When lawyers become pedestrian for political expediency

The Herald

By Prof Jonathan Moyo, MP

3 June 2013

The over-debatable proposition that lawyers are safe from the threat of automation taking over their profession because no one would build a robot to do nothing has found curious confirmation from scandalous political comments made by some good for nothing lawyers whose reaction to last Friday’s historic Constitutional Court judgment directing President Mugabe to issue a proclamation as soon as possible fixing the date of the next harmonised general elections which should be held by July 31 2013 has been unprofessional and disgraceful.

There are three cases in point involving David Coltart, Chris Mhike and Greg Linnington, who are all lawyers of one sort or another. Yesterday The Standard newspaper reported that Greg Linnington, whom the paper conveniently touted as a “constitutional law expert”, claimed he was “astounded” by the ruling of the Constitutional Court and that he said “in terms of the Constitution, after the expiry of Parliament, the President has four months to call for elections”.

The fact that the interpretation of this claim as contained in section 58(1) of the Constitution is precisely the question that was settled by the Constitutional Court did not mean anything to Linnington, who was only too happy to put himself above the Court.

But in a comment that revealed that the “constitutional law expert” of The Standard is actually a good-for-nothing lawyer, Linnington was quoted by the paper as having said that, “I have not yet seen the reasons for the judgement (meaning that he had not read the judgment), but the correct decision was that of the two dissenting judges, Justices Bharat Patel and Luke Malaba”!

Now, how can a constitutional law expert, as Linnington is purported to be, be “astounded” by a judgment which by his own admission he had not read?

And how can he use his ignorance of the reasons behind the judgment supported by seven judges of the Constitutional Court to declare that the dissenting opinions of Justices Patel and Malaba are the correct decision? What does Linnington make of the fact that Justices Patel and Malaba did not agree with one another in their reasons and ended up issuing two different dissenting opinions? If there is anything astounding here, it is that there are such “constitutional law experts” in our midst and that there are some newspapers that indulge them to peddle their childish nonsense and create confusion with regular monotony when the issues at stake are very serious.

Then there is the astonishing intervention of another lawyer who is otherwise a jolly good fellow, Chris Mhike, who in fact represented Morgan Tsvangirai in the election matter decided by the Constitutional Court last Friday. According to yesterday’s Daily News on Sunday, Chris Mhike told the paper that, “We are surprised that the Honourable Court orders and directs the President to proclaim dates for general elections in terms of the old Constitution, that is the 1979 Constitution, when as a matter of fact, the new Constitution of Zimbabwe provides explicitly that the next elections should be conducted in terms of the new law, not the old”. Just like the case of Linnington, who scandalously claimed to have been astounded by a court judgment that he had not read, Mhike’s statement to the Daily News on Sunday is scandalously ignorant of the correct legal position when he should know better because he represented Tsvangirai, who was the second respondent in the matter and he instructed Advocate Uriri to argue the matter before the Court.

In fact, it is Mhike who challenged the urgency of the case in Chambers before Chief Justice Godfrey Chidyausiku and indeed Mhike sat through the oral arguments made in the Court on May 24.

There can be no doubt, therefore, that Mhike is intimately familiar with the case and that he had an opportunity to make his case to the Court before it reached its historic decision.

Furthermore, the Court record which is in the public domain and thus available to anyone who wants to peruse it, clearly shows that neither Mhike nor Advocate Uriri made any representation to the Constitutional Court in the matter in question to the effect that President Mugabe should proclaim the date of the forthcoming general elections in terms of the new Constitution.  Mhike’s position as reported by the Daily News on Sunday is new, preposterous, false and scandalous because it is coming from a lawyer who should know and say better but who has chosen to use newspapers to play cheap inflammatory games.

For the record, the correct legal position is that the forthcoming harmonised general elections shall be conducted in terms of both the old Constitution and the new Constitution.  As provided under section 6(3) of its Sixth Schedule, the only operational parts of the new Constitution that came into effect after it was assented to and published in the Gazette by President Mugabe on May 22 are Chapter 3 relating to citizenship; Chapter 4, being the Declaration of Rights; Chapter 5, relating to the election and assumption of office of the President, Chapter 6, relating to the election of Members of Parliament and the summoning of Parliament after a general election; Chapter 7 relating to elections, except sections 158, 160, and 161; Chapter 8 relating to the jurisdiction and powers of the Constitutional Court; Chapter 9, relating to principles of public administration and leadership; Section 208, relating to the conduct of members of the security services Chapter 12, in so far as it relates to the Zimbabwe Electoral Commission; and Chapter 14, relating to provincial and local government.

