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MDC
reviews first day of Morgan Tsvangirai’s court challenge of
the March 2002 election result
MDC
Department of Legal Affairs
November 03, 2003
- After a delay
of more than 18 months Morgan Tsvangirai’s court challenge against
the result of the March 2002 Zimbabwe Presidential Election finally
began in the Harare High Court today, 3 November 2003.
- The initial
signs were not auspicious. When Mr Tsvangirai’s legal team and
supporters arrived at the High Court Building at 9.40am, for a
scheduled 10.00am start, they were shown to Court E, a cramped
and dingy court room on the roof of the High Court building, noteworthy
principally for the paint pealing in strips from its walls and
ceilings. It is difficult to see how the allocation of that court
room to a case involving a Presidential Election challenge amounted
to anything other than a calculated insult to the Petitioner,
Mr Tsvangirai.
- For reasons
that may or may not have had something to do with the arrival,
as observers, of an American Federal Judge, a prominent Kenyan
lawyer and members of the diplomatic corps, the hearing was re-allocated
to the main court room, Court A.
- It was in
the spacious and wood-paneled surrounds of Court A that Advocate
Jeremy Gauntlett S.C. of South Africa opened proceedings on behalf
of Mr Tsvangirai before the Mr Justice Hlatshwayo.
- Advocate
Gauntlett addressed the court for some 2½ hours. He reminded the
Judge that it had been agreed at the Pre-Trial Conference that
the hearing would deal firstly with the points of law raised on
behalf of Mr Tsvangirai and the Respondents, including Robert
Mugabe. Advocate Gauntlett pointed out that, if the High Court
found in favour of Mr Tsvangirai on any of his main legal arguments,
that would necessarily entail a finding that the 2002 Presidential
Election was not conducted in accordance with the law of Zimbabwe,
and was a nullity. This would mean that Robert Mugabe had not
been validly elected as President.
- Advocate
Gauntlett stated that Mr Tsvangirai’s court challenge had been
brought in terms of Section 102 of the Electoral Act, which requires
that all elections in Zimbabwe must be free and fair, and permits
the High Court to set aside any election which is flawed "
by reason of irregularity or for any other cause whatsoever".
- He went on
to submit to the court that Section 102 of the Electoral Act must
be read in terms of the Zimbabwean Constitution, which guarantees
citizens freedom of expression (through, among other things, voting
in free and fair elections), and in terms of Article 21 of the
Universal Declaration of Human Rights, which contemplates that
the political will of citizens be expressed through "periodic
and genuine elections". Advocate Gauntlett informed the
court that it was
Mr Tsvangirai’s submission that the March 2002 Presidential Election
had been conducted in a blatantly unconstitutional way; the genuineness
and fairness of the election had been stifled at birth.
- Advocate
Gauntlett then dealt with the first of MorganTsvangirai’s two
principal arguments, namely the argument relating to Section 158
of the Electoral Act. This section was enacted by Parliament in
1990, and purports to give the President power to make any election
law he sees fit.
- Section 158
of the Electoral Act, argued Advocate Gauntlett, offends against
the Zimbabwe Constitution, which states that only Parliament can
make electoral laws. Furthermore, the granting of unlimited law-making
power to the President is fundamentally destructive of the principle
of separation of powers which underpins all democracies.
- Mr Gauntlett
submitted that the effect of Section 158 was to create the extraordinary
spectacle of one of the contestants in the Presidential Election
setting himself up as the rule-maker for that election, using
that rule-making power for self-serving purposes.
- Advocate
Gauntlett argued that Section 158 of the Electoral Act was such
a usurpation of power as has not been seen since the battle between
Parliament and the King in England in the 17th Century.
- Advocate
Gauntlett contended on behalf of Mr Tsvangirai that it was beyond
rational debate that Parliament cannot delegate to the President
law-making functions which have been allocated to it by the Constitution.
The Constitution of Zimbabwe says clearly that only Parliament
can make electoral laws; therefore the President cannot do so.
- Advocate
Gauntlett went on to point out that only days before the 2002
Presidential Election, Robert Mugabe used Section 158 to make
rules which radically altered, in his favour, the way in which
the election was conducted.
- What makes
Section 158 particularly offensive, said Advocate Gauntlett, is
that it imposes no restrictions whatsoever on the President; he
is given unrestricted power to make any election laws he chooses.
Section 158 is therefore fundamentally destructive of Parliament’s
right to legislate, and constitutes a blank cheque drawn on the
political will of the Zimbabwean people.
