2.1 Before
describing the oral arguments put up on behalf of Robert Mugabe
and the ESC, an explanation of certain elementary rules of evidence
and procedure is necessary.
2.2 Morgan
Tsvangirai's court challenge to the March 2002 Presidential Election
is a form of legal procedure known as a trial.
2.3 The Electoral
Act stipulates that the first step in a trial which involves a
challenge to the validity of an election result, is the filing
of Affidavits by the challenger setting out his or her causes
of complaint. The person who has been declared the winner of the
election, and any other parties having an interest in the matter,
then file their opposing affidavits. The challenger replies to
those opposing affidavits by filing his/her own answering affidavits.
2.4 Then a
hearing is held. If there are facts which are not common cause
between the parties, ie: which one or more of the parties deny
or dispute, then witnesses are called to give oral testimony on
those facts, and to be cross-examined.
2.5 If all
the parties involved in the trial agree on the relevant facts,
but disagree as to the conclusions of law to be drawn from those
facts, the hearing will not involve oral testimony by witnesses,
but will involve only the presentation of oral legal argument
by the lawyers for the parties, with each party's lawyers seeking
to convince the Judge that that party's interpretation of the
legal implications flowing from those facts is the correct one.
2.6 It is
therefore a not infrequent occurrence that no oral testimony of
witnesses is presented at a trial, and that the relevant agreed
or undisputed facts are recorded in affidavits or some other form
of written statement.
2.7 Where
affidavits are presented by the parties, how does one determine
what facts are undisputed or common cause?
2.7.1 Obviously,
where one party admits, in his or her affidavit, a fact alleged
by another party in that other party's affidavit, that fact
is common cause.
2.7.2 In
addition, where one party alleges a fact in his or her affidavit,
and the other party does not respond to or deny that allegation,
then that other party is taken to have admitted that allegation
as being true, and that allegation then becomes common cause
between the parties.
2.8 Although
Robert Mugabe and his fellow Respondents disputed, in their affidavits,
many of the facts alleged by or on behalf of Morgan Tsvangirai
in his Founding Affidavits, Robert Mugabe and his fellow Respondents
either admitted or did not dispute a number of other facts.
2.9 The legal
argument presented at the hearing of Morgan Tsvangirai's election
challenge on 3 and 4 November dealt with the legal effect or interpretation
of those facts which were common cause between the parties, ie:
those facts which were alleged by Morgan Tsvangirai in his affidavits,
and which were admitted or not denied by Robert Mugabe and his
fellow Respondents in their own affidavits.
2.10 Among
the facts which, on the basis of the elementary rules described
above, were common cause between the parties, were the following:
2.10.1 Robert
Mugabe had, in the run-up to the 2002 Presidential Election,
used Section 158 of the Electoral Act to issue a number of Statutory
Instruments which significantly changed the rules applying to
the Presidential Election, including the rules relating to registration
of voters and the conduct of the election itself. The contents
of all those Statutory Instruments were not in dispute.
2.10.2 Morgan
Tsvangirai was a candidate in the election, and Robert Mugabe
was declared the winner of that election.
2.10.3 At
the time of the March 2002 Presidential Election, only four
members had been appointed to the ESC, and not the five members
required by the Zimbabwe Constitution.
2.10.4 The
High Court had, on March 2002, with the consent of the Minister
of Justice and Robert Mugabe, issued an order requiring a third
day of voting to be held throughout the whole of Zimbabwe on
11 March.
2.10.5 That
Court Order was not complied with; in 80% of Zimbabwe's 120
constituencies, the polling stations did not open at all on
11 March 2002; the remaining 20% of Zimbabwe's polling stations,
although they did open for voting on 11 March, did not remain
open for the required minimum of 8 continuous hours.
3.1 Robert
Mugabe, as First Respondent, was represented by Mr Hussein. After
Mr Hussein presented his oral argument, Advocate Gauntlett and
Advocate De Bourbon replied on behalf of Morgan Tsvangirai. In
the description of Mr Hussein's argument set out below, the replies
given by Advocates Gauntlett and De Bourbon are recorded in brackets.
3.2 Mr Hussein
began his oral argument by reading from and commenting on facts
alleged by Robert Mugabe in his opposing affidavit, as follows:
3.2.1 In
1997 Robert Mugabe took the "bold and brave" decision
to resolve a previously unresolved issue; Robert Mugabe "bit
the bullet" and, impelled by conviction and principle,
initiated the "Land Resettlement Programme".
