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Tsvangirai election petition withdrawn: Constitutional Court sitting Monday 19th August - Bill Watch 39/2013
Veritas
August 19, 2013

Tsvangirai Election Petition withdrawn

At 5.25 pm on Friday 16th August, Mr Tsvangirai’s lawyers lodged a notice of withdrawal at the Constitutional Court withdrawing his election petition challenging Mr Mugabe’s election as President. The notice of withdrawal was supported by a sworn affidavit in which Mr Tsvangirai explained his “grave decision” to withdraw.

The court had been due to start hearing the election petition at 10 am on Saturday 17th August. Following the lodging of the notice of withdrawal, the Chief Registrar of the court announced that by direction of the Chief Justice the court will instead sit on Monday 19th August at 10 am. The Chief Justice’s direction was as follows:

“(i) The sitting of the Constitutional Court which was scheduled for Saturday 17th of August 2013 at 10 am be and is hereby cancelled.

(ii) Legal practitioners of all the parties are directed to appear before the Constitutional Court on Monday 19th of August 2013 at 10 am.”

Note: The direction does not require the attendance of the parties in person, only their legal practitioners.

The court will sit at Mashonganyika Building [the seat of the Administrative Court] at the corner of Samora Machel Avenue and Third Street. [The Chief Justice’s direction, is available on the Veritas website veritaszim.net or, for those without Internet access, from veritas@mango.zw]

Reasons given for withdrawal

In an affidavit filed with his notice of withdrawal, Mr Tsvangirai explained his reasons for deciding to withdraw. They include:

• The non-delivery of Justice Bhunu’s decision on his application for access to ZEC materials had made it “impracticable for me to proceed” with the petition. [Note Justice Bhunu is one of the High Court judges assigned to the Electoral Court to which the application had been made. For details see below in Summary of Events Leading to Mr Tsvangirai’s Withdrawal]
• The timelines imposed by the Chief Justice’s direction of 14th August meant Mr Tsvangirai was obliged to file all his papers without knowing the position of the respondents – particularly of ZEC, which had still not provided an electronic copy of the voters’ roll and had “deliberately taken a position which is inconsistent with a just determination of this matter and which position obviously prejudices me”. ZEC’s uncooperative stance “effectively aids the first respondent [President Mugabe] and “makes it completely futile to pursue this petition”. [Note: This should have been supplied well before polling day. Section 155(2)(c) of the new Constitution obliges ZEC to “ensure that all political parties and candidates contesting an election have reasonable access to all material and information necessary for them to participate effectively”. Section 21 of the Electoral Act obliges ZEC to provide “within a reasonable time after nomination day... free of charge to every nominated candidate one copy in electronic form of the constituency voters roll to be used in the election for which the candidate has been nominated”, which obviously entitles a presidential candidate to the electronic voters roll for all constituencies.]
• President Mugabe at the Heroes’ Day celebrations on 12th August had made “certain unsavoury comments in which he criticised my decision to approach this court. The fact that the Chief Justice was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my constitutional right to a fair hearing. In this regard I make no imputation, gratuitous or otherwise, about the integrity of the Honourable Chief Justice. My concern is with the conduct of the first respondent [President Mugabe].”
• Adverse pre-trial publicity in the State media, particularly The Herald newspaper, had been prejudicial and inconsistent with the fair trial guarantee in the Constitution. Nothing had been done to stop it, which “gravely undermines the process the process which I had been prepared to submit to.”

Is a Constitutional Court hearing still necessary?

• The Chief Justice’s direction suggests that he considers a court sitting necessary to finalise the matter.
• Section 94(1)(b) of the new Constitution states that, once challenged by an election petition, a President-elect can only be sworn in after the Constitutional Court has declared him to be the winner of the election. “In the event of a challenge to the validity of [his] election” the oath must be taken “within forty-eight hours after the Constitutional Court has declared [him] to be winner”.
• Although election petitions generally can be withdrawn under section 178 of the Electoral Act, section 111(4) of the Act expressly states that section 178 does not apply to a petition challenging a Presidential election.
• It remains to be seen what position the Constitutional Court will adopt at the hearing on 19th August.
• If the court rules that the withdrawal was legally effective, it will presumably proceed to declare President Mugabe duly elected as President.
• If the court requires the withdrawal to be repeated in open court, that will presumably lead to the same result – the declaration of Mr Mugabe as duly elected President.

If the court rules that the petition cannot be withdrawn and the hearing must go ahead, Mr Tsvangirai’s lawyer probably has two options:

• If Mr Tsvangirai and his advisers see any chance of being able to use the material in time [i.e. still allowing the court to decide the matter no later than Friday 23rd August], to request the Constitutional Court to order ZEC to immediately provide Mr Tsvangirai with the material he has requested from ZEC, so far unsuccessfully. [Note: Section 93(4) of the Constitution allows the Constitutional Court, not only to declare a winner or invalidate the election, but also to “make any other order it considers just and appropriate”, which must surely allow the court to compel ZEC to supply material, overriding whatever the Electoral Act says on the basis that the Constitution is the supreme law.]; or
• If it is too late for the ZEC material to be of use, to close his case after informing the court that his client believes it is impossible for him to proceed for the reasons set out in his affidavit and that he therefore offers no evidence. That, too, would result in Mr Mugabe being declared duly elected President.

