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A
review of election petitions following the parliamentary elections of
2000
Sokwanele
October 15, 2004
Violence, intimidation
and procedural irregularities have been features of Zimbabwean elections
since the pre-independence election of March 1980. Doubtless they have
always produced a flawed outcome. Possibly we have had members of parliament
throughout the life of the nation who were never genuinely elected by
the people. But the elections of June 2000 reached a new low on the credibility
scale. And what has happened since then shows us that there is no longer
any legal protection for the process of ensuring that elections are honestly
conducted and the declared winners fairly represent the peoples’ choice.
The 2000 elections
were held in an atmosphere of extreme tension. Four months earlier the
constitutional referendum had handed ZANU PF their first loss at the ballot
box and for the first time they felt their hold on state power seriously
threatened by a nation-wide, organised and popular opposition party, the
MDC. Before the end of February they had responded to the defeat by launching
a programme of violent land invasions, which rapidly revealed itself as
part of a violent election strategy. A governing party which was determined
to retain its grip on power lifted the levels of violence, intimidation
and deliberate subversion of the electoral process to far higher levels
than had ever been experienced before.
In view of the campaigning
environment, MDC’s success in winning 57 seats to ZANU PF’s 62 was remarkable.
But they felt they
had been cheated out of several more victories and should rightly have
gained a substantial majority of the 120 parliamentary constituencies.
The Zimbabwe Electoral Act provides for a judicial petition against an
election result by any candidate who feels he or she has been prejudiced.
Such a challenge had been made by the spirited Margaret Dongo who contested
a Harare constituency as an independent in 1995. She challenged her defeat
by ZANU PF in the High Court, the result was nullified, and in the ensuing
by-election she won the seat. The MDC thus had every reason to put faith
in successful court challenges to the ZANU PF wins in constituencies where
violence and intimidation and electoral malpractices could be proven.
The Electoral Act
lays down required electoral procedures. Parts XX and XXI describe Corrupt
Practices and Illegal Practices which are offences and which attract fines
and prison terms. Part XXII outlines when an election can be voided as
a result of these practices, while Part XXIII lays down the procedure
for election petitions by any aggrieved parties.
The Act is quite specific
in describing what constitutes corrupt and illegal practices. Corrupt
practices include treating (providing food, drink, entertainment or lodging
in exchange for a vote), undue influence (violence and threats of violence),
bribery (some overlap with treating but includes payment of election officials
to influence the outcome), personation (voting in the name of another
person or voting more than once), illegal transport (carrying a person
to vote in a constituency where they are not registered). Illegal practices
are many, but those featuring in the MDC election petitions include distributing
misleading facsimile ballot papers, carrying on campaigning activities
on polling day within 200 metres of a polling station, publishing a false
statement about the death or withdrawal of a candidate, obstructing a
voter at or on the way to or from a polling station. All of these practices
attract a fine and/or a period of imprisonment; the High Court may also
deprive a person convicted of an illegal practice of his or her vote for
a period of five years, or from holding public office.
How much corruption
or illegality is required for an election result to be invalidated? To
a certain extent this is left to the discretion of the court, but the
Act does lay down guidelines. Section 24 states that if the High Court
rules that where "any corrupt or illegal practice" has been
committed, by the candidate or any of his agents, or with their knowledge
and consent, the election will be declared void. However, where the offence
is treating or undue influence or any illegal practice, it will not invalidate
the election if the candidate or his agent did not agree to the practice,
took all reasonable precautions to prevent the corrupt and illegal practices,
and the offences were of a trivial, unimportant or limited character.
Between July 17 and
27, MDC losing candidates in 40 constituencies filed petitions challenging
the ZANU PF victories. In many of these contests, the margin of votes
cast for the two candidates was relatively small, while in others it was
very wide. However, the closeness of the contest is not an issue in the
petitions. The issue is the fairness of the election. One incident of
violence might intimidate hundreds or even thousands of voters, causing
them to stay away from the polls or to change their vote. One polling
agent prevented from entering the polling station could mean that hundreds
of people not on the voters roll were allowed to vote without anyone observing
the malpractice.
Given the level of
violence surrounding the election campaign and the large scale of irregularities
on polling day, it should have been very easy for the MDC to gain High
Court rulings voiding virtually all the election victories of ZANU PF.
However, this was not necessary. A victory in only 4 would deprive ZANU
PF of their majority of elected seats and a victory in 18 would deprive
them of the overall majority in Parliament, even considering the 30 non-elected
members who were all likely to be ZANU PF supporters. Anything in between
would render the ruling party’s hold on Parliament tenuous at best.
