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Court declares Mr Mugabe elected President - Bill Watch 40/2013
August 20, 2013
Court dismisses Tsvangirai Election petition
Mugabe duly elected
At 2.30 pm this
afternoon, 20th August, Chief Justice Godfrey Chidyausiku handed
down the unanimous decision of the Constitutional Court dismissing
Mr Tsvangirai’s election
The short document
setting out the court’s decision starts with a brief statement
of the court’s conclusion that an election petition challenging
a Presidential election “is unique, in that it cannot be terminated
by a withdrawal.
In terms of section 93 of the Constitution
of Zimbabwe, once such an application or petition is launched it
can only be finalised by a determination of the Constitutional Court
by either declaring the election valid, in which case the President
is inaugurated within 48 hours of such determination, or alternatively
by declaring the election invalid, in which case a fresh election
must be held”. It followed that Mr Tsvangirai’s purported
withdrawal of his petition before the court determined the matter
was “of no legal force or effect, save to indicate to this
Court that the applicant had abandoned or does not persist with
his allegations”. In addition to dismissing the petition the
court made the following determination and declaration in terms
of section 93(3) and (4) of the new Constitution:
the Zimbabwe Presidential election held on 31 July 2013 was in accordance
with the laws of Zimbabwe and in particular with the Constitution
of Zimbabwe and the Electoral
Act [Chapter 2:13];
2. THAT the
said election was free, fair and credible. Consequently, the result
of that election is a true reflection of the free will of the people
of Zimbabwe who voted; and
3. THAT Robert
Gabriel Mugabe was duly elected President of the Republic of Zimbabwe
and is hereby declared the winner of the said election.”
was dismissed with costs on the ordinary scale. The court said full
reasons for judgment will be released in “due course”.
[Full text of
the decision available on Veritas website www.veritaszim.net
or, for those without Internet, from firstname.lastname@example.org]
now clear for inauguration on Thursday 22nd August
Mr Mugabe must
be sworn in within 48 hours of the Constitutional Court’s
declaration that he was duly elected President – that is,
by no later than 2.30 pm on Thursday 22nd August [Constitution,
On his return
from the SADC Summit
on Sunday afternoon, Mr Mugabe anticipated the court’s decision
by announcing, that his inauguration would be on Thursday.
of Constitutional Court hearing on 19th August
Court’s decision finally puts an end to Mr Tsvangirai’s
election petition, as was probably inevitable following Mr Tsvangirai’s
attempted withdrawal of the petition last Friday 16th August and
the brief hearing of the matter before the full nine-judge bench
of the Constitutional Court on Monday 19th August. That hearing,
which is summarised below, took place in accordance with the direction
of the Chief Justice issued on Friday after the lodging of Mr Tsvangirai’s
notice of withdrawal. [See Bill
Watch 39/2013 of 18th August for details of the lodging of Mr
Tsvangirai’s election petition on 9th August, events leading
up to the filing of a notice of withdrawal by Mr Tsvangirai’s
lawyers late on Friday 16th August, and the Chief Justice’s
subsequent direction that all the legal practitioners in the case
should appear before the Constitutional Court on Monday 19th August
at 10 am.]
for a hearing and a determination
This point was
raised by the Chief Justice at the commencement of Monday’s
hearing. He questioned the legal effect of Friday’s notice
of withdrawal by Mr Tsvangirai in the light of section 93 of the
new Constitution, which provides that the Constitutional Court must
“hear and determine a petition lodged”.
appearing for Mr Tsvangirai, informed the court that his instructions
were restricted to confirmation of his client’s withdrawal
of the petition and making submissions on costs.
for President Mugabe and Mr Kanengoni for the Zimbabwe Electoral
Commission [ZEC] and its chairperson both submitted that a hearing
and determination by the court were essential. Once a petition is
lodged, they submitted, a hearing and determination are necessitated
by the Constitution.
for the Attorney-General, who applied to participate in the case
as a “friend of the court” in terms of section 167(5)(c)
of the Constitution, agreed.
The court then
approved the participation of the Attorney-General and ruled that
a hearing and determination were necessary.
“nominal” hearing ensued
said that he had only been instructed on the withdrawal of the petition
and had no instructions on which he could make submissions on the
merits of the petition.
The court took
note that Advocate Mehta had nothing to say on the merits of the
The court proceeded
to hear submissions from the lawyers for both sides on costs.
in accordance with his client’s instructions, confirmed Mr
Tsvangirai’s tender of costs.
Mr Hussein submitted
that the petition contained generalisations but no evidence and
that it purported to rely on evidence to be filed or led at a later
date. This meant that there was no evidence before the court supporting
the petition. He asked the court to order Mr Tsvangirai to pay President
Mugabe’s legal costs on the higher scale. Justice Malaba questioned
whether such an order would be appropriate, given that Mr Tsvangirai,
by withdrawing, had avoided wasting the court’s time any further.
said his clients abided by the opposing papers they had filed, and
asked for their costs on the ordinary scale.
for the Attorney-General, did not ask for costs.
imputations against the Constitutional Court
The Chief Justice
then raised with Mr Mehta the question whether Mr Tsvangirai’s
lawyers were in agreement with statements in the petition that impinged
on the integrity of the court. In response Mr Mehta dissociated
himself and his colleagues from the averments in question, saying
they were the petitioner’s personal views.
to 20th August for judgment
The court then
adjourned. The Chief Justice said its decision on the petition would
be handed down at 2.30 pm on Tuesday 20th August. [See court’s
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