COURT WATCH 6/2014
[24th April 2014]
Election Petitions Challenging 2013 Election Results in the Electoral Court
Part I – Withdrawal of Most Cases
Introduction
This bulletin is the first in a series on election petitions challenging individual election results in last year’s harmonised elections for National Assembly constituency seats and local authority councils. These bulletins follow Veritas bulletins issued last year covering court decisions in the run-up to the July harmonised election and the fate of Mr Tsvangirai’s Constitutional Court election petition challenging Mr Mugabe’s election as President, as follows:
Pre-election court cases
These bulletins covered cases arising from disputes over the election date, the amendment of the Electoral Act by Presidential Powers regulations instead of Act of Parliament, the lack of provision for voting by Zimbabweans in the Diaspora, difficulties over the nomination date and the non-availability of voters rolls, and the fiasco caused by the innovation of early special voting arrangements for the security forces. These were covered in the following bulletins:
Bill Watch 19/2013 of 11th June: Are Elections by End of July Possible? [Constitutional Court judgment of 31st May ordering elections before end of July]
Bill Watch 28/2013 of 4th July – Constitutional Court Confirms 31st July Election Date [the court’s order rejected an application for a 14-delay in the election, and upheld the President’s election proclamation, the use of the Presidential Power regulations to amend the Electoral Act, and election arrangements generally]
Bill Watch 32/2013 of 26th July – Special Voting Debacle Prompts ZEC Constitutional Court Application
Bill Watch 33/2013 of 29th July – Possible Implications of Constitutional Court Giving Special Voters a Second Opportunity to Vote
Court Watch 12/2013 of 3rd September – Part II of Pre-Referendum & Pre-Election Challenges – Cases to Postpone Election Date [detailed coverage of various challenges to the election date]
Court Watch 13/2013 of 4th September [Part III of Pre-Referendum & Pre-Election Challenges – Nomination Court Cases + Party Funding Case
Court Watch 14/2013 of 5th September [Part IV of Pre-Referendum & Pre-Election Challenges – Voting Rights, Special Voting and Voters Roll Cases
Dismissal of Mr Tsvangirai’s Presidential election petition
In the immediate aftermath of the election, the Constitutional Court’s dismissal of Mr Tsvangirai’s election petition challenging Mr Mugabe’s election as President was also covered in:
Bill Watch 39/2013 of 18th August – Tsvangirai Election Petition Withdrawn: Constitutional Court Sitting Monday 19th August
Bill Watch 40/2013 of 20th August – Constitutional Court Declares Mr Mugabe Elected President.
Petitions Lodged
In terms of the Electoral Act every election petition had to be lodged with the Electoral Court no more than 14 days after the announcement of the result concerned at constituency or ward level. This meant that the deadlines for lodging were 14th to 16th August 2013, depending on the announcement date.
101 petitions were lodged, of which:
· 95 came from MDC-T candidates
· 6 came from ZANU-PF candidates.
Most of these were either:
· withdrawn by the petitioners on various grounds, discussed below; or
· dismissed by the Electoral Court for procedural reasons [these cases will be detailed in Part II].
Of the 101 original petitions, only two have survived: the petitions contesting the Mount Pleasant result in the case of Jameson Timba v Jaison Passade and the Kwe Kwe Central result in Blessing Chebundo v Masangano Matambanadzo.
The decisions in these two outstanding cases are still to be announced – despite the passing in mid-February of the Electoral Act’s six-months deadline for the handing down of final decisions.
Difficulty in Getting Information on Election Petitions
After the initial flurry of announcements of over a hundred petitions being lodged, a great number of the cases were withdrawn. It was difficult getting accurate information from political parties and their lawyers about which cases were going ahead. After the courts had handed down decisions dismissing petitions, it was difficult getting copies of the Electoral Court judgments. As the whole process of an election includes any challenges to the results, it should be easier to get official information about their progress if the electoral process is to be truly transparent.
Withdrawal of Electoral Petitions
Section 178 of the Electoral Act allows a petitioner to withdraw his or her petition at any time, but stipulates that if a petition is withdrawn, the petitioner is responsible for paying the costs of the respondent.
Many 2013 election petitions were withdrawn citing the following grounds:
1. Inability to raise security deposit
The MDC-T was able to fund the essential security deposits for only 39 of the 95 cases originally lodged by its candidates. The party selected the cases most likely to win for party funding. Other petitioners were left to fund their own court cases, which resulted in most of the other 56 cases having to be withdrawn
Cash security deposits a statutory requirement Section 168(3) of the Electoral Act provides that “not later than seven days after the presentation of the election petition, security of an amount fixed by the Registrar of the Electoral Court, being not less than the amount prescribed by the Commission after consultation with the Chief Justice, for the payment of all costs, charges and expenses that may become payable by the petitioner, (a) to any person summoned as a witness on his or her behalf, and (b) to the respondent, shall be given by or on behalf of the petitioner.” The minimum deposit prescribed by the Commission [i.e., the Zimbabwe Electoral Commission] was $500 [see SI 87/2013], but the required amount fixed by the Registrar was $10000 in cash. MDC-T spokespersons and lawyers criticized this amount as prohibitive. Former Senator Obert Gutu, outgoing MDC-T Deputy Minister of Justice and Legal Affairs and a senior legal practitioner, said that an amount of $2000 per petition would have been sufficient and fair.
