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Update # 2000/47
MEDIA MONITORING PROJECT ZIMBABWE
MEDIA UPDATE # 2000/47
Monday 4th December to Sunday 10th December 2000

SUMMARY
Main stories in the news this week included:
· An amendment to the Electoral Act that nullifies the effects of any legal challenge to the results of the parliamentary election before the courts have heard them; · Previews and analysis of the problems and likely debate at Zanu PF's Congress; · Renewed fighting in the DRC as yet another peace accord is signed; and · The ongoing fuel crisis.

POLITICS MODIFICATION OF THE ELECTORAL ACT It is becoming more than a coincidence that controversial government measures are being conducted or announced towards the weekend so that only The Standard has the opportunity to provide Zimbabweans with an alternative perspective to two days of government media publicity.

More was the pity therefore that The Standard (10/12) failed to follow up the extraordinary story about government's modification to the Electoral Act broken by Zimpapers' titles the previous day. Like ZBC's initial reports later on Saturday, the ZIANA news agency story carried by The Herald and The Chronicle (9/12) fully exploited the fact that the statutory instrument was written in such a way as to state as fact statements made by government as justification for the modification of the Act. Although the report did say the amendment had been gazetted, it subordinated this news to a confusing and source-less introduction stating that constituency results being challenged in the courts could not be declared invalid "in the interests of democracy, peace, security and the stability even if the corrupt or the illegal practices were committed in the June parliamentary elections."

Only in its second paragraph did the story suggest that this was a result of a government gazette, but linked it to that part of the amendment, which noted that the losing candidates had launched "frivolous and vexatious" legal challenges.

The ZIANA story did not explain how the government was able to make such an amendment. And it simply reported as fact that "it was regrettable that the litigation by the opposition MDC was sponsored by external interests whose intentions were inimical to the political stability of Zimbabwe."

The report failed to attribute this statement to the legal notice and failed to offer any legal or alternative assessment of this unprecedented measure. The Sunday Mail (10/12), quoting only an unnamed government spokesperson, provided a supine official view of the amendment, which merely elaborated on the official text. Sounding like Minister of Information, Jonathan Moyo, who appeared on ZBC bulletins later that day, the spokesman said: "Elections must be decided by voters themselves and not by the courts." This, like all the other pronouncements and claims made in the story, were not subjected to any scrutiny, and, like the ZBC, there was no effort to obtain any legal evaluation of the new law.

ZBC's initial coverage of the amendment did not report it as such. Both Nhau Indaba (9/12) and Radio 2/4's 1pm reported that any re- run of the elections in contested constituencies would not take place and made side reference to the amendment to the electoral law. Only later bulletins (ZBCTV and radio 2/4, 8pm) explained that the government had amended the Electoral Act to allow the June 2000 election results to stand whatever the results of any court challenge. The reports stated that the reason for this was that the election had been held under peaceful conditions enabling voters to express their choice freely. The report was repeated the following morning in all bulletins. Follow-up stories simply quoted Moyo saying the election results were not validated by decree but by legal provision to safeguard voters' rights. And on ZBCTV (10/12 8pm) he said:
"In a democracy people are free to do what they can, but we expect institutions of government, the executive, legislature and the judiciary to be above the fray of petty, frivolous and vexatious actions of people, especially of people whose actions may cause harm to our security, to our stability, to our democracy and merely because they have in their pockets foreign money." The reporter did not examine Moyo's statement in view of the fact that he is not only a government representative, but is also from the political party benefiting from the amendment. Neither was he challenged on the inherently undemocratic nature of the amendment and the fact that he ignored the months of violence and intimidation that preceded the election in his statement about the poll being internationally recognized as a peaceful event. Nor was there any assessment of the constitutionality of the amendment or the impact it is likely to have on future electoral processes, including the Presidential election.

(ii) DRC COVERAGE The first hint that there was trouble in the DRC came on the morning news bulletins of ZBC Radio 1/3 (5/12), which quoted Zimbabwe National Army (ZNA) public relations official, Colonel Diye, mysteriously claiming that Zimbabwean soldiers were not part of a group who had fled into Zambia. The report did not mention that fresh fighting had broken out. It was only in a late item announcement on ZBCTV's 8pm bulletin that the ministry of defence confirmed fresh fighting, adding that the rebels had launched an offensive and allied forces had effected a "tactical withdrawal". The following morning's 7am ZBCTV bulletin (6/12) added that Zimbabwean forces had withdrawn to Zambia.
IN ZBC's reports later in the day that a ceasefire agreement had been signed between defence ministers of the countries involved in the DRC (ZBC TV & Radio, 6/12 Nhau/Indaba, 6pm and 8pm), there was no news of the fighting.
The Daily News (6/12) reported that about 300 Zimbabwean and 1000 Congolese soldiers fled to Zambia following renewed fighting in the south-eastern sector of the DRC. The article quoted a ZNA spokesman saying he was waiting for information from the DRC, but also quoted Zambian Defence Ministry officials who confirmed that ZNA soldiers had crossed into Zambia. Surprisingly, ZIMPAPERS dailies ignored the story, save for a single paragraph in The Herald the next day (7/12) where the paper quoted ZDF Commander, General Vitalis Zvinavashe, confirming the attack.
There was no detail whatsoever on an issue that aroused the nation's interest and must have caused great anxiety to soldiers' families. Instead, ZIMPAPERS' dailies concentrated on the signing of yet another peace accord in Harare by the warring parties which, ironically, took place just as the new bout of fighting broke out. The Standard (10/12) reported that "Zambia has requested Zimbabwean authorities to repatriate local soldiers who crossed into its territory from the Democratic Republic of Congo ."

