"In the meantime, the economy continues to unravel. Zimbabweans go hungry while their president makes absurdly optimistic claims about the size of the grain harvest. This is a country going steadily downhill. The acquittal of Mr Tsvangirai, though cheering in itself, will not halt that melancholy slide."

SOKWANELE

A Review of Election Petitions following the Parliamentary Elections of 2000

15 October 2004

Violence, intimidation and procedural irregularities have been features of Zimbabwean elections since the pre-independence election of March 1980. Doubtless they have always produced a flawed outcome. Possibly we have had members of parliament throughout the life of the nation who were never genuinely elected by the people.  But the elections of June 2000 reached a new low on the credibility scale.  And what has happened since then shows us that there is no longer any legal protection for the process of ensuring that elections are honestly conducted and the declared winners fairly represent the peoples’ choice.

The 2000 elections were held in an atmosphere of extreme tension.  Four months earlier the constitutional referendum had handed ZANU PF  their first loss at the ballot box and for the first time they felt their hold on state power seriously threatened by a nation-wide, organised and popular opposition party, the MDC.  Before the end of February they had responded to the defeat by launching a programme of violent land invasions, which rapidly revealed itself as part of a violent election strategy.  A governing party which was determined to retain its grip on power lifted the levels of violence, intimidation and deliberate subversion of the electoral process to far higher levels than had ever been experienced before.

In view of the campaigning environment, MDC’s success in winning 57 seats to ZANU PF’s 62 was remarkable.  But they felt they had been cheated out of several more victories and should rightly have gained a substantial majority of the 120 parliamentary constituencies.  The Zimbabwe Electoral Act provides for a judicial petition against an election result by any candidate who feels he or she has been prejudiced.  Such a challenge had been made by the spirited Margaret Dongo who contested a Harare constituency as an independent in 1995.  She challenged her defeat by ZANU PF in the High Court, the result was nullified, and in the ensuing by-election she won the seat.  The MDC thus had every reason to put faith in successful court challenges to the ZANU PF wins in constituencies where violence and intimidation and electoral malpractices could be proven.

The Electoral Act lays down required electoral procedures.  Parts XX and XXI describe Corrupt Practices and Illegal Practices which are offences and which attract fines and prison terms.  Part XXII outlines when an election can be voided as a result of these practices, while Part XXIII lays down the procedure for election petitions by any aggrieved parties.

The Act is quite specific in describing what constitutes corrupt and illegal practices.  Corrupt practices include treating (providing food, drink, entertainment or lodging in exchange for a vote), undue influence (violence and threats of violence), bribery (some overlap with treating but includes payment of election officials to influence the outcome), personation (voting in the name of another person or voting more than once), illegal transport (carrying a person to vote in a constituency where they are not registered).  Illegal practices are many, but those featuring in the MDC election petitions include distributing misleading facsimile ballot papers, carrying on campaigning activities on polling day within 200 metres of a polling station, publishing a false statement about the death or withdrawal of a candidate, obstructing a voter at or on the way to or from a polling station. All of these practices attract a fine and/or a period of imprisonment;  the High Court may also deprive a person convicted of an illegal practice of his or her vote for a period of five years, or from holding public office.

How much corruption or illegality is required for an election result to be invalidated?   To a certain extent this is left to the discretion of the court, but the Act does lay down guidelines.  Section 24 states that if the High Court rules that where “any corrupt or illegal practice” has been committed, by the candidate or any of his agents, or with their knowledge and consent, the election will be declared void.  However, where the offence is treating or undue influence or any illegal practice, it will not invalidate the election if the candidate or his agent did not agree to the practice, took all reasonable precautions to prevent the corrupt and illegal practices, and the offences were of a trivial, unimportant or limited character.

Between July 17 and 27, MDC losing candidates in 40 constituencies filed petitions challenging the ZANU PF victories.  In many of these contests, the margin of votes cast for the two candidates was relatively small, while in others it was very wide.  However, the closeness of the contest is not an issue in the petitions.  The issue is the fairness of the election.  One incident of violence might intimidate hundreds or even thousands of voters, causing them to stay away from the polls or to change their vote.  One polling agent prevented from entering the polling station could mean that hundreds of people not on the voters roll were allowed to vote without anyone observing the malpractice.

Given the level of violence surrounding the election campaign and the large scale of irregularities on polling day, it should have been very easy for the MDC to gain High Court rulings voiding virtually all the election victories of ZANU PF.  However, this was not necessary.  A victory in only 4 would deprive ZANU PF of their majority of elected seats and a victory in 18 would deprive them of the overall majority in Parliament, even considering the 30 non-elected members who were all likely to be ZANU PF supporters.  Anything in between would render the ruling party’s hold on Parliament tenuous at best.

