before that declaration.

Paragraph 3 of section 111 speaks of a declaration by the Constitutional Court and its effect. It states that a declaration by the Constitutional court cannot invalidate any decisions or activities done by the president pending the outcome of any court application. The question then arises, which president are we talking about here. The president who is holding office currently is my reading.

A purposive and liberal reading of section 93 of the constitution together with section 111, subsection 3 of the electoral act makes it clear that any petition to the constitutional court challenging the presidential results doesn’t suspend the swearing in, let alone the official work of the president of the Republic of Zimbabwe. The president therefore can be sworn in and continues to wield executive authority until the finalisation of the election petition.