(iii) THE ZANU PF CONGRESS Despite the unresolved rift in the ruling party's Masvingo leadership, ZBC chose only to present the government faction's views. ZBCTV (6/12) 7am quoted Zanu PF's Edmore Hwarari, a member of the interim committee that has taken over from the ousted Mavhaire executive. The Mavhaire faction was not accessed for comment.
This report was followed up with Didymus Mutasa, Zanu PF's secretary for administration, saying that the main agenda for the congress would be land and that the event would provide the party with an opportunity to rid itself of troublemakers. ZBCTV's 8pm news added that those who were no longer prepared "to go with us should say so and should go" (ZBCTV, 7/12, Nhau/ Indaba & 8pm and 8/12, 7am). All bulletins avoided raising the issue of a successor to Mugabe altogether.

However, while Zimpapers' coverage followed ZBC's line, concentrating on the debate over which of the factions in Masvingo would attend Congress, the private Press focused on the succession issue.

Examples of articles focusing on the succession issue included:
Mugabe under pressure to lay retirement plans at congress (The Daily News, 5/12); Speculation mounts over Mugabe's plans (The Daily News, 8/12); Will ZANU PF come out of congress unscathed? (The Financial Gazette, 7/12); Mutasa blocks Mugabe debate at congress (Zimbabwe Independent, 8/12), and Expectations high at ZANU PF congress (The Standard, 10/12) Mutasa was extensively quoted dismissing the possibility that Congress would address the succession issue. The Zimbabwe Independent reported that Mutasa and other senior party functionaries were manipulating the congress agenda to exclude a debate on a successor to Mugabe. The Standard comment was critical of the Congress, concluding that it would be much ado about nothing unless it is held in an open atmosphere where issues facing the nation can be seriously discussed.
The Daily News (8/12) reported that "Chaos and confusion continue to ravage the ruling ZANU PF party in Masvingo as the factions in the province wrangle over who should be delegated to attend the party's national conference ."
The article quoted representatives from the warring factions as well as Mutasa who urged them to solve their problems. The Zimbabwe Independent also quoted unnamed senior party sources and Mutasa as saying that Dzikamayi Mavhaire faced disciplinary action for defying a decision taken by Vice-President Joseph Msika to sack his executive.
While an earlier story in The Herald (5/12) had suggested that the Zvobgo faction was unlikely to be invited, follow-up stories said the Politburo had still to decide. There were no previews of what was likely to be discussed on the basis of previous party conferences, or any agenda-setting stories declaring what needed to be done.
Only the editorial comment ZANU PF must not be hoodwinked, in The Herald (9/12), declared that land and housing should be the priority issues. The comment also managed to attack the MDC, saying that the "opposition has been obsessed with criticizing the government on almost everything, instituting proceedings to impeach the President, campaigning overseas to have sanctions and other punitive measures taken against the country..."
Most of the debate on divisions within the party focused on the Masvingo region to the exclusion of other troubled provinces, while there was an overwhelming reliance on Mutasa at the expense of other ZANU PF officials.

2. ECONOMY i. THE FUEL CRISIS Despite the reappearance of long fuel queues particularly in Harare, the publicly owned papers continued to paint a positive picture of the fuel situation in the country. The private Press largely ignored this. The Herald story (5/12) reported that the Kuwaiti procurement and supply company, IPG, had released more fuel at Beira following a US$3,7bn payment by Noczim. The story, quoting Noczim spokesman, Emmanuel Tinarwo, did not say how much fuel was expected or when these supplies would reach the pumps.
Tinarwo blamed the shortage on panic buying but was not questioned on his evidence for this. However, a clue to the real reason for the new shortage eventually emerged in The Herald four days later (9/12) in a story trumpeting yet another new fuel deal which stated that:

"Most fuel pumps had run dry after government had decided to restrict the supplies to 55 percent of normal supplies following the collapse of two other facility arrangements worth US$200 million (Z$11billion)."
Readers must however, have been puzzled as to which facilities had collapsed since this had never been reported. This also brought Tinarwo's explanation into doubt.
In the same story The Herald reported that Zimbabwe's fuel problems were set to improve following the extension of a line of credit from ABSA bank in South Africa of US$75m(Z$4,125billion) for the procurement of fuel direct from IPG. However, the paper stated that this was subject to Reserve Bank approval. It also reported that four fuel companies Mobil, Shell BP, Caltex and Total, had been authorized to procure and sell fuel directly.
The fuel issue received scant attention in the private press. The Daily News (6/12) reported that NOCZIM had paid US$3,7 million to IPG for the release of fuel which the company was withholding at Beira. The article quoted a NOCZIM spokesman who was not sure how long the consignment would last. But he was further quoted as saying that if both vessels were released, the country would have diesel to last 55 days, petrol 24 days and jet A1 28 days. The issue was not reported on ZBCTV.
Radio 2/4 quoted a Ziana report in which a Noczim official was reported to have said that fuel queues were back because Kuwait was awaiting payment (6/12 6am). Despite previous assurances that the new deal with the Kuwaiti company would end the fuel blues, it appeared that the public had been misled again. ZBC however, did not call anyone to account for previous assurances. Nor did its reporters ask why the Kuwaitis had not been paid if, as the Metropolitan Bank had said in the past, they had worked out a deal whereby Zimbabwe could pay in local dollars.