The evidence gathered, documented and presented in support of the petitions makes chilling reading – murders, torture, serious assaults, burning of property, and thousands of cases of threats of the above.  Examples from only two constituencies will make it clear:  in Gokwe East, one MDC activist was murdered by ZANU PF supporters; 17 assaults were proven, including two people beaten unconscious and two others abducted and forced to jump into a dam; burning and damaging of houses forced whole families to flee.  In Chiredzi North fifteen documented assaults included assaults on children as young as two years old, houses of MDC supporters were burned, others had windows smashed, a store of an MDC supporter had the windows smashed and was looted more than once. The owner was threatened with decapitation, village heads were threatened, MDC supporters were threatened with being killed, and a teacher was threatened with removal, had the windows of his house smashed, and stones thrown at him.  In virtually all of the incidents cited in the petitions, the perpetrators of the actions are named or are identified by their use of ZANU PF paraphernalia, slogans, or vehicles.  In many constituencies cases of torture were documented, including torture of the candidate himself by CIO (Chikomba). 

Two points must be made about the evidence presented in the petitions.  Firstly, the incidents documented are in all cases only a fraction of those that took place.  Many were never reported while many other victims did not make statements in affidavits for fear of future reprisals.  Secondly, where such actions take place, the demonstration effect of a single brutal act does its work on tens, hundreds or thousands of others, which is of course the intention in the first place.

In addition to the violence and threat of violence (described antiseptically in the Act as “undue influence”) virtually all of the election petitions include allegations of illegal and irregular practices at the polling stations and irregularities in counting.  Frequent practices mentioned are: various forms of prohibited campaigning within 100 metres of the polling station, MDC polling agents prevented from entering the station and prevented from accompanying the ballot boxes, missing ballot boxes, sample ballots with a large X next to ZANU PF, voters being instructed to vote for ZANU PF as they entered the polling station, ink detectors not working, voters being allowed to vote again even though ink showed on their hands, irregularities in the voters roll, ZANU PF torture bases being used as polling stations, and perpetrators of torture being polling officers.

Of the forty petitions filed, eighteen have been heard by the High Court; in two of these the MDC petitioners did not turn up at the court, so the cases were dismissed.  Sixteen of the petitions originally filed were not proceeded with, three because the holder of the seat died before the case could be heard.  Some were withdrawn because of threats by ZANU PF, either against the candidate himself, or against witnesses.  In one case the candidate had his farm invaded and taken away, in another the candidate cannot be located, in still others the candidates decided not to proceed because there had been such long delays in bringing the matter to court.  Five petitions are still waiting to be heard by the High Court. 

Of the sixteen petitions contested, seven were judged in favour of the MDC, nullifying the election result.  Nine were given in favour of ZANU PF. In Buhera North, where Morgan Tsvangirai was the candidate, the judge ruled that corrupt practices in the form of undue influence which was not of a “trivial, unimportant and limited character” forced him to declare the election result void.  In Chiredzi North, the judge said that corrupt practices had not been proved, but the widespread violence and intimidation of the electorate negatived the concept of a free election, and she therefore declared the election void.  In Gokwe North, the judge ruled that the candidate had not taken precautions to prevent corrupt practices and the ones that took place were not trivial, unimportant or of a limited character.  In Gokwe South the candidate was severely assaulted and a rumour spread that he had died; ZANU PF was declared to be guilty of corrupt practices and the result declared void.  Hurungwe East and Makoni East were also voided on account of widespread intimidation.  In the Mutoko South constituency, the judge noted that the MDC candidate had been kidnapped by war veterans and brought to a meeting where the ZANU PF candidate was present and forced to contribute to the ruling party’s campaign.  The judge also noted that the law did not permit him to take into consideration whether the violence and intimidation affected the result; the fact that such activities took place prevents a colluding beneficiary from being declared a winner.

In nine  constituencies the election petition was rejected.  In Chiredzi South, although the MDC candidate led evidence of widespread  serious intimidation, prevention of campaigning, threats of assaults and killing, as well as irregularities and illegalities at polling stations, the judge ruled that there were only a few incidents and they were not of a general nature.  The case in Chinhoyi  rested mainly on bribery and treating, which the judge dismissed as unproven.  The ruling against the MDC in Goromonzi has not been supported by any written explanation by the judge.  In other cases, similar explanations were given for rejection, even though violence was proven.  One judge commented that “Senseless political violence that seeks to punish the victim for belonging to a different political party is not undue influence under the Act…since the violence was targeted at the MDC as a party and not at a particular person the first element of the offence of undue influence is not proved.”  Another, rejecting the petition for Murehwa North, said that the violence was only in the business centres and the south-west corner of constituency, therefore it was not widespread, even though nearly twenty witnesses testified to abductions, beatings and destruction of property affecting many more people.  The judge went on to disregard the Act’s provisions when he referred to an English judgment which allows the judge to consider whether the corrupt practices in fact could have affected the result.  He held that the intimidation could not have affected the outcome because only 5 out of 12 witnesses said they had failed to vote the way they wanted due to intimidation.  This is nearly half, and half of those who were brave enough to stand up in a court and testify to ZANU PF violence! 

