BILL WATCH 40/2013
[20th August 2013]
Constitutional Court Dismisses Tsvangirai Election Petition
Declares President Mugabe Duly Elected
At 2.30 pm this afternoon, 20th August, Chief Justice Godfrey Chidyausiku handed down the unanimous decision of the Constitutional Court dismissing Mr Tsvangirai’s election petition.
The short document setting out the court’s decision starts with a brief statement of the court’s conclusion that an election petition challenging a Presidential election “is unique, in that it cannot be terminated by a withdrawal. In terms of section 93 of the Constitution of Zimbabwe, once such an application or petition is launched it can only be finalised by a determination of the Constitutional Court by either declaring the election valid, in which case the President is inaugurated within 48 hours of such determination, or alternatively by declaring the election invalid, in which case a fresh election must be held”. It followed that Mr Tsvangirai’s purported withdrawal of his petition before the court determined the matter was “of no legal force or effect, save to indicate to this Court that the applicant had abandoned or does not persist with his allegations”. In addition to dismissing the petition the court made the following determination and declaration in terms of section 93(3) and (4) of the new Constitution:
“1. THAT the Zimbabwe Presidential election held on 31 July 2013 was in accordance with the laws of Zimbabwe and in particular with the Constitution of Zimbabwe and the Electoral Act [Chapter 2:13];
2. THAT the said election was free, fair and credible. Consequently, the result of that election is a true reflection of the free will of the people of Zimbabwe who voted; and
3. THAT Robert Gabriel Mugabe was duly elected President of the Republic of Zimbabwe and is hereby declared the winner of the said election.”
The petition was dismissed with costs on the ordinary scale. The court said full reasons for judgment will be released in “due course”.
Way Now Clear for Inauguration on Thursday 22nd August
Mr Mugabe must be sworn in within 48 hours of the Constitutional Court’s declaration that he was duly elected President – that is, by no later than 2.30 pm on Thursday 22nd August [Constitution, section 94(1)(b)]..
On his return from the SADC Summit on Sunday afternoon, Mr Mugabe anticipated the court’s decision by announcing, that his inauguration would be on Thursday.
Summary of Constitutional Court Hearing on 19th August
The Constitutional Court’s decision finally puts an end to Mr Tsvangirai’s election petition, as was probably inevitable following Mr Tsvangirai’s attempted withdrawal of the petition last Friday 16th August and the brief hearing of the matter before the full nine-judge bench of the Constitutional Court on Monday 19th August. That hearing, which is summarised below, took place in accordance with the direction of the Chief Justice issued on Friday after the lodging of Mr Tsvangirai’s notice of withdrawal. [See Bill Watch 39/2013 of 18th August for details of the lodging of Mr Tsvangirai’s election petition on 9th August, events leading up to the filing of a notice of withdrawal by Mr Tsvangirai’s lawyers late on Friday 16th August, and the Chief Justice’s subsequent direction that all the legal practitioners in the case should appear before the Constitutional Court on Monday 19th August at 10 am.]
Necessity for a hearing and a determination
This point was raised by the Chief Justice at the commencement of Monday’s hearing. He questioned the legal effect of Friday’s notice of withdrawal by Mr Tsvangirai in the light of section 93 of the new Constitution, which provides that the Constitutional Court must “hear and determine a petition lodged”.
Advocate Mehta, appearing for Mr Tsvangirai, informed the court that his instructions were restricted to confirmation of his client’s withdrawal of the petition and making submissions on costs.
Mr Hussein, for President Mugabe and Mr Kanengoni for the Zimbabwe Electoral Commission [ZEC] and its chairperson both submitted that a hearing and determination by the court were essential. Once a petition is lodged, they submitted, a hearing and determination are necessitated by the Constitution.
Mutamangira, for the Attorney-General, who applied to participate in the case as a “friend of the court” in terms of section 167(5)(c) of the Constitution, agreed.
The court then approved the participation of the Attorney-General and ruled that a hearing and determination were necessary.
The “nominal” hearing ensued
Advocate Mehta said that he had only been instructed on the withdrawal of the petition and had no instructions on which he could make submissions on the merits of the petition.
The court took note that Advocate Mehta had nothing to say on the merits of the case.
The court proceeded to hear submissions from the lawyers for both sides on costs.
Submissions on costs
Advocate Mehta, in accordance with his client’s instructions, confirmed Mr Tsvangirai’s tender of costs.
Mr Hussein submitted that the petition contained generalisations but no evidence and that it purported to rely on evidence to be filed or led at a later date. This meant that there was no evidence before the court supporting the petition. He asked the court to order Mr Tsvangirai to pay President Mugabe’s legal costs on the higher scale. Justice Malaba questioned whether such an order would be appropriate, given that Mr Tsvangirai, by withdrawing, had avoided wasting the court’s time any further.
Mr Kanengoni said his clients abided by the opposing papers they had filed, and asked for their costs on the ordinary scale.
Mr Mutamangira, for the Attorney-General, did not ask for costs.
Petitioner’s imputations against the Constitutional Court
The Chief Justice then raised with Mr Mehta the question whether Mr Tsvangirai’s lawyers were in agreement with statements in the petition that impinged on the integrity of the court. In response Mr Mehta dissociated himself and his colleagues from the averments in question, saying they were the petitioner’s personal views.
Adjournment to 20th August for judgment
The court then adjourned. The Chief Justice said its decision on the petition would be handed down at 2.30 pm on Tuesday 20th August. [See court’s decision above]