Vox populi, vox dei: Concourt riles

The Constitutional Court of Zimbabwe yesterday declared zanu-pf presidential candidate Cde Emmerson Dambudzo Mnangagwa the winner of the July 30 presidential contest.
Here our Senior Writer, Lovemore Ranga Mataire (LRM) spoke to Minister of Justice, Legal and Parliamentary Affairs Cde Ziyambi Ziyambi (ZZ) to get a better understanding of the whole court processes and the failure by the South African lawyers to secure work permits.

LRM: Honourable Minister congratulations for winning the 2018 harmonised elections and also for the Zanu-PF presidential candidate being declared the winner. What is your general overview of the whole process since the time the MDC-Alliance filed their petition up to today?

ZZ: I think the process from the time the MDC-Alliance filed their petition went well even though you will recall that the MDC-Alliance filed their papers out of time, which the Chief Justice condemned. I think the process went well, we responded to their application and we put in our heads of argument and the case was heard on Wednesday.

What is pleasing about the case is that: we followed our constitutional provisions according to Section 93 that gives a right to any challenger to contest results within seven days and the MDC exercised that right to approach the Constitutional Court with a Section 93 application. The other pleasing thing was that I think our lawyers acquitted themselves very well as officers of the court.

I give it to both sides; it will lead to the development of our jurisprudence. This is perhaps going to be used as one of our case laws to be used in Zimbabwe and maybe beyond the region. The world was able to see our best legal minds arguing the case, which was very refreshing.

However, in terms of Zimbabwe as a country, I think we showed some maturity in that we argued our case and the Chief Justice duly deliberated on the issues and upheld the will of the people as expressed on July 30 that Cde ED Mnangagwa won the race.

So what is left now is that an election is an event that allows people to choose representatives that will steer the country forward in terms of developing that particular country. We believe that elections is over, the mandate has been given and what is left is to allow those that have been given the mandate to now steer the country forward so that we develop economically and improve the livelihoods of those that mandate this group of people to lead the country.

LRM: But minister, others would argue that had the MDC-Alliance allowed to use the lawyers of their choice particularly the South Advocates, maybe the outcome could have been different. What is your comment on that perception?

ZZ: I will respond in two parts. The first being that you will recall that when the results were announced, the Alliance leader Nelson Chamisa announced that they were going to assemble a team to challenge these elections and they were fully aware as experienced lawyers that they were to bring in Advocates.

If you go into the history of this country, we have never had an application of this nature that was submitted in a day and processed in a day or two and granted. It is a process.

If you go to Section 7 of the legal practitioners act, it stipulates the processes that need to be done. Now if you look at the Alliance team what they did. They went to my office well after 5pm; the office closes at 5pm- to deliver an application for an exemption for their lawyers to appear in the court.

They knew fully well that the chances that I will be in that office are probably less than one percent. I then saw the application on a Monday. It was just an application with an averment saying this is Gauntlet, he wants to appear, can you give him an exemption and nothing was attached for me to apply my mind and then request for advice from the Council for Legal Education according to the dictates of the legal practitioners act.

So when I saw the letter I then wrote to Atherstone and Cook to say can you furnish me with these documents so that I can process it. This was on a Monday and the hearing on a Wednesday.

They wrote back after lunch and duly write to the Council for Legal Education for advice and they responded on Tuesday indicating that the chairperson of the council was out of the country. She had some emergency family issues to sort out and they were circulating the letter among the council so that they give sound advice.

LRM: So in essence they were not denied the right to represent their client?

ZZ: They were not denied. No letter was written to say that the Advocates had been denied. What happened is that there was impossibility of performance because they gave me one and half days and by the time the hearing started I was yet to receive a letter from the council for legal education.

So I said to myself even if I am to receive it, this type of application hearing happens in one day it will be an after-effect. In the Alliance, they have experienced legal practitioners who knew very well right from the start that they wanted these lawyers, why didn’t they apply well in advance?

Why put the pressure on me to violate the rules and laws of the country by giving them an exemption without applying my mind.
It’s more of less what the Chief Justice said today. They knew very well that a Section 93 application of this nature must be filed within 7 days, they waited until the last day they failed to serve.

The Chief Justice was very clear that they were in the wrong and he said, ok, I will exercise my discretion and condone what you have done then I will go on to0 look into the merits of the case.
But in other words, if you listen to the chief justice he had an option to strike it out as if there was no application that was presented to the court in the first place.

The Chief Justice said because of the nature of the application I am going to condone it. Why do people want to be condoned in everything their doing when they fully reconciled their minds to the fact that this hearing was going to happen on a Wednesday, why bring it on a Monday.

