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Press statement on presidential petition
for Democratic Change (MDC-T)
Executive Committee of the MDC met in Harare today, to review among
many other things developments in the courts which have a bearing
on the Presidential Petition.
The Executive noted with
concern that the Electoral Court has reserved judgement on the issue.
It appears unlikely that the material requested will be made available
before the hearing of the Constitutional Court. The MDC is extremely
worried that the delay in making a determination on the availability
of the material will seriously undermine the Presidential challenge,
we therefore express reservations on the credibility of the court
process in the absence of the crucial material.
1. There will be no trial
and therefore no oral evidence will be adduced in this matter. This
severely restricts the scope of the matter and any gains that we
might have expected in terms of exposing the illegalities and irregularities
that marred the credibility and legitimacy of this election.
2. The time lines assigned by the court for specific legal processes
are inadequate and favour the opponents. They have had 7 days to
study and respond to the petition and yet both are answering affidavits
and heads of arguments are expected to be filed in a period of less
than 24 hours.
3. Further and in any event apart from the 1st respondent, President
Mugabe, the other respondents namely ZEC, its Chairperson and Chief
Elections Officer, did not respond by the deadline of Thursday 15
August 2013 as appointed by the court. Upon counsel’s enquiry
we understand that they have said they have up to 8pm on Friday
16 August 2013. If the hearing is due to commence on Saturday 17
August this means we would have virtually no time to file the answering
affidavit to those opposing papers. It means we would have been
expected to file heads of argument without having had sight of the
other key respondents’ response to our petition.
4. The approach and attitude of the High Court toward our applications
for information and material that is necessary for the prosecution
of our petition demonstrates the uneven ground upon which we are
operating and what we have stated before that the judicial arena
is not suitable for the resolution of what is essentially a political
dispute. We filed our application last week on Thursday 8 August
2013 but despite the urgency it was only set down for a hearing
almost a week later on Wednesday 14 August 2013, after the weekend
and 2 days of public holiday. When the matter was finally heard,
after some delays the presiding Judge, Justice Chinembiri Bhunu
reserved judgement indefinitely. The manner in which the case was
handled and the indefinite reservation of judgement is not commensurate
with the urgency of its circumstances. These are the materials and
information we would like to use in support of our petition. We
are seriously handicapped by our inability to access these materials
and information some of which by law we should be given by the electoral
authorities. Two weeks after the Election Day we still don’t
have the electronic copy of the voters’ roll.
5. The concern is that these delays may be contrived to enable the
surreptious manipulation of the voting materials and information.
We do not have access to these materials and information and we
do not know where they are. We might well be given access eventually
but to materials and information that would have already been fixed.
In the process we would have legitimized the illegitimate.
6. The new constitution
guarantees the right to a fair hearing (Section 69). It provides
that “in the determination of civil rights and obligations,
every person has a right to a fair, speedy and public hearing within
a reasonable time before an independent and impartial court, tribunal
or other forum established by law”.
7. Further the conduct of ZEC and its senior officers cited in the
petition is inconsistent with the requirements for administrative
justice as provided for in Section 68 of the new constitution. That
provision provides that “every person has a right to administrative
conduct that is lawful, prompt, efficient, reasonable, proportionate,
impartial and substantively and procedurally fair”. On lawfulness,
ZEC has failed to provide us with material such as an electronic
copy of the voters’ roll 2 weeks after the election. It has
not been prompt or efficient in its handling of our concerns as
illustrated by its approach towards the voters roll or response
to the petition whose deadline they have failed to meet. We have
a legitimate expectation that ZEC would discharge its functions
fairly and efficiently but this clearly has not been the case.
8. In addition, the management of this case had administrative components
which must also be consistent with the right to administrative justice.
The periods accorded to the execution of certain functions and processes
have to be reasonable and fair. We do not think that the manner
in which they have been set is in accordance with the provision
of administrative justice.
9. It is clear that without this crucial material being availed
MDC will be prejudiced in the prosecution of this important case.
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