- Because Section
158 was enacted in violation of the Zimbabwean Constitution, it
was void from the moment of that purported enactment. Therefore,
all rules and regulations made by the President in terms of Section
158 were invalid. Because those
rules related to issues of vital importance to the conduct of
the election, the election itself was fatally flawed, cannot stand
and should be set aside.
- Advocate
Gauntlett then turned to the second of Morgan Tsvangirai’s two
principal legal arguments, namely the argument concerning the
Electoral Supervisory Commission ("ESC").
- Section 61
of the Zimbabwe Constitution, said Advocate Gauntlett, stipulates
that an ESC of 5 members must be created, with responsibility
for supervising registration of voters and the conduct of Presidential
and Parliamentary Elections. The Constitution makes it clear that
the ESC must be independent, "not subject to the direction
or control of any person or authority."
- Advocate
Gauntlett pointed out that it is perfectly obvious from the Constitution
that the ESC is an integral part of the election process; the
ESC is the only body which may register voters and conduct elections.
- However,
Robert Mugabe, for reasons which he has chosen not to disclose,
appointed only four members of the ESC, not the required five.
From the outset, therefore, the ESC was not validly constituted,
and could not therefore, as a matter of law, conduct or supervise
the election.
- Furthermore,
Robert Mugabe, only 4 days before the election, made a regulation
which fundamentally affected the constitutionally-protected independence
of the ESC, by compelling the ESC (in violation of Section 11
of the Electoral Act) to take on as staff persons who were not
members of the public service and who were appointed by a Minister
nominated by Robert Mugabe, even if the ESC did not need or want
such staff.
- Advocate
Gauntlett argued that without an independent ESC in place, properly
constituted and compliant with the Constitution and the Electoral
Act, the election did not take place in terms of the most basic
requirements of the Constitution, and was therefore a nullity.
- Advocate
Gauntlett also dealt with the principal submissions made by Robert
Mugabe’s lawyers in attempting to rebut Morgan Tsvangirai’s legal
arguments. These
submissions, said Advocate Gauntlett, were:
- frivolous
- constituted
ankle-biting procedural manoeuvring
- without
merit
- obsessive
endeavours to cut down access to the courts by ordinary citizens
- a contrived
attempt to escape addressing the merits of the matter.
- One of Robert
Mugabe’s principal arguments, set out in his court papers, is
that Morgan Tsvangirai does not have legal standing or locus
standi to mount his court challenge. In response to this
argument, Advocate Gauntlett pointed out that Section 102 of the
Electoral Act expressly permits an unsuccessful candidate to challenge
the validity of an election result. Furthermore, said Advocate
Gauntlett, the argument that the leader of the official opposition,
one of the two main candidates in the election, couldn’t come
to court to challenge the validity of that election was startling
and frivolous. He said also that other, shorter Anglo-Saxon words
could have been used to describe such an argument.
- In support
of his attack on Robert Mugabe’s contention that Morgan Tsvangirai
lacks legal standing, Advocate Gauntlett cited an battery of Zimbabwean
and international authorities which clearly demonstrates that,
in law, Morgan Tsvangirai has the necessary legal standing.
- Another
of Robert Mugabe’s principal arguments, mounted as a defence to
Morgan Tsvangirai’s claim that the Election was not conducted
in accordance with the provisions of the Constitution, is that
the High Court does not have jurisdiction to rule on matters dealing
with an alleged breach of the Constitution. Robert Mugabe’s argument
is that only the Supreme Court, and not the High Court, can make
rulings on the Constitution; because the Electoral Act requires
a challenge to an election to be brought in the High Court and
not in the Supreme Court, Morgan Tsvangirai is barred from alleging
that the election was conducted in violation of the Constitution.
- In answer
to this argument, Advocate Gauntlett pointed out that Sections
13 and 23 of the High Court Act confer on the High Court full
original Civil and Criminal jurisdiction over all matters in Zimbabwe.
This jurisdiction clearly includes the making of rulings on the
meaning and effect of the Constitution, and alleged breaches of
the Constitution. Advocate Gauntlett cited some 40 High Court
decisions in which that court had made rulings about provisions
of the Constitution, as evidence that the High Court has now and
always has had the jurisdiction to do this.
- Therefore,
concluded Advocate Gauntlett, the point raised by Robert Mugabe
is an impudent, astonishing and startling submission, wholly without
merit.
- It is anticipated
that the lawyers for Robert Mugabe and the Electoral Supervisory
Commission will begin their answering oral arguments tomorrow
morning, 4 November 2003.
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