So I never refused any exemption at all, but I was following due process and then the time lapsed the hearing was one. They even attempted to make an urgent chamber application to compel me but by the time they made the application there was no one to hear the chamber application because the application was already being heard by the constitutional court.

LRM: What is your comment regarding the live broadcasting of the whole court proceedings?

ZZ: I think firstly the Judicial Services Commission (JSC) must be commended for allowing it because our social media is polluted with falsehoods.

The mere fact that it was broadcast live, we could see as proceedings were unveiling people beginning to realise the lies that were peddled by the MDC-Alliance, that they had a secret weapon; had V-11 forms.

When they got to court, everyone could see that in their application they wanted to be declared winner but when the hearing started their argument was saying we have come here requesting the court for a rerun and everybody could see that they did not have evidence beyond reasonable doubt to prove their case.

They were relying on hearsay, the beauty of the broadcast was that everyone could see for themselves without anyone misinterpreting what was happening which was good for our country. We have shown that we are an open democratic country with nothing to hide.

LRM: Minister, the argument that was put forward by Dali Mpofu and Tembeka Ngcukaitobi is that you are an interested party because you were the chief election agent for the ZANU-PF presidential candidate therefore you made it deliberate to deny them the right to represent the MDC because you were an interested party. How do you respond to that?

ZZ: My response is in two parts; our laws are very clear. You have the right to approach the courts if you feel your rights have been violated. They didn’t give themselves sufficient time to make an application to the courts to compel me to do something that they believe I was doing wrong.

I view it as political posturing, these guys knew they didn’t have a case right from the start. This is why they waited for the last minute to file their petition according to Section 93 of the Constitution.

What did they do? They waited until the last minute to make applications for exemption certificates for their lawyers. I don’t believe they suddenly realised two days before the hearing that I was the Minister of Justice and I was an interested party. They knew from the day the Nomination Court sat that I am the chief election agent, I am ZANU-PF and I am the Minister of Justice, why didn’t they take remedial action there and there?

LRM: So you think it was all political?
ZZ: It was all political, they were political posturing. My reading of the whole thing, which is why I commend the Chief Justice is that he had an opportunity to strike it off because there was no application but he said no, because of the nature of the application and its importance we are going to go into the merits. What they were simply doing was they wanted to get sympathisers by saying that the case was never heard on merits, in this case they are trying to get sympathisers by saying our advocates were denied a chance.

The Chief Justice was very articulate, the Alliance they never brought evidence. It`s not that their advocate was dull, it is not that he was not capable but the client did not provide him with sufficient evidence to prosecute the case.

I think their advocate did a good job of trying to go round and use flattering language because he did not have anything to do. I do not believe that because we ran out of time, and we could not process their application it was my fault.

LRM: What does this victory mean to Zanu-PF? Are you vindicated that you won fair and freely. What does this mean to Zimbabwe and the region?

ZZ: Firstly, I will say this being my first election as a chief election agent, you will recall when the president got into power he declared that he wants elections that are free, fair and credible. From December, people have freely expressed themselves. There have been demonstrations, we have campaigned freely, and everyone was free to do whatever they wanted. He even invited observers from everywhere and we had peaceful pre elections and elections.

Regrettably because of other people who instigated some of our people to go into the streets, we lost lives. That was regrettable. But what this victory means is we have managed to show the world that we can hold elections in a free and democratic manner and hold very credible elections. The court has vindicated us.

You saw they requested for information that the election was manipulated and there was nothing.

LRM: Where do we go from here? We have heard the court judgment and you are the Justice Minister, what is the way forward? Take us through what happens after this court judgment?

ZZ: Section 92 of the Constitution is very clear. Once this challenge has happened, you wait for the court judgment and once it’s out and confirms the result, in this case the court confirmed President Emmerson Mnangagwa is the duly elected president, it then stipulated that inauguration has to occur within 48 hours of that judgment having been passed.

If you look, it was around4pm when that judgment was passed. It means that by 4pm on Sunday (August 26, 2018), inauguration must have taken place. We have started the processes of preparing for the inauguration on Sunday which must be complete by 4pm.

LRM: Lastly Minister, the electoral victory of President Mnangagwa represents what others are calling a Second Republic, because the first republic was from 1980 to November 2017. Give us a brief glimpse of the Second Republic set to be ushered by President Mnangagwa and his administration.

ZZ: The Second Republic’s mantra is economic empowerment and development. The President started by saying we are opening up for business and he has a vision that by 2030 we should be a middle income country. So the thrust of the Second Republic is to ensure that we create an environment where the rule of law will flourish. To create an environment where fundamental human rights are protected and enhanced.

Once you build on this foundation, you are building a foundation for economic development. