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Subverting Justice: The Role of the Judiciary in Denying the will of the Zimbabwean Electorate since 2000
The Solidarity Peace Trust
March 2005

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Introduction
Five years ago this June, parliamentary elections were held in Zimbabwe. Both the ruling Zimbabwe African National Union - Patriotic Front (ZANU (PF)) and the opposition Movement for Democratic Change (MDC) fielded candidates in all of the 120 constituencies. When the results were announced, ZANU (PF) was declared the winner of sixty-two of the constituencies, while the MDC won fifty-seven of the constituencies.¹ The MDC, however, alleged that the elections were marred by, inter alia, widespread violence and voter intimidation, and in accordance with Zimbabwe's electoral law, challenged the election results in thirty-nine of the constituencies.

A Presidential Amnesty in October 2000, pardoning all politically motivated crimes except rape and murder, ensured that perpetrators of political violence would not be brought before the Courts and that victims' stories would be officially silenced. The electoral petitions were therefore intended to serve the dual purpose of challenging the outcomes in 39 constituencies and also making an official part of the Zimbabwean Court record, the horrific accounts of murder, torture, assault and property destruction that formed the backdrop to the 2000 election.
Two years later, Zimbabwe's electorate again went to the polls in the 2002 presidential elections. Amid allegations of systematic violence and intimidation, polling irregularities, and vote rigging, Robert Mugabe was re-elected to an additional six-year term in office.² The MDC refused to recognize the outcome of the election and likewise challenged the election results in the High Court of Zimbabwe.

Conclusion
Based on the foregoing examination of the allegations and findings in the presidential electoral challenge and the thirty-nine parliamentary election petitions, the following conclusions can be drawn:

First, the High Court of Zimbabwe found that leading up to the 2000 parliamentary elections, ZANU-PF agents murdered,³ abducted and tortured,⁴ brutally assaulted,⁵ threatened to kill,⁶ and burned down the homes of MDC officials and party supporters.⁷ In nearly half of the cases heard by the High Court, the court held that the ZANU-PF candidate had not been duly elected and set aside the election results on the grounds that corrupt practices had been committed or that gross intimidation prevailed to such an extent that persons of ordinary nerve and courage would have been unduly influenced from exercising their right to vote. Based on these findings, it must be concluded that for a substantial number of voters in the 2000 parliamentary elections, freedom of election did not exist.

Second, in its landmark 2001 decision, the Supreme Court held that the petitioners in the electoral challenges had a constitutional right "to be afforded a fair hearing within a reasonable time" and "to seek practical and meaningful redress." However, despite the fact that the election results were invalidated by the High Court in nearly half of the 2000 parliamentary election petitions heard by the court, the Supreme Court—under the new Chief Justice, Godfrey Chidyausiku—stalled the appeals and not a single seat in Parliament was ever vacated. Moreover, three years after the 2002 presidential election, the hearing for the factual allegations in the presidential electoral challenge has still not been set down by the High Court, and Judge Ben Hlatshwayo has still not provided reasons for dismissing Morgan Tsvangirai's legal claims. It must therefore be concluded that the gross failure of the judiciary to resolve the electoral challenges in a "reasonable time" and to afford the aggrieved parties "meaningful redress" was a violation of the petitioners' constitutional rights.

Finally, the judiciary's failure to enforce electoral morality also meant that the courts failed in their duty to "bequeath" freedom of election to "future generations." One need only look to the 2004 parliamentary bi-election held in Zengeza to see the human cost of this failure. In Zengeza, on the second day of polling—March 28, 2004—ZANU-PF cabinet minister Elliot Manyika is alleged to have brazenly shot and killed in public MDC activist Francis Chinozvina. In the same manner as the previous elections, the ZANU-PF candidate was subsequently declared the winner of the election, he has retained his seat in Parliament despite an electoral challenge brought by the MDC, and Elliot Manyika has not been prosecuted for the murder of Francis Chinozvina.

The judiciary's failure to enforce electoral morality has sent a repeated and unmistakable message that the will of the Zimbabwean people is less important than protecting those who violate human rights at the behest of the ruling party.

Twenty out of the original thirty-nine ZANU (PF) respondents facing electoral challenges will stand once more for election in the same constituencies. All have been accused of complicity in election misconduct and some are implicated in heinous crimes; four of the 2005 ZANU (PF) candidates were found by the High Court to have acted illegally in the course of the 2000 electoral process and to be not duly elected. Yet they saw out their terms and now stand again. Many thousands of voters in these constituencies can be expected to have very little faith in the parliamentary process and in any democratic right of appeal.

Over the last five years, freedom of election has been consistently subverted in Zimbabwe with the complicity of the judiciary. The electorate goes into the 2005 election against this background, with their faith in democratic processes seriously undermined. This alone is enough to render the forthcoming election not free and not fair.

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1 A third party candidate for ZANU Ndonga, Kumbula Wilson, won one seat in Parliament, Chipinge South. See ELECTORAL SUPERVISORY COMMISSION REPORT ON THE MARCH 2002 PRESIDENTIAL, MAYORAL AND COUNCIL ELECTIONS 31 (2002).
2 The official results reported by the Electoral Supervisory Commission indicate that Robert Mugabe (ZANU (PF)) received 1,681,212 votes (55.2% of the total votes cast), while Morgan Tsvangirai (MDC) received 1,262,403 votes (41.4% of the total votes cast). See ELECTORAL SUPERVISORY COMMISSION REPORT ON THE MARCH 2002 PRESIDENTIAL, MAYORAL AND COUNCIL ELECTIONS, 31 (2002).
3 See, e.g., supra text accompanying note 98.
4 See, e.g., supra text accompanying note 99.
5 See, e.g., supra text accompanying note 114.
6 See, e.g., supra text accompanying note 104.
7 See id.

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