July 31? Court violated grammar rules: Matsyzak

A CONSTITUTIONAL law expert, Derek Matyszak, has alleged Chief Justice Godfrey Chidyausiku violated “basic rules of grammar” to make a crucial part in the Constitution on dates for elections “ambiguous”.

Report by Staff Reporter

Matyszak made the observations in a paper on the landmark decision by the Constitutional Court on an application by
Jealousy Mawarire.

The applicant claimed that President Robert Mugabe was obliged to set the dates for Zimbabwe’s next general election no later than June 29, 2013, when Parliament reaches the end of its prescribed five-year term.

Below is Matyszak’s argument.

“The determination of the issue revolved around the interpretation of subsection 58(1) of the old constitution, as read with subsections 63(4) and 63(7), which are still to apply until the new constitution becomes fully operational.

So the first step in Justice Chidyausiku’s judgment was to construe section 58(1) so that its meaning became ambiguous. This was done by violating some very basic rules of grammar and in the following way. Thus the judgment:

READING ‘A’
58(1) A general election and elections for members of the governing bodies of local authorities shall be held on: such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”

READING ‘B’
58(1) A general election and elections for members of the governing bodies of local authorities shall be held on such day or days within a period not exceeding four months after:

1. the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63 (4) as the President may, by proclamation in the Gazette, fix.

There could be any number of other variations the section 58(1) text can be broken into, but the two scenarios above will suffice for the purpose of this case. Both Reading ‘A’ and Reading ‘B’ answer to the question when elections are to be held, but with one putting the emphasis on the preposition ‘on’ and the other on ‘after’. Both interpretations are compelling. Adopting one interpretation or the other results in starkly different outcomes.

In one case, elections must be held within the life of Parliament. In the other case, elections may be held up to four months after the dissolution of Parliament. A court faced with competing possible interpretations of a constitutional provision must call into aid principles or canons of construction.

Justice Chidyausiku inserts colons into the section (where none exist in the original) ostensibly to clarify the ambiguity, but in practice creates an ambiguity where none existed before.

The insertion of punctuation can dramatically change the meaning of a sentence, for example: ‘While the mother was cooking the baby her brother and the dog were sleeping.’ When punctuated, the sentence is easier to read: ‘While the mother was cooking, the baby, her brother and the dog were sleeping.’

But leave out a comma and the text becomes more sinister. ‘While the mother was cooking the baby, her brother and the dog were sleeping.’

By inserting a colon after ‘on’ in section 58(1), Chidyausiku CJ alters the meaning of the provision to read: 58(1) A general election and elections for members of the governing bodies of local authorities shall be held on:

i) such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or,

ii) as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

This has the effect of removing the application of the phrase ‘within a period not exceeding four months after’ from the portion of the section referring to dissolution under 63(4) which is the provision providing for the automatic dissolution of Parliament. The sense is then that the election must be held on the automatic dissolution of Parliament, that is, June 29, 2013.

However, the Legislature did not place any colon where the Chief Justice would like to read one. The sentence must thus be read without it and in accordance with the usual rules of grammar.

Hence a grammatical reading of the sentence requires that the phrase ‘within a period not exceeding four months after’ applies to that portion of the section relating to automatic dissolution. The sense is thus that an election need only be held within a period not exceeding four months after the automatic dissolution on June 29, 2013, that is, by October 29, 2013.

As with the example of the mother cooking her baby given above, Justice Chiyausiku thus creates a new meaning for section 58(1) and one which accords with the Applicant’s (and Zanu PF’s) desire.

The effect in sum is that the sentence is read to mean that the President must set the election date within a period of four months before the dissolution of Parliament. Yet the provision quite clearly uses the word ‘after’ and we must assume deliberately so.

Furthermore, this meaning also implies that where the election is pursuant to the automatic dissolution of Parliament, the election must be held on such dissolution and not within a period of four months thereafter.

The date then is not fixed by the President, a requirement to which the relevant sections repeatedly make reference, but is fixed by the term limit of Parliament.

And there is no point in the President issuing a proclamation concerning a date for an election which is already known and determined.”

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