The evidence gathered,
documented and presented in support of the petitions makes chilling reading
– murders, torture, serious assaults, burning of property, and thousands
of cases of threats of the above. Examples from only two constituencies
will make it clear: in Gokwe East, one MDC activist was murdered by ZANU
PF supporters; 17 assaults were proven, including two people beaten unconscious
and two others abducted and forced to jump into a dam; burning and damaging
of houses forced whole families to flee. In Chiredzi North fifteen documented
assaults included assaults on children as young as two years old, houses
of MDC supporters were burned, others had windows smashed, a store of
an MDC supporter had the windows smashed and was looted more than once.
The owner was threatened with decapitation, village heads were threatened,
MDC supporters were threatened with being killed, and a teacher was threatened
with removal, had the windows of his house smashed, and stones thrown
at him.
In virtually all of
the incidents cited in the petitions, the perpetrators of the actions
are named or are identified by their use of ZANU PF paraphernalia, slogans,
or vehicles. In many constituencies cases of torture were documented,
including torture of the candidate himself by CIO (Chikomba).
Two points must be
made about the evidence presented in the petitions. Firstly, the incidents
documented are in all cases only a fraction of those that took place.
Many were never reported while many other victims did not make statements
in affidavits for fear of future reprisals. Secondly, where such actions
take place, the demonstration effect of a single brutal act does its work
on tens, hundreds or thousands of others, which is of course the intention
in the first place.
In addition to the
violence and threat of violence (described antiseptically in the Act as
"undue influence") virtually all of the election petitions include
allegations of illegal and irregular practices at the polling stations
and irregularities in counting. Frequent practices mentioned are: various
forms of prohibited campaigning within 100 metres of the polling station,
MDC polling agents prevented from entering the station and prevented from
accompanying the ballot boxes, missing ballot boxes, sample ballots with
a large X next to ZANU PF, voters being instructed to vote for ZANU PF
as they entered the polling station, ink detectors not working, voters
being allowed to vote again even though ink showed on their hands, irregularities
in the voters roll, ZANU PF torture bases being used as polling stations,
and perpetrators of torture being polling officers.
Of the forty petitions
filed, eighteen have been heard by the High Court; in two of these the
MDC petitioners did not turn up at the court, so the cases were dismissed.
Sixteen of the petitions originally filed were not proceeded with, three
because the holder of the seat died before the case could be heard. Some
were withdrawn because of threats by ZANU PF, either against the candidate
himself, or against witnesses. In one case the candidate had his farm
invaded and taken away, in another the candidate cannot be located, in
still others the candidates decided not to proceed because there had been
such long delays in bringing the matter to court. Five petitions are still
waiting to be heard by the High Court.
Of the sixteen petitions
contested, seven were judged in favour of the MDC, nullifying the election
result. Nine were given in favour of ZANU PF. In Buhera North, where Morgan
Tsvangirai was the candidate, the judge ruled that corrupt practices in
the form of undue influence which was not of a "trivial, unimportant
and limited character" forced him to declare the election result
void. In Chiredzi North, the judge said that corrupt practices had not
been proved, but the widespread violence and intimidation of the electorate
negatived the concept of a free election, and she therefore declared the
election void. In Gokwe North, the judge ruled that the candidate had
not taken precautions to prevent corrupt practices and the ones that took
place were not trivial, unimportant or of a limited character. In Gokwe
South the candidate was severely assaulted and a rumour spread that he
had died; ZANU PF was declared to be guilty of corrupt practices and the
result declared void. Hurungwe East and Makoni East were also voided on
account of widespread intimidation. In the Mutoko South constituency,
the judge noted that the MDC candidate had been kidnapped by war veterans
and brought to a meeting where the ZANU PF candidate was present and forced
to contribute to the ruling party’s campaign. The judge also noted that
the law did not permit him to take into consideration whether the violence
and intimidation affected the result; the fact that such activities took
place prevents a colluding beneficiary from being declared a winner.
In nine constituencies
the election petition was rejected. In Chiredzi South, although the MDC
candidate led evidence of widespread serious intimidation, prevention
of campaigning, threats of assaults and killing, as well as irregularities
and illegalities at polling stations, the judge ruled that there were
only a few incidents and they were not of a general nature. The case in
Chinhoyi rested mainly on bribery and treating, which the judge dismissed
as unproven. The ruling against the MDC in Goromonzi has not been supported
by any written explanation by the judge. In other cases, similar explanations
were given for rejection, even though violence was proven. One judge commented
that "Senseless political violence that seeks to punish the victim
for belonging to a different political party is not undue influence under
the Act…since the violence was targeted at the MDC as a party and not
at a particular person the first element of the offence of undue influence
is not proved." Another, rejecting the petition for Murehwa North,
said that the violence was only in the business centres and the south-west
corner of constituency, therefore it was not widespread, even though nearly
twenty witnesses testified to abductions, beatings and destruction of
property affecting many more people. The judge went on to disregard the
Act’s provisions when he referred to an English judgment which allows
the judge to consider whether the corrupt practices in fact could have
affected the result. He held that the intimidation could not have affected
the outcome because only 5 out of 12 witnesses said they had failed to
vote the way they wanted due to intimidation. This is nearly half, and
half of those who were brave enough to stand up in a court and testify
to ZANU PF violence!