3. MEDIA (i) THE ZBC BOARD The announcement of ZBC's new board of governors on ZBC (6/12, 8pm; 7/12 morning bulletins) must have come as a surprise to many Zimbabweans. However, ZBC presented it as a normal event, quietly ignoring the fact that there had been no previous announcement of the old board's resignation. In previous weeks it had been announced that only the chairman of the board, James Chitauro, had resigned so that he could spend more time with his family. Such secrecy in the selection process of the board of a public institution can only be anathema to the principles of transparency and the duties of a public broadcasting corporation.
ZBC, for its part, did not question or highlight the process of selection and did not say what this meant for the ZBC or how it would affect its operations. In fact the reports did not go beyond naming the new board.
Similarly, the ZBC announced that minister Moyo had appointed a15 member Media Advisory Panel (ZBCTV and radio 1/3 8/12 8pm and 9/12 morning bulletins and 9/12 radio 1/3 1pm bulletin).
(ii) LEGAL ACTION AGAINST THE DAILY NEWS The Herald (9/12) was first to report that government had instructed the Attorney-General's office to establish charges of criminal defamation against senior staff at The Daily News over a story it published about an alleged scandal surrounding irregular commissions paid in the award of a tender to build Harare's International Airport terminal. The story quoted Justice Minister Patrick Chinamasa as saying the story had been criminally defamatory of the President, current and former cabinet ministers and high-level government officials. ZBC gave the story wide coverage on all its morning radio bulletins the same day and on Radio 1/3's 1pm news. None of the government media accessed comment from The Daily News itself.
(iii) SELF INDULGENT JOURNALISM AT THE DAILY NEWS In the week under review The Daily News has given undue prominence to a number of stories about itself or its Editor whose public interest is, at best, suspect, and at worst, grossly self- indulgent. The worst of them was the front-page lead status awarded a story about businessman Mutumwa Mawere demanding the presence of the paper's Editor at an NDA meeting (8/12).

MMPZ has heard of "bad news days" in newsrooms around the world, but this must take the prize for its "frivolous" gravity. Two other stories, Daily News refuses to accept advertisement (4/12), and Expose corruption, says Nyarota (5/12) were given space in the paper's pages that bordered on self-importance. In fact, the paper has, periodically, been giving undue prominence to articles of this nature for some time and MMPZ notes that this self-indulgent journalism comes at the expense of a host of other issues of greater national interest.

CURRENT AFFAIRS None of the current affairs reports monitored on Radio 2/4 provided coverage of the topical issues of the week.
Talking Point on ZBC radio 1 featured the issue of the relationship between the government and the judiciary. However, Media Watch (TV 9/12) raised an issue that calls for comment. The programme featured Manica Post editor, John Gambanga, who admitted that his paper was editorially biased in favour of the government.

To the question: "Doesn't your pro-government bias affect news coverage of the news?" he replied: "Government sets the parameters and we have to abide in these parameters. We can only criticize in a limited way." Gambanga's apologist explanation for this bias; that government was the majority shareholder, needs to be corrected. It should be pointed out that government owned media are obliged to represent all shades of opinion and perspective in Zimbabwe. And besides, the money government used to buy its majority stake in Zimpapers was given by the Nigerian government for the people of Zimbabwe - and not to the ruling party.
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Mugabe tells blacks 'strike fear in white hearts'
HARARE - President Robert Mugabe, opening a crucial party congress that could decide his future, on Thursday urged black Zimbabweans to unite against whites and strike fear into their hearts.

"Our party must continue to strike fear in the heart of the white man, our real enemy," he told about 7 000 supporters of his ruling Zanu-PF at Harare Sports Centre.

He vowed to continue commandeering white-owned farms for redistribution to landless blacks and said the courts, which have twice declared the land grab illegal, would not stop him.

"The courts can do whatever they want, but no judicial decision will stand in our way... My own position is that we should not even be defending our position in the courts. This country is our country and this land is our land.

"The white man is not indigenous to Africa. Africa is for Africans. Zimbabwe is for Zimbabweans," he said to wild cheers and applause from party delegates.

Party sources have said Mugabe's leadership ahead of presidential elections in 2002 could be on the agenda for the three-day party congress, but the 76-year-old president made no mention of his own position in the party.

Mugabe's lieutenants are adamant that he will stay, but analysts say the party is doomed if he does.

"I just can't see how they can seriously contest, let alone win, the presidential elections without a change of leadership," University of Zimbabwe political analyst Emmanuel Magade said.

Mugabe accused the country's one-percent white minority of sabotaging the economy in an effort to destroy Zanu-PF, in power since independence from Britain in 1980.

"They are closing their factories and companies in order to worsen our economic condition. They are trying to sabotage the economy in their fight against our government. They will not succeed.

"They think because they are white, they have a divine right to our resources. Not here. Never again."

Mugabe said Zimbabwe's 12-million blacks were not in control of their own economy, which is in deep recession.

"We have an economy which excludes and exiles our people... all the power and control is in the hands of a tiny racial minority and a minority of colonial origins," he said.

"What we have is... a foreign-owned and foreign-controlled economy. Of course we participate as wage-earners, but as modest and circumscribed wage-earners."

Zanu-PF officially called the special congress to discuss the party's flagging fortunes after losing a referendum on a draft constitution in February and only narrowly winning parliamentary polls in June after 20 years in power.

Former labour leader Morgan Tsvanigari's new opposition Movement for Democratic Change (MDC) won an unprecedented 57 of 120 parliamentary seats up for election in June.

But Mugabe vowed this would never happen again, saying blacks who had voted for the MDC in June should be ashamed.

"Tsvangirai is just an empty vessel, a bucket, a miserable figure. The intellectual level of our country will not allow the ignoramuses of our country to rule.

"No self-respecting black man must ever support the MDC because it is just a front for the white man," he said.

Returning to the main theme of his rule this year, Mugabe said the redistribution of largely white-owned farmland would be crucial to economic recovery.

"The real structural adjustment of the economy should start with the resolution of the land problem... the land must change hands in favour of the majority of our people.

"The land is ours by birth, ours by right, also ours by struggle. Africa is for Africans - Zimbabwe is for Zimbabweans," he reiterated.

Mugabe spoke two days after white farmer Henry Elsworth was killed in an ambush near his farm southwest of Harare. He was the seventh white farmer to die violently this year. - Reuters


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Zimbabwe President: Fight Whites
The Associated Press, Thu 14 Dec 2000

HARARE, Zimbabwe (AP) — President Robert Mugabe told followers Thursday to continue fighting Zimbabwe's whites and their ``black puppets'' days after the killing of a seventh white farmer by suspected members of his party.

``Our party must continue to strike fear in the hearts of the white man, our real enemy,'' Mugabe told his ZANU-PF party at the opening of its convention.

The meeting follows the shooting death of 70-year-old Henry Elsworth, a farmer and Mugabe critic, on Tuesday. Elsworth's son was shot five times but survived.

The party convention also comes after an election setback in June, which left the party with a narrow majority of 62 of 120 elected seats. On Thursday, the president urged party loyalists to never again ``go to sleep'' and allow gains by the opposition Movement for Democratic Change party.

``No self-respecting black man must ever support MDC, which is a front for whites,'' Mugabe told about 6,000 party delegates from the country's 10 provinces.

Mugabe also vowed his government will continue to ignore court rulings declaring seizures of white-owned land illegal.

His government has begun settling landless blacks on hundreds of white-owned farms without following land reform laws passed in April.

``Africa is for Africans. Land is ours by birth, ours by right,'' Mugabe said. ``We call on all blacks to stand together to isolate these whites.''

The government has also ignored two High Court orders to remove ruling party supporters and squatters who have illegally occupied 1,700 white-owned farms since February.

Earlier Thursday, Justice Minister Augustine Chikumira confirmed police were investigating threats by Mugabe activists to attack judges at their homes to force them to resign. The government and its supporters accuse the judges of racism and bias in favor of whites.

Six of about 30 judges are white, while most of the hundreds of magistrates are black.

About 70,000 whites live among 12.5 million blacks in the former British colony that Mugabe led to independence in 1980. On Thursday, he said whites still controlled the economy and about 4,000 ``white racist commercial farmers'' still owned a third of the productive land.

``They discriminate in every way against the majority'' he said.

Earlier this month, Mugabe warned white farmers that they would be expelled if they continued fighting the land confiscations in court.

Uncertainty over the land issue has aggravated Zimbabwe's worst economic crisis since independence in 1980. Farm occupations have cut production of tobacco and other export crops, and most foreign loans have been halted. Hard currency shortages have led to acute shortages of gasoline.

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http://www1.sky.com/news/world/story6.htm
 
ZIMBABWE FARM KILLING

Sky News

A white farmer and former member of the Zimbabwean Parliament has reportedly been killed in an ambush

Henry Elsworth died instantly in a hail of gunfire as they drove to the family farm, according to his son, Ian (pictured), who was wounded in the attack.

It is claimed the killing may be linked to the wave of farm invasions which have already claimed at least 31 lives.

Occupation

Mr Elsworth’s farm was one of the hundreds to be occupied by Zimbabwe’s war veterans in support of President Robert Mugabe’s programme of land seizures for black resettlement.

The Commercial Farmers Union had already warned its white members and their black workers faced more bloodshed until Mr Mugabe restored order to the farms.

The killing on Tuesday came ahead of a crucial meeting of the ruling ZANU-PF party where the future of Mr Mugabe’s leadership was expected to be discussed.

Mr Elsworth was a close associate of the country’s former white Rhodesian Prime Minister Ian Smith, and had been a member of parliament for Mr Smith’s Rhodesian Front after its independence in 1980.

More....From IOL

"It's becoming increasingly clear this is not a random act, but a calculated political assassination. It was a military-style operation," said Malcolm Vowles, spokesperson for the CFU.

Vowles said the Elsworth farm was occupied by war veterans and there had been tension on the farm, but it was "not greater than on other farms that were occupied".

War veterans had invaded and occupied Elsworth's farm in February and accused him of being "arrogant and racist", said other sources.

Elsworth had been convicted of crimia injuria by a regional magistrate in 1994 after he allegedly ordered a group of black women and children collecting firewood on his farm to strip naked.

'He has been consistently intimidated in recent months'
He successfully appealed against both the conviction and sentence in the supreme court after the higher court found the evidence of key witnesses in the case to be unreliable.

Police spokesperson Bothwell Mugariri said the police were investigating the killing.

Vowles said he thought the killing took place because of Elsworth's past involvement in politics under the former president Ian Smith's regime. "Because of his past political actions, he has been consistently intimidated in recent months."

Elsworth had been a member of parliament for Smith's Rhodesia Front before and after independence in 1980, said other sources.

Vowles said there had been a pattern of increasing violence on the occupied farms.

"The pressure certainly seems to be stepping up in the intimidation campaign against farmers. There are widespread work stoppages and this has been the main source of conflict with tempers flaring, beatings and generally intense life-threatening situations."

The murder happened on the eve of the Zanu-PF conference which some observers believe will throw light on whether President Robert Mugabe will be nominated as his party's candidate for the presidential elections in 2002. - Foreign Service



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Well the plot thickens...
 
My friend Mabunda has apparently been allocated HELWYN FARM in Karoi for himself.  He is seen often in Karoi, in a Police Land Rover.  Coincidentally, normally about two days later there is trouble in Karoi again.  After the meeting held here in Karoi with all the top guys some time ago, we were told that Mabunda was the problem and that he would be dealt with.  He was supposedly transferred to Harare. What a sham. Imagine being given a farm as reward after you have been such a disgrace!! Imagine if you are good what you could expect!
 
