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Court’s Decision on Election Date Being March 2013 Is Wrong; An Update

13 Jan

In Elections Must Be Held In 2012, Not 2013 As the Constitutional Court Ruled, I took the position that the court was wrong in ruling that the next general elections must be held in March 2013. I took this position based on my previous analysis of the issue.

I have had time to review the court’s ruling in its entirety but still maintain the position the decision is wrong.

The only thing I would add to what I previously said after reading the opinion is if there was any political consideration in the decision–and one can’t rule that out completely, that’s something you’ll have to look elsewhere to find any conclusive evidence of it because the decision is well reasoned and supported with sound legal arguments and law.

As is always the case with cases such as this, however, one can come up with an equally well reasoned and legally sound decision going the opposite direction.

In fact, there is enough law and reasons argued in the parties’ submissions in this case to support a ruling the date is August or December as well!

This is why who is the judge or who are judges in any given case is crucial in the outcome of any case, especially one like this where the stakes may not be that high but significant nonetheless.

In sum, the court essentially decided to ignore several provisions in the main body of the constitution and entirely based its decision on the provisions of the Sixth Schedule under the legal doctrine of generalibus specialia derogant, which was wrongly applied in my view as to the specific date issue and I am sure others would agree.

Having read this opinion and knowing what the Supreme Court has projected thus far as to where it’s coming from and its philosophy, however, an appeal of this decision is futile as the Supreme Court is unfortunately likely to affirm with minor dicta (hopefully) disagreeing with some of the analysis in the decision and modifying part of its decision (regarding dissolution under NARA).

For example, the court relied on Prof. Ghai’s submission to find that “there is nothing in the National Accord and Reconciliation Act, 2008 that provides that an election must be held upon dissolution of the coalition established by the Accord.”

That may be true, but the constitution does (by a reading of several provisions together) so this is really a non-issue.

Instead, the court basically read an amendment (rightly so) into NARA making it clear Parliament is dissolved with the dissolution of the coalition.

Although I see no harm in requiring that both parties agree in writing as to dissolution of the coalition, it’s preferable that either party retain the right to do so in accordance with the wishes of their respective parties.

This being the case, the court has kicked the ball over to the coalition partners and if the both put country first, they ought easily agree on a suitable date to hold elections in 2012, if anything because we need not prolong this period of uncertainty as to when the elections will be held as a number of things and decisions do ride on it not the least of which are the various laws affected by the date.

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Posted by on January 13, 2012 in Law, Politics

 

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