Mushayakarara & ANOR V Chidyausiku NO & ORS 2000 (1) ZLR 227 (H)

Mr LT Biti for the applicant.

By Proclamation 7 of 1999, the President set up a Constitutional Reform Commission in terms of the Commissions of Inquiry Act [Chapter 10:07}. Its mandate was to seek the views of the people of Zimbabwe and produce a draft constitution. The commission consisted of some 400 people was was chaired by the first respondent. The commission adopted a wide ranging programme in its endeavours to carry out its functions. This involved setting up various subcommittees and thematic committees and arranging over 4000 meetings which were attended by over 700 000 people. Provincial reports were prepared and some 7000 written submissions we made by individual.

-At the end of its deliberations, the commission produced a draft constitution. In many important respect the draft diverted from he views expressed by the people generally and even by the commissions thematic committees. The draft was submitted to the President, who cause it to be published in the Gazette. Subsequently, the president published a further draft, contacting what were called, “corrections and clarifications” to the draft produced by the commission. The second draft was contained in a proclamation, which declared that a referendum was to be held to ascertain the views of the voters on the draft constitution as corrected and clarified.

-The applicants, who were two of the commissioners, sought an urgent order to prevent the referendum from being held. They argued that the commission did not make a full, faithful and impartial inquiry as required by the proclamation setting up the commission. Their case in this regard was premised on an alleged fraud perpetrated by certain of the respondents. The applicants claimed that these persons railroaded the process of the commission and adopted a draft over the objects of members of the commission. They sough an order that the “ corrections and clarifications” were of no force or effect.

 

• Held the president lawfully exercised his powers to set up the commission, and duly carried our the requirement to publish the draft produced by the commission. He was empowered under the referendums Act to declare that a referendum be held. He was not, however required by law to put to the voters the constitution approved by the commission; he could lawfully put to the voter any draft he wished. Accordingly, he was entitled to make whatever corrections, alteration or amendments he wished to the draft produced by the commission. He could even have discarded that draft completely an put forward his own draft.
• held further that given the difficulties of the mandate of the commission, there was insufficient basis of the court to oder for the referendum to be postponed pending the hearing of the application as to whether the commission carried out its mandate properly.