A certain prominent Karoi businessman is storing his furniture for him. Isn't that sweet of him! If you want his name just contact me.  I certainly stopped supporting him the day I heard that. I expect other to do the same.
 
Chris Shepherd was hit across his back by war vets this very morning. Two days after a KweKwe farmer was murdered and his son shot 5 times. The son is recovering in hospital.  Is this nightmare going to end? Is this congress that is ongoing now going to sort this out or will it make the situation more volatile.
 
Patience is running out.
 
This is going to be a very BLACK CHRISTMAS for all if this trend continues. Perhaps Christmas should be cancelled this year in Zimbabwe due to lack of interest and continuous problems. How many people are feeling festive... No fuel, no law and order, no money.
 
Our businesses are suffering to such an extent that we are not certain how much longer we can keep our heads above water.  We all know that we are here to stay so why can these people not compromise and accept the CFU policy.  Is it asking too much to stay within the law at least?!
 
Something has to happen, but who knows...
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MDC Land Policy Forum in Bulawayo

DATE:  Friday 15 December, 2000
TIME: 5:30pm
VENUE: Large City Hall, Bulawayo

This forum will analyse the Zanu PF land reform strategy and reveal the
Fast Track Land Resettlement Programme for what it is: A fast track to
poverty!

The forum will also discuss the MDC's land reform programme, and the
strategy for implementing that programme.

Speakers:
Tendai Biti (MP Harare East) Secretary for Lands and Agriculture
Renson Gasela (MP Gweru Rural) Shadow Minister for Lands and Agriculture

Chairperson:
Trudy Stevenson (MP Harare North)  Secretary for Policy and Research

ALL ARE WELCOME

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11 December, 2000

Movement for Democratic Change (MDC) President Morgan Tsvangirai held two
celebratory rallies in Masvingo this weekend.

The buoyant Tsvangirai addressed a crowd of 1500 at Save Township in the
morning on Sunday 10 December.  Tsvangirai celebrated the strength and
commitment of the people in securing 57 Parliamentary seats for the MDC in
June.  In the afternoon, Tsvangirai addressed 7000 MDC members at Tsvovani
Stadium in Chiredzi. 

Moses Mare, the MDC candidate for Chiredzi North also addressed the crowd,
calling for continued support for the MDC despite the loss of the Chiredzi
North seat.  “We must not look at the seats lost,” he said, “but at the
rapid progress of this party so far.  Hold on to your commitment to the
MDC, and be vigilant in supporting the MDC even as you work on your own
development initiatives.”  Mare reminded the people that the MDC had not
lost Chiredzi North, but been cheated out of it, and said he was confident
that the court challenges would prove successful.

Tsvangirai dismissed President Robert Mugabe’s recent modification of the
Electoral Act, banning court challenges saying: “It is yet another
desperate act of the decaying Zanu PF government.  The very fact that
Mugabe would make such a decree banning electoral challenges proves that
he has something to hide.  Zanu PF has backed itself into a corner of
popular dissatisfaction, and it is now grasping for any shard of hope it
can find.”

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Pakai to contest Bikita West for MDC

The Movement for Democratic Change (MDC) has selected its candidate for
Bikita West in the by-elections due next year.  The seat became vacant
when MDC MP Amos Mutongi passed away last month.

Mutongi was sick with liver cancer for some time before his death, and so
the constituency has had to rally closely together for some time in order
to maintain their solidarity.

After extensive consultations and deliberation, the people of Bikita West
chose Boniface Pakai to contest the seat on the MDC ticket.  Pakai is a
businessman in Nyika, and was selected over six other hopeful MDC members.


He….

Elections are scheduled for January 6-7, 2001.  Given the intensity of the
Marondera West campaign, and the narrow margin of victory for the MDC in
June, the MDC anticipates a difficult task ahead of it.  The MDC has
prepared its strategies, however, and looks forward to a victory to secure
its 57 seats in Parliament.




CANDIDATE PROFILE
BONIFACE PAKAI



The Movement for Democratic Change (MDC) is proud to introduce Boniface
Pakai as its candidate for Bikita West.  The seat fell open last month
when Ambrose Mutongi, the MDC MP for the constituency regrettably passed
away from liver cancer. 

Pakai is a devoted MDC member who was very active in supporting the late
Mutongi during the June elections.  A qualified school teacher, he taught
at Chiremwaremwa Primary School from 1988 until 1996.  A dynamic and
self-motivated entrepreneur, he now manages his own transport company.

He is married to Patience Taazadza.  They have two girls, aged 2 and 5
years.  A dynamic and self motivated.

A dedicated MDC member, Pakai was involved in an unfortunate incident of
pre-election violence in Nykai.  Pakai and the others involved have since
settled the matter themselves, and the case has been cleared by the courts.

The MDC is confident with its choice in Pakai, and is convinced that he
has the dedication and skill necessary to advance the interests of the
people of Bikita West.

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The MDC yesterday (13 December) filed an urgent application with the
Supreme Court, Challenging Statutory Instrument 318/2000.  SI 318/00
ammends the electoral act to effectively render any legal challenge of the
June 2000 Parliamentary Elections useless.  The text of the court
application follows.