ZANU PF raised one
petition against the MDC winner on the sole grounds that some pages of
the voters roll were missing. The court then voided this election. However,
numerous irregularities claimed in the MDC petitions were disregarded
when judgment was being given. No one could be blamed for concluding that
many of the judgments given were not impartial.
One might expect that
a Member of Parliament whose election was voided by the High Court would
be required to step down. However, that is not what the Electoral Act
provides for. It rightly allows an appeal to the Supreme Court, but more
controversially allows the declared winner to remain in place until an
appeal is heard. Thus none of the defeated candidates whose election was
voided stepped down, and all who are still alive remain as Members of
Parliament up to today.
However, ZANU PF must
have been disturbed by the prospect of results being overturned and their
supporters and candidates convicted of corrupt and illegal practices,
because they developed new tactics to prevent the electoral law from running
its course.
- In October 2000,
the President issued a Clemency Order granting
- amnesty to anyone
who had committed crimes in the process of campaigning. Only the crimes
of murder and rape were excluded. Thus all those who committed common
law offences or offences included as corrupt practices were to be exonerated
without even being brought to court, and the sections of the Electoral
Act providing for their punishment or the withdrawal of their right
to vote and to hold public office were rendered inoperative. The law
could not punish criminals.
- In December 2000,
before the first petitions were to be heard, the President issued a
statutory instrument, stating that the election had been free and fair
and that any corrupt or illegal practices were not violations of the
Electoral Act. The MDC successfully challenged this absurdity as unconstitutional
and proceeded with the petitions. But this was before ZANU PF drew its
next poisoned arrow.
- As the first judgments
were being handed down in 2001, some of them overturning ZANU PF victories,
ZANU PF already had an attack on the judiciary under way. This resulted
in most of the senior judges being forced to retire or resign, some
to leave the country. Within two years almost the entire Supreme Court
had been replaced, and those judges who remain or are newly appointed
know that what has happened before can happen again, and they will be
wise not to aggravate ZANU PF. Others are openly ZANU PF supporters,
some even having received illegally acquired farms, and one having himself
defied a court order.
- But perhaps even
more significant, those who administer the courts were now firmly in
the pockets of ZANU PF. Although the Electoral Act requires an election
petition to be submitted within 30 days of the announcement of an election
result, no time limit is given for the hearing of a petition or of an
appeal. But the rules governing petitions state that the matters should
be dealt with "as quickly as possible". The administrators
of the courts have simply failed to allocate sufficient judges and to
set down petitions and appeals for trial.
Thus there are still
five petitions which have never been heard, and only three appeals have
been heard; those filed in 2001 began to be heard in 2004, but by October
the Supreme Court is yet to give any judgment. The strategy of delaying
the judicial process has effectively nullified the right of petition provided
for in the Electoral Act, as well as the protection of the law enshrined
in the Constitution. More than four years after the election, when the
life of the Parliament is about to expire, not a single petition has been
finalised.
In spite of the large
number of election petitions filed, the voluminous amount of evidence
of serious corrupt and illegal practices and procedural irregularities,
not a single ZANU PF M.P. has been forced to vacate a seat won through
violence and corruption. Rather, the perpetrators of violence and other
criminal acts have been pardoned, and the ability of the courts to provide
justice to the candidates and the electorate has been erased.
It is an important
aspect of a free and fair election that the participants have the right
to challenge the result in an impartial court of law; the fate of the
MDC election petitions shows clearly that this right has been denied in
Zimbabwe in respect of the 2000 parliamentary election. A similar fate
has befallen the legal challenge to the 2002 presidential election, which
is still tied up in a judicial spider web two and a half years on.
There should be no
need to further demonstrate the determination of the present regime to
subvert the processes by which the electorate select their representatives
to govern them. For the past four years we have had parliamentarians sitting
smugly in their seats, knowing full well that they have in fact been rejected
by the people. When an electoral system fails this badly it can no longer
be graced with the adjective democratic; it is rather a means for a dictatorship
to retain a façade with which it attempts to persuade the naïve
that it holds some form of legitimacy.
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