Court Watch 13/2014 of 5th August

via Court Watch 13/2014 of 5th August | The Zimbabwean 6 August 2014

Record of Cases in the Constitutional Court

2: Cases 11 to 15: 18th July to 20th August 2013

In this bulletin we continue our summaries of cases that have come before the Constitutional Court since its inception on 22nd May 2013. Part 1 was distributed as Court Watch 12/2014, which ended with case number 10, heard and decided on 4th July 2013. This bulletin, Part 2, starts with case 11 heard later in July, when the court was still grappling with cases about the 31st July elections, and ends with case 15, heard on 19th and 20th August: Mr Tsvangirai’s election petition challenging Mr Mugabe’s election as President, which was the last of the election-related cases.

The cases are listed chronologically by date of hearing. The Constitutional Court’s case number is in brackets immediately after the names of the parties. References are provided to discussion in other Veritas bulletins.

Case Summaries

11. 18th July 2013: Ignatius Masamba v Minister of Justice and ZEC. [CCZ 42/13] ZEC’S alleged failure to publicise the nomination process. [Ref: Court Watch 13/2013] The applicant, a would-be candidate for election as President, complained that the Minister and the Zimbabwe Electoral Commission [ZEC] had failed to provide prospective candidates with information on nomination fees and failed to provide adequate notice of the date on which nomination papers were to be filed. But he failed to specify the constitutional rights he claimed to have been breached and constitutional duties not carried out. The court ruled there was no cause of action under the Constitution and dismissed the application. [Judgment awaited]

12. 18th July 2013: Pushe-Bar Bere v ZEC and ZEC Chairperson. [CCZ 48/13] Appeal against rejection of nomination. [Ref: Court Watch 13/2013] Ms Bere complained that she lodged all her documents for nomination with the presiding in officer in Ward 19, Makonde, but received a call later in the day from the presiding officer informing her that a photograph was missing from her documents. She went back to the nomination court at 5:15 pm to submit the missing photograph but was told that she could not do so as the nomination court sitting had ended at 4 pm. The court pointed out that she had not exercised her right to take her complaint to the Electoral Court in terms of the Electoral Act, something that should have been done within four days of the sitting of the nomination court. That being so, no constitutional cause of action was raised by her application, which was accordingly dismissed. [Judgment awaited]

13. 26th July 2013: Zimbabwe Electoral Commission and ZEC Chairperson Rita Makarau v the Commissioner General of Police, the Commissioner General of Prisons, the Commander of the Defence Forces, the GPA political parties and 16 others. [CCZ 64/13] Second opportunity to vote for Special Voters. [Ref: Bill Watch 32/2013, 33/2013] Special voting on the 14th and 15th of July was marred by confusion and disorganisation which resulted in more than 26 000 members of the uniformed forces failing to cast their votes. On 23rd July, ZEC made an urgent application to the Constitutional Court seeking an order that would allow special voters who were not able to vote on the designated special voting days to vote on 31st July. The application was heard on 26th July; on the same day the court granted the application, ruling that ZEC should take all necessary steps to ensure that officers under ZEC’s employ and members of the uniformed forces who had failed to cast their votes on 14th and 15th July should be authorised to do so on 31st July. [Judgment awaited]

14. 26th July 2013: Michael Kudakwashe Chideme, Zvamaida Murwira and the Zimbabwe Union of Journalists v ZEC, the President, The Minister of Justice and the Attorney General. [CCZ 61/13] Journalists’ request for early voting privileges. [Ref: Court Watch 14/2013] The applicants, all journalists, argued that because they would be deployed in various areas away from their constituencies on polling day, they should be granted a special vote in terms of section 81 of the Electoral Act allowing them to vote a day before general polling. The application was dismissed. [Judgment awaited]

15. 19th/20th August 2013: Morgan Richard Tsvangirai v President Mugabe, the Zimbabwe Electoral Commission, the ZEC Chairperson and the ZEC Chief Elections Officer. Presidential Election challenged. [CCZ 71/13] [Ref: Bill Watch 39/2013, 40/2013] On 9th August 2013, Mr Tsvangirai lodged an election petition in the Constitutional Court challenging the Presidential election result, and seeking an order setting aside the Presidential election as invalid and calling for a fresh election. Late in the afternoon on 16th August Mr Tsvangirai lodged a notice of withdrawal of his petition and issued a statement explaining that it was impractical for him to proceed because the Electoral Court had unduly delayed dealing with his separate application to be allowed access to electoral material held by ZEC for the purposes of his petition.

On 19th August, the Constitutional Court, citing section 93 of the Constitution providing that the Constitutional Court must “hear and determine a petition lodged”, ruled that a hearing and determination were essential. Mr Tsvangirai’s counsel then confirmed his client’s withdrawal and there was a brief contribution from the President’s lawyer.

On 20th August the court unanimously dismissed Mr Tsvangirai’s petition, declared President Mugabe duly elected and, for good measure, declared that the harmonised elections had been free and fair and conducted in accordance with the Constitution and the Electoral Law. Mr Mugabe was duly sworn in as President two days later.

[The official court document containing the court’s order and its explanatory statement, is available. No further judgment is expected. ]

Coming in Part 3

This bulletin summarises only five cases, because the next few cases need to be discussed together and if covered in this bulletin would make it too long. These cases involve freedom of expression, including press freedom, and the summaries have had to be updated to incorporate notes on the effect of recent Constitutional Court judgments in two of the cases. They will be summarised in the next bulletin in this series, which is Part 3.

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