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Court cases fail to delay the Referendum - Constitution Watch 22/2013
Veritas
March 16, 2013

ACHPR Measure to Allow Diaspora Vote in Referendum Ignored by Government

The African Commission on Human and Peoples’ Rights [ACHPR] has passed a provisional measure allowing exiled Zimbabweans and those living abroad to vote in the Referendum on Saturday 16th March and the general elections scheduled thereafter. The Commission’s decision upheld the complaint that the applicants were being denied their rights and ruled that the applicants had made out a prime facie case that the present position was in breach of the African Charter on Human and Peoples Rights. The Commission accordingly granted a provisional order directing the government to provide all eligible voters living outside Zimbabwe the same voting facilities it affords to Zimbabweans working abroad in the service of the government. Provisional measures are binding or obligatory to stop or prevent a human rights violation. The State concerned is requested to comply before a final decision is taken in the case, and its Government is obliged under AU rules to report back to the Commission on its implementation of the provisional measure. There has been no evidence of State recognition or reaction to this ruling.

Supreme Court Rejected NCA Appeal on Case to Postpone Referendum

In a specially scheduled urgent hearing of this appeal on 13th March, the Supreme Court effectively confirmed 16th March as the date of the Referendum. First, the court decided that Judge-President Chiweshe had been wrong when on 28th February he decided that the President’s decision was not subject to judicial review by the High Court. Normally that would have resulted in the case being sent back to the High Court for Justice Chiweshe to consider the merits of the NCA’s complaint that the President’s decision to give only one month’s notice of the Referendum was “arbitrary, irrational and grossly unreasonable” and therefore invalid. But, in view of the urgency – the Referendum being only three days away – and because it was in as good a position as the High Court to decide the case on the papers lodged by the parties, the Supreme Court went straight on to consider the merits of the NCA case. On the merits the court unanimously decided the case against the NCA, holding that its evidence did not establish its complaint. The court therefore dismissed the appeal. Result: 16th March stands as the date for the Referendum.

Supreme Court Case on ZEC Refusal to Respond to Complaints by NO Vote Campaigners

On the afternoon of 15th March a case was heard that had been brought by Union leader Raymond Majongwe and International Socialist Organisation leader Munyaradzi Gwisai who had gone direct to the Supreme Court with an urgent chamber application seeking to stop the holding of the Referendum on 16th March. The grounds were that ZEC had done nothing about their complaints that their Vote No campaign was being stifled contrary to the Electoral Act. The court refused to hear the case on an urgent basis, saying the applicant’s request for it to do so had no merits; they had had plenty of time to act earlier but had not done so.

NCA Supreme Court Case on Validity of Referendum Also Dismissed

At another hearing later on Friday afternoon 15th March the NCA constitutional application was heard in the Supreme Court. The complaint was that the Referendum could not validly be conducted by the Zimbabwe Electoral Commission [ZEC] while it was led by an acting chairperson, who does not have the legal qualifications laid down by the Constitution for a substantive chairperson.

An hour or two before the hearing commenced, however, Justice Rita Makarau was sworn in at State House as the new ZEC chairperson. Justice Makarau had been chairperson designate of ZEC since the principals agreed on her nomination on 16th February, although her formal appointment, swearing-in and assumption of office had been delayed pending completion of the President’s consultations with the Judicial Service Commission and Parliament’s Committee on Standing Rules and Orders, as required by the Constitution. [Note: the views of the Judicial Service Commission have been officially conveyed to the President, but, according to a Parliamentary source, the views of the Parliamentary Committee have not, because not all the members have responded to the Speaker’s request to them to do so (Veritas has not been able to contact the Speaker to verify this). This raises the question whether there has been compliance with the constitutional requirement of consultation with the Parliamentary Committee.]

As a result of the last-minute swearing-in of the new chairperson, the Supreme Court judges decided that the case no longer qualified as urgent. Accordingly the hearing could not proceed on an urgent basis and it was adjourned indefinitely.

[As a matter of interest, Jacob Mudenda was sworn in at the same State House ceremony as the new Chairperson of the Zimbabwe Human Rights Commission.]

High Court orders ZEC to Consider ZimRights Application for Observer Accreditation

On March 15th a case taken by civil society organisation Zimrights against ZEC was won. The ZEC Observer Accreditation Committee had refused to entertain an application for accreditation of Referendum observers from ZimRights. ZEC’s position was based on the fact that the organisation, and some of its officials, including its director Okay Machisa, were facing police charges on serious allegations of election-related offences – fraud, forgery and false statements concerning voter registration. ZimRights lodged a High Court application challenging this refusal. By the time the hearing in chambers commenced at 11.30 am on Friday morning, Justice Kudya, in a separate case, had granted a court order to Mr Machisa setting aside a magistrate’s decision to place him on remand on the fraud, forgery and false statement charges.

In these circumstances, it was not surprising that the brief hearing ended with ZEC acknowledging its error and consenting to Justice Mavangira’s granting an order compelling ZEC to consider the ZimRights application properly rather than rejecting it out of hand.

But, as of 10 am today, Referendum day – three hours after polling stations opened – the ZEC secretary told Veritas that ZimRights’s application for accreditation of observers was “still under consideration”.

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