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Intense litigation, negotiations and calls for peace precede the much awaited referendum
Zimbabwe Human Rights NGO Forum
March 15, 2013

In a week reminiscent of the eve of the American elections when President Obama and Mitt Romney criss-crossed swing states, Zimbabwean activists have been in and out of the courts in a bid to create a level playing field before the referendum scheduled for tomorrow. The litigation is indicative that although the referendum on its on might appear to be a non-event due to political consensus, the way it is carried out is a crucial pre-cursor to the watershed elections latter in the year. It is widely anticipated that the outcome will determine not only when but also how President Mugabe announces the election dates. As was the case in the 2000 referendum, the outcome of the vote might have a direct bearing on the campaign strategies that the political parties will adopt. In this issue, we report on major legal cases that have preceded the constitutional referendum. We also publish Zimbabwe Lawyers for Human Rights’ pre-referendum statement and a statement calling for peace by Heal Zimbabwe.

Among the major cases that flooded the courts this week:

• The Supreme Court on Wednesday 13 March 2013 set aside High Court Judge President George Chiweshe’s ruling in which he had stated that the powers conferred upon President Mugabe to proclaim a referendum are not justiciable. The Supreme Court ruled that Justice Chiweshe should have assumed jurisdiction to enquire into the issue of the irrationality and gross unreasonableness of President Mugabe’s proclamation of 16 March 2013 as the referendum date. However, the Supreme Court also dismissed the NCA’s appeal to delay the weekend referendum on the merits.
• In a separate case, the High Court has set aside the Zimbabwe Electoral Commission (ZEC)’s decision to refuse Zimbabwe Human Rights Association (ZimRights) accreditation to observe the March 15 Referendum. However, according to information from Crisis in Zimbabwe Coalition Press Release dated 14th March 2013, the issue of Zimbabwe Election Commission’s (ZEC) refusal to accredit local NGOs to observe the referendum appear to have been settled out of court when the political principals unanimously wrote to ZEC in response to complaints by civil society organisations.
• In a related but separate case, High Court Judge Justice Samuel Kudya has exonerated ZimRights Director Okay Machisa who was charged with forgery and fraud in January 2013 by setting aside his placement on remand. Justice Kudya freed Machisa after declaring that the placement on remand of the ZimRights director by Harare Magistrate Tendai Mahwe on 15 and 16 January 2013 is invalid and that he should be immediately removed from remand.
• Earlier in the week, Africa's premier human rights organisation, the African Commission on Human and People's Rights had passed a provisional measure allowing exiled Zimbabweans and those living abroad to vote in the Referendum slated for March 16 2013 and the general elections thereafter. The decision of the ACHPR followed a complaint filed on 27 December 2012 by Zimbabwe Lawyers for Human Rights acting on behalf of Gabriel Shumba, Kumbirai Tasuwa Muchemwa, Gilbert Chamunorwa, Diana Zimbudzana and Solomon Sairos Chikohwero.

The African Commission's decision, although it comes too late for the referendum, is significant as it appears to herald a new era for this body which had historically been known for inordinate delays in making decisions. This decision provides adequate raw material for further litigation should the government not take immediate steps to recognise and implement this decision.

In this week that has been full of fireworks, Heal Zimbabwe has issued a statement calling upon all peace loving Zimbabweans to observe peace as the country go for this Saturday’s constitutional referendum. The referendum due on the 16th of March comes at a delicate time for Zimbabwe as the Government of National Unity is nearing its extinction with elections expected in few months to come, the statement says.

Zimbabwe Lawyers for Human Rights have also issued a comprehensive pre-referendum statement which makes an interesting read.

Visit the Zimbabwe Human Rights NGO Forum fact sheet

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