ZANU PF raised one petition against the MDC winner on the sole grounds that some pages of the voters roll were missing.  The court then voided this election.  However, numerous irregularities claimed in the MDC petitions were disregarded when judgment was being given.  No one could be blamed for concluding that many of the judgments given were not impartial.

One might expect that a Member of Parliament whose election was voided by the High Court would be required to step down.  However, that is not what the Electoral Act provides for.  It rightly allows an appeal to the Supreme Court, but more controversially allows the declared winner to remain in place until an appeal is heard.  Thus none of the defeated candidates whose election was voided stepped down, and all who are still alive remain as Members of Parliament up to today.

However, ZANU PF must have been disturbed by the prospect of results being overturned and their supporters and candidates convicted of corrupt and illegal practices, because they developed new tactics to prevent the electoral law from running its course.

·        In October 2000, the President issued a Clemency Order granting

amnesty to anyone who had committed crimes in the process of campaigning.  Only the crimes of murder and rape were excluded.  Thus all those who committed common law offences or offences included as corrupt practices were to be exonerated without even being brought to court, and the sections of the Electoral Act providing for their punishment or the withdrawal of their right to vote and to hold public office were rendered inoperative.  The law could not punish criminals.

·         In December 2000, before the first petitions were to be heard, the President issued a statutory instrument, stating that the election had been free and fair and that any corrupt or illegal practices were not violations of the Electoral Act.  The MDC successfully challenged this absurdity as unconstitutional and proceeded with the petitions.  But this was before ZANU PF drew its next poisoned arrow.

·        As the first judgments were being handed down in 2001, some of them overturning ZANU PF victories, ZANU PF already had an attack on the judiciary under way.  This resulted in most of the senior judges being forced to retire or resign, some to leave the country.  Within two years almost the entire Supreme Court had been replaced, and those judges who remain or are newly appointed know that what has happened before can happen again, and they will be wise not to aggravate ZANU PF.  Others are openly ZANU PF supporters, some even having received illegally acquired farms, and one having himself defied a court order.

·        But perhaps even more significant, those who administer the courts were now firmly in the pockets of ZANU PF.  Although the Electoral Act requires an election petition to be submitted within 30 days of the announcement of an election result, no time limit is given for the hearing of a petition or of an appeal. But the rules governing petitions state that the matters should be dealt with “as quickly as possible”.  The administrators of the courts have simply failed to allocate sufficient judges and to set down petitions and appeals for trial.   

Thus there are still five petitions which have never been heard, and only three appeals have been heard; those filed in 2001 began to be heard in 2004, but by October the Supreme Court is yet to give any judgment.  The strategy  of delaying the judicial process has effectively nullified the right of petition provided for in the Electoral Act, as well as the protection of the law enshrined in the Constitution.  More than four years after the election, when the life of the Parliament is about to expire, not a single petition has been finalised. 

In spite of the large number of election petitions filed, the voluminous amount of evidence of serious corrupt and illegal practices and procedural irregularities, not a single ZANU PF M.P. has been forced to vacate a seat won through violence and corruption.  Rather, the perpetrators of violence and other criminal acts have been pardoned, and the ability of the courts to provide justice to the candidates and the electorate has been erased.

It is an important aspect of a free and fair election that the participants have the right to challenge the result in an impartial court of law; the fate of the MDC election petitions shows clearly that this right has been denied in Zimbabwe in respect of the 2000 parliamentary election.  A similar fate has befallen the legal challenge to the 2002 presidential election, which is still tied up in a judicial spider web two and a half years on. 

There should be no need to further demonstrate the determination of the present regime to subvert the processes by which the electorate select their representatives to govern them.    For the past four years we have had parliamentarians sitting smugly in their seats, knowing full well that they have in fact been rejected by the people.  When an electoral system fails this badly it can no longer be graced with the adjective democratic; it is rather a means for a dictatorship to retain a façade with which it attempts to persuade the naïve that it holds some form of legitimacy.

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