IN THE SUPREME COURT OF ZIMBABWE CASE NO.
HELD AT HARARE


In the matter between:-

THE MOVEMENT FOR DEMOCRATIC CHANGE First Applicant


And

SHEPHERD MUSHONGA        Second Applicant


And

PATRICK CHINAMASA N.O First Respondent

And

ROBERT GABRIEL MUGABE N.O. Second Respondent


FOUNDING AFFIDAVIT


THE PLAYERS

1.1.1 I, MORGAN TSVANGIRAI, do hereby make oath and state that I am the
President of the First Applicant and as such, duly authorised to make this
affidavit on its behlaf.  The facts I depose to herewith are fully within
my knowledge and to the best of my belief true and correct.

1.1.2 The First Applicant is a duly recognised political party, being a
universitas at law whose address for the purpose of this action is care of
its undersigned legal practitioners.

1.1.3 The Second Applicant is a duly registered legal practitioner of this
Honourable Court.  His interest in this causa will become evident from the
section of this Affidavit headed “Background”.  Similarly his address of
service is care of the undersigned legal practitioners.

1.1.4 The First Respondent is a Government Minister duly appointed by the
Second Respondent in terms of the Constitution of Zimbabwe.  He is cited
as such as the Minister to whom the administration of the Electoral Act
Chapter 2:01 (the Act) is assigned to.  His address of seRvice is Corner
House, Corner Leopold Takawira and Samora Machel Avenue.

1.1.5 The Second Respondent is the President of the Republic of Zimbabwe.
He is cited as such in his official capacity following the exercise of his
powers in terms of Section 158 of the Act.  His address of service is
Munhumutapa Building, Samora Machel Avenue, Harare.

THE ISSUE

2.1.1 On the 8th December, 2000, the Government of Zimbabwe published the
Electoral Act (Modification) (No.3_ Notice 2000) as Statutory Instrument
318 of 2000 (hereinafter referred to as SI 318/00).

2.1.2 SI 318 of 2000 infringes the right of the Applicant as secured in
the Bill of Rights of the Constitution.  This is therefore an application
in terms of section 24 of the Constitution direct to this Honourable Court
in which it is sought to declare the notice SI 318/000 unconstitutional on
the basis that it and its effect thereof are ultra vires the provisions of
section 18 (1) and 18 (9) of the Constitution of Zimbabwe.

BACKGROUND

3.1.1 On the 24th and 25th June 2000, a general election was conducted in
Zimbabwe, pursuant to the dissolution of Parliament on the 8th April 2000
in terms of Section 63 of the Constitution.  The general election held in
terms of Section 58 of the Constitution was in respect of the one hundred
and twenty common roll constituencies as prescribed by Section 60 (2) of
the Constitution.

3.1.2 In this election the First Applicant fielded a total of one hundred
and twenty candidates of which fifty seven thereof were successful.  The
election result was as follows:

MDC 57
ZANU (NDONGA) 1
ZANU  (PF) 62
TOTAL 120

3.1.3 The election, was marred by violence, intimidation and a whole
paraphernalia and myriad of corrupt and  illegal practices, as defined in
the Act.  The election was not free nor fair and certainly in general
terms it was not conducted in accordance with principles laid out in the
Act.  The violence was widely spread and widely reported.  In addition
almost all election observers qualified the election and few could declare
it as having been free and fair.  I attach hereto marked as Annexure “B”
and “C”, The Report of the Commonwealth Observer Group dated 30th June
2000 and the Report of the European Union Observation Mission  dated 4th
July 2000, respectively.  These reports by credible observers repay study.

3.1.4 Following these factors, the First Applicant challenged the results
in at least forty of the constituencies.  These challenges were brought in
the names of the individual contesting candidates in compliance with Part
XXIII of the Act.  The Second Applicant was one of such of First
Applicant, who contested and lost the Mazowe East Constituency Seat.

3.1.5 The above applications have been set down on the continuous roll of
the High Court before three Honourable Judges namely Justices Ziyambi,
Garwe and Devittie.  The cause list has been prepared and I attach hereto
marked Annexure “C”,  a copy of the same.

3.1.6 The First Applicant and its candidate members thereof have gone to
great lengths and expense in:-

(i) instructing attorneys, gathering revenues, and preparation of founding
affidavits;
(ii) preparing for the trials set down to commence on the 8th of January
2001.

3.1.7 The extent of the preparations are evident in the quality of the
Election Petitions filed thereof.  Equally evident are the gross and
sometimes gory litanies of violence, murders and abductions that are
detailed in many of these applications, which by implication I incorporate
hereto as if specifically traversed.

3.1.8 It thus came as a shock when we read the publication of SI 318/00 in
last Saturday’s papers.  Indeed the timing of the publication of the
notice is unnecessarily oppressive and designed to frustrate the soon to
be heard petitions.  Indeed it is unfair, malicious and vindictive for the
Respondents to allow such effort time and resources to be expended in the
whole exercise only for them to pull the mat under our feet literally.  It
is on the basis of this inter alia that a punitive order for costs is
prayed for.





THE ILLEGALITY EXPANDED
The Constitutional Basis

3.1.9 Zimbabwe is a Constitutional democracy where the rule of law is
secured by the Constitution and by the common law.  SI 318/00 has the
following effect:-

a) it denies the First Applicant and its members thereof the rights
protection of law and due process of law as guaranteed by Section 18 (1)
of the Constitution of Zimbabwe;
b) it denies us the benefit of right to due process or right to be heard
in the determination of our civil rights as protected by Section 18 (9) of
the Constitution.

3.1.10 Indeed it amounts to a serious curtailment of one’s human rights,
that is the right to have recourse to the Courts of law which right is
being taken away by the Respondents as has been done in casu.  The
consequences of the precedent sought to be set are shuddering for all
nascent democracies.