3.2.2 In
response to this initiative, Britain, a "former colonial
power", vowed that Robert Mugabe would be "forced
to relinquish power".
3.2.3 "Multilateral"
organizations such as the International Monetary Fund, organizations
which are "dominated by the US and Britain", withdrew
their support for Zimbabwe.
3.2.4 In
1997, "when the first batch of farms for resettlement were
designated, the Zimbabwe dollar tumbled to an all-time low".
3.2.5 Just
before the March 2002 Presidential Election, Tony Blair had
stated, in the British Parliament, that it was "absolutely
outrageous" that Morgan Tsvangirai, a Presidential candidate,
had been charged with treason during the Presidential Election
campaign; that the people of Zimbabwe were living in a "hell
hole"; that Robert Mugabe was "dictatorial";
that sanctions ought to be applied against Zimbabwe; and that,
if Britain did not take action, the "right result"
would not be obtained in the March 2002 Presidential Election.
3.2.6 After
Robert Mugabe had "declared his principles" by initiating
the Land Resettlement Programme, the MDC was "generously
endowed" with foreign funding.
3.2.7 As
if this was not enough, "Britain and the MDC got together
to persuade the US" to pass domestic legislation to ensure
that the "people of Zimbabwe voted properly" in the
2002 Presidential Election, ie; against Robert Mugabe.
3.2.8 Morgan
Tsvangirai and "his party cheered on Britain and the US
to isolate" Robert Mugabe.
3.3 Mr Hussein
continued with his preliminary remarks as follows:
3.3.1 The
"machinations" described above had never before "been
witnessed in Africa".
3.3.2 Unfortunately
for Morgan Tsvangirai, "these machinations came to naught",
and Robert Mugabe won the election.
3.3.3 In
bringing his court challenge against the election result, Morgan
Tsvangirai was seeking to achieve what he failed to win in the
political arena. His court challenge was a case of a political
fight "spilling into court".
3.3.4 The
High Court should be "extremely wary when a losing candidate
comes to court to fulfill an agenda he failed to achieve on
the political battleground".
3.3.5 Morgan
Tsvangirai's court challenge was "devoid of any merit",
and "must rank as one of the weakest petitions to come
before the High Court".
3.3.6 "Absolutely
no authority has been cited" by Morgan Tsvangirai's legal
team "to justify how a person in an election petition can
invalidate every single law in connection with the election."
(In fact, in their written summary of their legal arguments,
some 200 pages in length, Morgan Tsvangirai's lawyers had cited,
in support of those arguments, more than 100 decided cases and
statutes. Also, Morgan Tsvangirai was seeking to declare invalid
only one section of the Electoral Act, Section 158, and the
Statutory Instruments issued by Robert Mugabe in terms of that
Section.)
3.4 (In reply,
Advocate Gauntlett stated that it would be unnecessary - from
a legal perspective - and undignified to respond to Mr Hussein's
initial remarks, and gave them no further attention.)
3.5 After
his initial remarks, Mr Hussein commenced presentation of his
substantive legal arguments.
3.6 Mr Hussein's
first contention was to aver to Mr Justice Hlatshwayo that "you
have no facts before you - absolutely nothing". Mr Tsvangirai's
lawyers, he said, "were doing cartwheels" when they
argued that certain facts were common cause because Robert Mugabe
had not denied those facts in his affidavits.
3.7 "What
facts" Mr Hussein asked the Judge, rhetorically, "do
you have to prove that polling did not take place on the third
day?" Mr Tsvangirai's lawyers said Mr Hussein, had "not
put up any facts" at all.
3.8 Mr Hussein
submitted to the Judge that "what you are asked is to come
up with a decision based on the flowery language" of Mr Tsvangirai's
legal team.
3.9 A trial
involving presentation of oral testimony of witnesses "was
paramount" said Mr Hussein. The matter could not "be
resolved on flimsy legal argument".
3.10 (Mr Hussein
had apparently never heard of, or had forgotten, the elementary
rules of procedure and evidence described in paragraph 2 above.
He had also apparently overlooked the hundreds of pages of affidavits
put up by Morgan Tsvangirai, containing a host of factual allegations.)
