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HARARE - Justice Moses Chinhengo yesterday ordered Tobaiwa Mudede, the Registrar-General, to hold the Harare mayoral and council elections on or before 11 February 2002 as ordered by the Supreme Court last month.

In an interim relief judgment granted to the Harare Residents and Ratepayers' Association against Mudede and President Mugabe, Chinhengo said Mudede might go to jail if he fails to comply with the ruling.

Chinhengo said: "Should Mudede fail to comply with any part of the interim relief granted under this provisional order, the applicants may approach this court to anticipate paragraph three of the final order, so that this court may commit Mudede to gaol until such time as such step or steps as may be specified by it are taken."

The final order in this case wants the court to send Mudede to jail if he fails to implement its ruling. Chinhengo said Mudede should, on or before 31 January 2002, give notice and fix 11 February 2002 or any preceding date for the holding of Harare council and mayoral elections.

"Mudede shall fix 4 February 2002 as the day the nomination court shall sit to receive nominations of the candidates for the mayoral and council elections for the City of Harare," the judge ruled.

He said the argument by Mudede that he does not have staff to hold the elections does not stand because during the hearing of the case before High Court judge, Justice Charles Hungwe, and before the Chief Justice, Godfrey Chidyausiku, in the Supreme Court last year, Mudede indicated that he was ready for the elections.

Chinhengo said the High Court does not have the power to vary the Supreme Court ruling except to
enforce it. Chinhengo said Statutory Instrument 13A of 2002 which was gazetted on 23 January 2002 using presidential powers was invalid.

Under the statutory instrument, the mayoral and council elections would be held on 9 and 10 March 2002 together with the presidential election. Chinhengo said: "Section 158 of the Electoral Act does not empower the President to issue a notice or a statutory instrument which has the effect of setting aside a court order. If the Legislature intended to include court orders, it should have done so.

"This means that the Supreme Court ruling is still valid and must be enforced. Mudede should have long taken steps to ensure the elections be held on or before 11 February 2002. It means that Mudede is more than just prima facie in contempt of the Supreme Court order."

Chinhengo said Parliament did not give the President powers to invalidate the decisions of the courts because of the doctrine of separation of powers. But he said that as long as Mudede can secure the holding of elections on or before 11 February 2002 there was no reason of holding him absolutely in contempt of court.

Two weeks ago, a High Court judge, Justice Rita Makarau, ruled that Mudede was in contempt of court when he closed the voter registration process in apparent defiance of Justice Hungwe's order not to do so until an application by Morgan Tsvangirai, the MDC leader, was heard.

Tsvangirai challenged the government order to force people to vote in their constituencies in the March presidential election and won last Friday. Chinhengo said that any appeal will not affect yesterday's interim relief.

"That in the event of an appeal being noted against this provisional order, notwithstanding such noting of appeal, this order is declared operative and in effect and shall not be suspended, unless a court or judge with appropriate jurisdiction is duly furnished with all documents filed herein, in accordance with due process, orders otherwise," Chinhengo said.

This the second time in a year that the courts have ruled against the use of statutory instruments by Mugabe to frustrate the legitimate concerns of Zimbabweans to seek redress in the courts. In January last year, the Supreme Court ruled as unconstitutional a statutory instrument issued by Mugabe to stop the MDC from petitioning the High Court on the outcome of the 2000 parliamentary election.

Loyce Matanda-Moyo of the Attorney General's Office had argued that the Supreme Court order became invalid after Mugabe invoked Statutory Instrument 13A of 2002. But Advocate Edith Mushore, for the residents' association, convinced Chinhengo that Mugabe does not have powers to invalidate court orders.

Last month, Chief Justice Chidyausiku and two other judges of the Supreme Court, Justices Wilson Sandura and Vernanda Ziyambi, unanimously pointed out that the commission running the affairs of the City of Harare was illegal. - The Daily News Zimbabwe

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