Summary of events leading to Mr Tsvangirai’s withdrawal

Wednesday 31st July: Polling day

Saturday 3rd August: Presidential election result announced
On Saturday 3rd August at about 6 pm Zimbabwe Electoral Commission [ZEC] chairperson Justice Rita Makarau announced the election result and declared President Mugabe duly elected. This meant Mr Tsvangirai had the next seven days in which to lodge an election petition with the Constitutional Court to overturn the election result [Constitution, section 93]. Mr Tsvangirai had already publicly denounced the harmonised elections as “a huge farce” and “null and void”.

Thursday 8th August: Application to Electoral Court to allow access to election materials
On 8th August Mr Tsvangirai lodged two applications with the Electoral Court, seeking access to voting materials in the custody of ZEC for the purposes of his proposed election petition challenging the validity of the Presidential election [see further below under Wednesday 14th Electoral Court hearing].

Friday 9th August: Election petition lodged
On Friday afternoon, 9th August, within the Constitution’s seven-day deadline, Mr Tsvangirai’s legal representatives lodged his election petition challenging the Presidential election result at the Constitutional Court. The petition asked for the Presidential election to be set aside as invalid, an order that would entail the calling of a fresh election. [Petition, including Mr Tsvangirai's affidavit, and outlining his complaints, available on the Veritas website veritaszim.net or, for those without Internet access, from veritas@mango.zw]

Deadline for court’s decision
The effect of the lodging of the petition was that the Constitutional Court became obliged to hear and decide the case by not later than Friday 23rd August. [Section 93(3) of the new Constitution provides that the Constitutional Court must hear and determine such a petition “within fourteen days after the petition was lodged”.]

Respondents
The petition cited President Mugabe, the Zimbabwe Electoral Commission [ZEC], ZEC chairperson Justice Makarau and the ZEC Chief Elections Officer as respondents.

10th to 13th August: Weekend and Heroes Day and Defence Forces Day public holidays

Wednesday 14th August: Case management meeting at Supreme Court
At 1 pm on Wednesday 14th August, the Chief Justice held a case management meeting in his chambers at the Supreme Court with the lawyers representing all the parties. The purpose of the meeting was to settle the procedure for hearing the election petition. At the meeting, a lawyer representing the Attorney-General asked to be added to the list of respondents, and the respondents’ lawyers raised the following preliminary points

• the case should be decided on the papers, i.e., without the leading of oral evidence as proposed by Mr Tsvangirai.
• the Constitutional Court should not hear a petitioner with “dirty hands”, given that the MDC-T dossier attached to Mr Tsvangirai’s affidavit, in an assessment of Zimbabwe’s compliance with the SADC Election Guidelines, stated that the Zimbabwe judiciary is not independent of the executive or of Zanu-PF.
• Mr Tsvangirai’s affidavit was not properly before the court, because its certification by a commissioner of oaths was not in the correct form. Examination of the affidavit shows that it was sworn before a commissioner of oaths, but that the rubber stamp applied, although clearly identifying the commissioner as both legal practitioner and commissioner of oaths, was his/her “certified true copy” stamp. [Comment: This petty objection does not justify the rejection of the affidavit.]

At the conclusion of the meeting the Chief Justice directed that

• all parties must file their papers, including heads of argument, by 8 pm on Friday 16th August
• the hearing of the case would commence at 10 am on Saturday 17th August.

[Note: The MDC-T’s lawyers understood it had been agreed that the respondents’ opposing papers would be filed by Thursday evening, but this did not happen, with the respondents claiming they had until Friday evening.].

Wednesday 14th August: Electoral Court hearing of application for ZEC material in Electoral Court
On Wednesday afternoon Justice Bhunu, sitting in chambers, heard argument on Mr Tsvangirai’s application for access to material in ZEC’s custody for use in his election petition. ZEC’s lawyer objected that under the new Constitution only the Constitutional Court can deal with matters connected with a petition challenging the President’s election. The response was that under the Electoral Act only the Electoral Court can permit access to the sealed ballot boxes and packages in which Mr Tsvangirai was interested. Justice Bhunu reserved his decision indefinitely – and it had still not been handed down by Friday afternoon when the notice of withdrawal was filed.

Friday 16th August: MDC-T National Executive Committee meeting
The MDC-T National ‘Executive Council met on Friday. Amongst other matters, it reviewed developments in the courts having a bearing on Mr Tsvangirai’s election petition. A press statement issued after the meeting cited the Electoral Court’s delay in setting down, and its failure to rule on, Mr Tsvangirai's application for access to ZEC material; it said this had seriously undermined his election petition, and complained that the handling of the Electoral Court case and the petition itself was not in accordance with constitutional guarantees of a fair hearing and administrative justice. Mr Tsvangirai’s notice of withdrawal was filed shortly after the press statement was released.

SADC Summit meeting in Malawi 17th & 18th August
President Mugabe returned triumphant from the SADC Summit in Malawi. His fellow SADC leaders had not only expressed satisfaction with the conduct of the recent elections and called on the West to lift sanctions on Zimbabwe, they had also elected him SADC deputy chairperson for 2013-2014 – which means the next annual SADC Summit will be hosted by Zimbabwe and that President will chair SADC for 2014-2015. The Summit communiqué was not available at the time of writing. On his return while still at airport he announced he would be sworn in as President on Thursday 22nd August.

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