3.1.11 More fully the notice infringes our rights under sections 18 (1)
and (9) in that:

(a) It takes away from us the protection and remedy that is allowed us in
terms of the Act where electoral irregularities are.
(b) It amounts to a predetermination of the issues raised in our petitions.
(c) To the extent that SI 318/00 is clearly ultra vires section 158 of the
Act it denies us due process and protection afforded by the said Section
158.  I deal with this issue in greater detail in paragraph 5.1.1.
(d) It denies us the protection afforded by Administrative Law.  The
common law principles of natural justice are part of our law and again I
deal with this in greater detail in paragraph 4.1.1.

4.1.1 The common law principles of Natural Justice pre-suppose and
guarantee among other things fairness, the right to be heard,
reasonableness in the administrative decision taken, and absence of bias
on the part of an administration.

4.1.2 Clearly in casu the administrative action in SI 318/00 is grossly
unreasonable.  One cannot pass a law that has the effect of taking away
the vested rights guaranteed by the Act itself (see also the
Interpretation Act) and the common law.  Any delegated legislation such as
SI 318/00 that seeks to take away such right must surely be declared null
and void on the basis of gross unreasonableness.  SI 318/00 denies the
protection of law as set out in section 124 of the Act and guaranteed by
section 18(1) of the Constitution.

4.1.3 Needless the fact of the same taking away the right to recourse to
the Courts is an assault on the audi alteram partem rule.

4.1.4 SI 318/00 does not prevent the various cases from going ahead but
predetermines their results in breach of the right to have one’s civil
rights fairly determined by an impartial court.  Undoubtedly the effect of
SI 318/00 indeed renders the petitions useless save for a determination of
the legal costs involved in each petition.  The hearing will accordingly
be entirely academic, save for the question of cost, and thus is in danger
of not being taken seriously by the presiding judges and parties.  This is
in breach of the right to have a fair hearing, guaranteed by section 18
(9) of the Constitution.

5.1.1 Section 158 of the Act is a merely regulatory section that permits
Second Respondent to make procedural subsidiary law for the proper and
efficient conduct of elections, on adjectival matters and not substantive
matters.  If it  does not allow the Second Respondent to condone the
improper conduct of the election and to deny the protection of law
afforded to losing candidates by section 124 of the Act.  SI 318/00 is
also more than substantive.  In it the President seeks to make a law which
even Parliament itself cannot make.  SI 318/00 amounts to a blatant abuse
of the regulatory discretion provided to Second Respondent in Section 158.

THE PREAMBLE TO SI 318/00

6.1.1 It is necessary to comment on the preamble to the regulations
because it gives much insight to the intention of the Executive and the
factual basis or otherwise, for the regulations.

6.1.2 The assertion in the preamble that the elections were peaceful (and
correspondingly that the petitions are frivolous) has not only been
contradicted by impartial independent observers but, more importantly, is
one of the very issues that the High Court has been asked to determine.
The Second Respondent is not entitled to make such a finding of fact as
that pre-empts the function of the High Court.

6.1.3 The preamble represents unsubstantiated political ipse dixit.  To
allege for instance that it is in the interest of democracy, peace,
security and stability of Zimbabwe, that the Courts should not entertain
the petitions, is as hypocritical as it is dishonest.  The First Applicant
narrowly lost the election, and due to factors reproduced in those
petitions.  To deny Zimbabweans their right to have their own rights
determined by the Courts is the very antithesis of democracy.  Likewise,
peace, security and stability will not be secured by a denial of rights.

6.1.4 The reference to the litigation being sponsored by foreigners,
smacks of the narrow parochial, selective and vindictive nationalism of
ZANU (PF).  If anything there is no party in Zimbabwe that has benefited
more from foreign capital and assistance than ZANU (PF) itself.  What is
even stranger is that Government makes this assertion in the preamble when
it is denying First Applicant amounts lawfully due to it in terms of the
Political Parties (Finance) Act [Chapter 2:04].

6.1.5 More dangerous is the assertion by Respondent that the petitions are
“frivolous and vexatious.”  Surely, how can the Respondent abrogate and
appropriate the powers of the Judiciary?  Such contempt of the doctrine of
the separation of powers in this country is a reflection of the complete
indifference to the rule of law that has come to typify the present
Government.  Moreover in those some constituencies that have been
re-counted, irregularities were established in that, in fact the total
vote for the ZANU (PF) candidates had actually increased.  How do votes
locked up in boxes multiply and reproduce?

6.1.6 The MDC is a constitutional political party and a loyal opposition
in the House.  Any reference in the preamble to “external interests”: and
dubious motives is cheap politicking.  The MDC is endeavouring to bring
peaceful and constitutional change of Government and will not be waylaid
by the political gyrations of a fading regime. 

6.1.7 With regards to the burden of the suits on the Registrar General and
others, three issues arise.  In the first place, the true Respondents in
the Court cases are the winning candidates as provided for in the Act, and
the defence of these cases places no financial burden on the State as the
defendants have to pay for their own legal fees.  Secondly, the Government
cannot use its poverty to subvert the rule of law.  Thirdly, the High
Court is clearly not overburdened by the petitions as evidenced by the
fact that all the cases have already been set down by the High Court.

6.1.8 Indeed the SI 318/00 is a dangerous political tool, in which the
President of a country is abusing his position to protect the waning
fortunes of his troubled political party.  Nothing can be more unlawful.