3.11 Mr Hussein
went on to contend that Advocate Gauntlett was seeking "to
declare 99% of Zimbabwe's laws invalid".
3.12 The legal
arguments raised by Morgan Tsvangirai's lawyers were "unnecessary
clutter" in the view of Mr Hussein. (He had apparently forgotten
that all court cases are decided, following legal argument from
the parties' lawyers, by application of the relevant law to the
agreed or determined facts.)
3.13 Mr Hussein
contented that, in the type of court challenge mounted by Morgan
Tsvangirai, no order could be sought (as Morgan Tsvangirai was
seeking in respect of Section 158 of the Electoral Act) to declare
a law unconstitutional. (In reply Advocate Gauntlett emphasized
that Section 102 of the Electoral Act stated that a challenge
to an election result could be brought on the basis of "any
cause whatsoever", including on the basis that the election
law was unconstitutional.)
3.14 Mr Hussein
asserted that the High Court does not have the jurisdiction to
decide whether a law violates the Constitution, and that the question
of whether Section 158 of the Electoral Act - which gave unrestricted
power to Robert Mugabe to make election laws - was unconstitutional
would have to be referred to the Supreme Court. (Mr Hussein did
not attempt to explain how this assertion was compatible with
the fact that the High Court, as shown in a list of more than
40 decided cases put up by Morgan Tsvangirai's legal team, had
ruled on the constitutional validity of otherwise of statutes
passed by Parliament.)
3.15 Morgan
Tsvangirai did not have legal standing to come to the High Court
to challenge the 2002 Presidential Election result, said Mr Hussein.
(In reply, Advocate Gauntlett pointed out that the Electoral Act
expressly states that a court challenge can be brought against
an election result by any one who was an unsuccessful candidate
in that election.)
3.16 Mr Hussein
offered no oral argument, and cited no authorities, in respect
of any of the following questions (which questions, Morgan Tsvangirai's
lawyers had already argued, should be decided in Morgan Tsvangirai's
favour, and should lead to the Presidential Election being declared
a nullity):
3.16.1 Whether
Section 158 of the Electoral Act, which gave unrestricted power
to Robert Mugabe to make election law, was indeed unconstitutional
or not.
3.16.2 Whether
or not the election should be declared invalid if Section 158
was indeed found to be unconstitutional.
3.16.3 Whether the fact that the ESC was not validly constituted
was a basis for declaring the election a nullity.
3.16.4 Whether
or not the election should be declared invalid because no third
day of voting was held.
3.17 Mr Hussein
did, however, put up the following argument: "to set aside
the election of the President of Zimbabwe, the Commander-in- Chief
of its armed forces, and the person who signs all Zimbabwe's laws
in order to make them of force and effect, simply because three
lawyers appeared in court asking for this, would be a legal disaster."
4.1 Mr Chikumbirike's
first contention was that the court should make a ruling that
Morgan Tsvangirai had acted incorrectly in joining the ESC as
a respondent party to the litigation; that the ESC, despite the
fact that the Constitution gave it ultimate responsibility for
supervising the election, had no substantial interest in the case;
and that the ESC should be released from further participation
in the case, as were the Minister of Justice and the Registrar-General
in terms of the recent Judgment by Mrs Justice Guvava.
4.2 Mr Justice
Hlatshwayo said that the ESC should have made this application
for release earlier; that he would decide this question in due
course; and that Mr Chikumbirike should, in the meantime, proceed
with the rest of his argument.
4.3 Mr Chikumbirike
contented that the meaning of Section 61 of the Constitution,
which confirms the independence of the ESC by stating that it
should not be subject to the control of any person or authority,
is that not even the High Court can scrutinize its actions, or
hold it to account.
4.4 On the
question of whether the ESC had been properly constituted, Mr
Chikumbirike said that the ESC had in fact come into being in
1980 when the Constitution was enacted, because the Constitution
contained the words "there shall be an Electoral Supervisory
Commission …". Because the ESC had come into being by
operation of the Constitution, and not when its members were first
appointed, it was irrelevant whether or not the full complement
of five members had ever been appointed . (In reply Advocate Gauntlett
pointed out, to much laughter in the court that, on this reasoning,
there was no need ever to elect a President, or even members of
Parliament, because the Constitution said "there shall be
a President …" and "there shall be a Parliament
…")