It is notable that section 158 of the new Constitution, which deals with “Timing of elections”, is specifically exempt from commencing on the publication day, which was May 22 and will thus commence with the rest of the other parts on the effective day which is when the President will be sworn-in after the forthcoming elections.

What this clearly means and should be obvious even to bush lawyers, let alone Mhike, is that the timing of the next elections and the proclamations thereof shall be in terms of section 58(1) of the outgoing Constitution. If the timing of the elections had been done in terms of the new Constitution without suspending section 158 which requires that general elections be held at least 30 days before the expiry of the full life of Parliament, then the general election should have been held last Friday, May 31 2013 the day the Constitutional Court issued its historic judgment.

Mhike’s newspaper claim that the Constitutional Court should not have ordered or directed President Mugabe to proclaim dates for the next election in terms of the old Constitution is shocking nonsense coming from a lawyer who was right in the heat of the matter.

Lastly, there is the case of David Coltart, who always behaves as if his racist Rhodesian roots which saw him serving the notorious and brutal BSAP — an offshoot of the murderous Selous Scouts — entitle him to a superior status as an alleged human rights lawyer whose knowledge of the law is final and unchallengeable.  Coltart claimed also to the Daily News on Sunday yesterday in sinister language intended to influence his racist Educational Transition Fund (ETF) donors that “The effect of the judgement will be to seriously undermine our chances of having credible elections”.

Coltart was quoted further pontificating, as if he is some kind of Rhodie big brother who cannot shut his ever-lecturing mouth, that “I foresee a variety of very serious logistical and legal challenges arising, including a denial of a few fundamental rights”

Just how can a judgement of the Constitutional Court whose essence is to restore legality and constitutionality have the effect of undermining credible elections?  Are we, or should the donors out there who are wont to listen to white voices, to believe Coltart’s nonsense that credible elections and the rule of law are mutually exclusive?

It is instructive that while Coltart claimed to foresee all sorts of challenges, he did not cite even one.

He also alleged that there would be a denial of fundamental rights, which is the usual scare tactic to attract the intrusive attention of foreigners, but again he did not mention any fundamental right that would be denied as an effect of the judgement of the Constitutional Court.  Coltart’s bombastic fury was all hot air from a Rhodie who continues to contemptuously take Zimbabweans and their commitment to the legacy of the liberation struggle for granted.

In a clear demonstration of his unacceptable arrogance, Coltart was quoted by the Daily News on Sunday having claimed that the mandatory 30-day voter registration exercise is still pending and saying, “Assuming that the constitutionally mandated period of registration begins on Monday the 3rd of June, it must then run until the end of the 3rd July”.  But why should Coltart “assume” anything?  Or, put it differently, why should a constitutional matter be subject to Coltart’s or anyone’s arbitrary assumptions?

Anyone who thinks that the constitutionally mandatory 30-day period for voter registration is yet to commence is living in cuckoo land.

The unassailable constitutional position is that the 30-day period in question started on May 22, 2013 when President Mugabe assented to and published the new Constitution in the Gazette. What this means is that — constitutionally — today is the twelfth day of that mandatory 30-day voter registration exercise.  This position is very clear from the reading of section 6(3) of the Sixth Schedule of the new Constitution which provides that, “The Registrar-General of Voters, under the supervision of the Zimbabwe Electoral Commission, must conduct a special and intensive voter registration and a voters’ roll inspection exercise for at least thirty days after the publication day”.
The counting of the 30 days starts after the publication day and not from some arbitrary day assumed by Coltart or anyone else for that matter under the cover of logistical or political arguments that have nothing to do with the constitutional position.

As trained lawyers who may now be tainted if not compromised by their MDC politics of treachery; Coltart, Mhike and Linnington should at least think and verify before they leap and avoid Tsvangirai’s syndrome of approaching Constitutional or national issues with an open mouth and a shut mind.

Professor Jonathan Moyo is a political scientist,  Zanu-PF Politburo member; House of Assembly member for Tsholotsho North and former media, information and publicity minister.