6.1.9 Moreover coming as it does a few months after the Clemency Order of
2000, SI 318/00, like the Clemency Order, has the total effect of
absolving all responsibility of ZANU (PF) members and Parliamentarians of
all the legal sins and misdemeanors they committed before and during the
elections.  The rule of law is being completely subverted, as there is now
a law for others and one for ZANU (PF)

6.1.10 The consequences for Zimbabwe are drastic.  It appears that in
preparation for the 2002 Presidential Election the President is creating
for himself a new set of rules and laws that will ensure that at all
material times members of his party and himself are clearly above the law.
This can only be as tragic as it is sad.  This violation of the
Constitution sets a very dangerous precedent for the future, its effect
will be to grant an open license to all prospective candidates that they
can engage in any illegal behaviour on behalf of whoever is the ruling
party with impunity.

THE URGENCY

7.1.1 The clear force of SI 318/00 is to render pointless the Court trials
set to begin early in the new year.  It is imperative that an Order be
issued prior to the commencement of the trials so that they are taken
seriously by all the participants and are not viewed as a mere academic
exercise.  The first of the trials are due to commence on the 8th January
2001, and a vast amount of preparation has gone into the petitions during
the last six months.  Indeed, the Electoral Regulations themselves
recognize that electoral petitions are to be treated urgently.  The reason
is self-evident: fair and lawful elections are the bedrock of any
democracy and the outcome thereof must be known as quickly as possible so
that the Government, which enjoys the lawful will of the electorate, can
govern.

CONCLUSION

8.1.1 In the circumstances I believe that good cause has been shown and I
pray for an Order in terms of the draft.


SWORN to at HARARE this ………Day of DECEMBER 2000.


……………………………………………………
MORGAN TSVANGIRAI


BEFORE ME,

……………………………………………………..
COMMISSIONER OF OATHS
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MDC LEGAL AFFAIRS STATEMENT
Electoral Act (Modification) (No. 3)
>From David Coltart, Secretar for Legal Affairs.   10th December 2000

The Government controlled media has this weekend reported on new
regulations purportedly made by President Mugabe in terms of the Electoral
Act which seek to prevent the High Court from nullifying certain election
results of the June 2000 general election. It is pertinent to note at the
outset that these regulations have been made some three weeks before the
High Court is due to commence the hearings of the 38 election petitions
brought by the MDC against winning ZANU(PF) candidates in terms of section
124 of the Electoral Act. It is also important to stress that the
Electoral Act is ZANU(PF)'s own law, having been enacted in 1990, and the
cases are set down before three judges all of whom were appointed by
President Mugabe.
 
As usual Professor Jonathan Moyo has sought to create a smokescreen by
issuing statements that the cases are frivolous, that the elections were
free and fair and that we can't have the courts deciding on the outcome of
elections. These statements are, not surprisingly, completely devoid of
truth. ZANU(PF) is painfully aware of the detailed evidence, including
video recordings and the testimony of hundreds of witnesses, which has
been gathered by the MDC legal teams since June and which it intends
presenting to the courts. The cases are not frivolous; they are matters of
grave importance to Zimbabwe and prepared by Zimbabwe's finest lawyers.
Likewise the entire honest and thinking world knows that the June
elections were anything but free and fair: impartial observation teams
such as those sent by the European Union and the Commonwealth found that
there were serious irregularities and mainly blamed ZANU(PF) as being
responsible for the violence and electoral fraud. Finally the courts do
not decide the outcome of elections in Zimbabwe: in terms of section 124
of the Electoral Act they can void an election, but then a fresh election
must be held so that the people can decide who they want to represent them.
 
The truth of the matter is that this is yet another desperate act by
President Mugabe and ZANU(PF) to hang on to power at any cost. These
regulations were published in the full knowledge that the horrifying
enormity of ZANU(PF)'s crass electoral campaign was shortly to be exposed
in the courts, that several of its MPs would probably be disqualified from
standing for election again and that it would have to fight several more
by-elections in the new year. The irony is that by purporting to terminate
these proceedings in this way ZANU(PF) has admitted that its candidates
did act in violation of the Electoral Act. Had they not acted illegally
then ZANU(PF) would have nothing to fear in defending the petitions in
court. Indeed if these cases are so frivolous then why not show up the MDC
in court? This tacit admission that 38 of its MPs were elected illegally
brings the entire legitimacy of the ZANU(PF) government into question for
without the 38 extra seats ZANU(PF) would not enjoy a majority in
Parliament.
 
Another deception created by Professor Moyo this weekend is that the
President has acted lawfully in enacting these regulations. Whilst the
President does have the power in terms of section 158 of the Electoral Act
to make orders amending provisions of the Act any such orders must be to
"ensure that any election is properly and efficiently conducted". In other
words his power is not unlimited and certainly cannot be used to subvert
the entire electoral process. Furthermore section 18(9) of the
Constitution of Zimbabwe enshrines the right of every person to be
"afforded a fair hearing within a reasonable time by an independent and
impartial court established by law in the determination of the existence
or extent of his civil rights". President Mugabe simply does not have the
power to prevent the exercise of this right, no matter what spin Professor
Moyo might want to put on the situation.
 
The MDC will shortly be launching appropriate legal proceedings to ensure
that the 38 court challenges are heard and that the provisions of the
Electoral Act and the Constitution are complied with. Obviously this will
be expensive, time consuming and tiresome but it will be done: we are
absolutely determined to see that justice is done no matter what obstacles
are thrown in our path. In closing the following words of Martin Luther
King are apposite:.

          " Human progress is neither automatic nor inevitable. Even a
superficial look at history reveals that no
            social advance rolls in on the wheels of inevitability. Every
step toward the goal of justice requires
            sacrifice, suffering, and struggle: the tireless exertions and
passionate concern of dedicated individuals.
            Without persistent effort, time itself becomes an ally of the
insurgent and primitive forces of irrational
            emotionalism and social destruction. This is no time for
apathy or complacency. This is a time for vigorous
            and positive action."
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