2. Non-availability of the Electronic Voters’ Roll
On the very eve of the harmonised elections Justice Mafusire had refused MDC-T’s application to order ZEC to produce soft copies of the roll to be used in the harmonised elections on the strength of evidence from the Registrar-General’s Office that an equipment malfunction prevented production of such copies. After polling and announcement of results the position remained unchanged: both ZEC and the Registrar-General continued to maintain that equipment malfunction made production soft copies of the roll impossible.
Faced with this situation, some petitioners withdrew their petitions. They believed it pointless to continue without the electronic voters roll, which they saw as essential to allow expert analysis of the roll to support allegations of vote-rigging.
Note: In December Registrar-General Mudede, giving evidence before Justice Bhunu in Mr Timba’s case, testified that the equipment essential to producing copies of the roll had still not been repaired or replaced.
3. Petitions Withdrawn for Procedural Reasons
Failure to comply with mandatory procedural provisions led to the withdrawal of other election petitions. Most withdrawals were prompted by the realisation that success was ruled out by decisions already handed down in cases dismissed by the Electoral Court for procedural faults, i.e., failure to comply with procedural requirements of the Electoral Act or the rules of court [SI 74A/1995] [these cases will be covered in Court Watch 7/2014]. The cases are listed below under headings indicating the reasons for withdrawal as far as Veritas has been able to ascertain them:
Copy of petition not served timeously on respondent
The following petitions were withdrawn because they had not been served on the respondents within 10 days after lodging the petition, as required by section 169 of the Electoral Act:
Takanayi Mureyi v Ezira Ruvai [Masvingo West]
Davies Shoko v Chiratidzo Iris Mabuwa [Mberengwa South]
Tinashe Gumbo v Joram Macdonald Gumbo [Mberengwa West]
Michael Costas Timveos v John Holder [Zvishavane-Ngezi]
Chinyere Joshua v Dorothy Mhangami [Gokwe]
Emmanuel Sibanda v Jeffrey Moses Runzwirai [Gokwe-Sesame]
Anadi Sululu v Mtokozisi Mpofu [Silobela]
James Gumbi v Samson T Mukanduri [Zaka East]
Jaison Andrew Matewu v Oliver Mandipaka [Buhera West]
Not providing contact details of persons accused of electoral malpractices
Kudakwashe Mandishona v Isaac Mackenzie [Kariba]
The matter was set down for hearing on 18th August before Justice Makoni. After hearing argument on preliminary issues the judge referred it for trial. Later the respondents raised the point that petitioner had not given the addresses of persons he accused of electoral malpractices, in breach of rule 21(f) of the rules of court, which calls for names and addresses of such persons to be stated in the petition. Justice Makoni referred the petition to Justice Bhunu for determination, as he had already dealt with the rule 21(f) issue when dismissing other petitions, for example, Tracy Mutinhiri v Jeremiah Chiwetu. On 25th November, to save court time and costs, the petition was withdrawn by the petitioner before set-down for trial.
Also withdrawn for this reason were the following petitions, the first two later in November, the last three on 20th December:
James Iain Hamilton Kay v Ray Kaukonde [Marondera Central]
Misheck Tofamangwana Kagurabadza v Irene Zindi
Dusty Zivave v Darlington Chiwa [Chiredzi West]
Patrick Tsumele v Calisto Gwametsa [ Chiredzi South]
Lovemore Matongo v Walter Mzembi [Masvingo South]
Failure to comply with unspecified procedural rules
Jacob Mafume v Shadreck Mashayamombe [Harare South]
Patrick Sagandira v Patrick Chinamasa [Makoni Central]
Pishai Muchauraya v Mandi Chimene [Makoni South]
Piniel Denga v Felix Mhona [Chikomba Central]
Voice Chinake v Christopher Mutsvangwa [Norton]
Fidelis Mugari v Walter Chidhakwa [Zvimba South]
Julius Magarangoma v William Mutomba [Buhera North]
On 26th November these petitions were withdrawn before the hearing. The reason for this was that there was no prospect of success, as the petitions breached the rules of court in one or other of the ways leading to cases being dismissed by Justice Bhunu in the preceding few days.
Difficulties over witnesses and/or legal fees
The following petitions were withdrawn because of difficulties in obtaining the necessary witnesses and/or raising funds to pay legal fees:
Tobias Tapera v Wonder Mashanade [Rushinga]
Jackson Dube v Alfred Maliki [Muzarabani North]
Leman Pwanyiwa v Joseph Mapiki [Shamva South]
Lovemore Moyo v Never Khanye [Matobo North]
Reasons for withdrawal not known
Erick Knight v Tendai Savanhu [Mbare]
Ezra Sibanda v Josphat Madubeko [Vungu]
Coming in Part II: Petitions Dismissed by the Electoral Court
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COMMENTS
The rigging goes on
Let’s see whether money is more powerful than God. Zpf is collecting all cash n ensuring that all other parties go broke, clever but not wise
Yep, Chaka. You are right. let us see. For everything that has been whispered in the ear will be shouted from the rooftops and everything that has been done in the dark will be brought into the light. When I was young and growing up I was taught what a terrible sin it is to lie, and cheat and steal and to hate. Today the fear of God has gone in Zimbabwe. We have a President who has ruled under false pretences through at least the last three elections. if he is happy with that then that is okay for judgment day dawns. There will be no Nikuv,ZEC, generals, Mudede rigging in heaven. They will be on trial in a vote they just cannot rig.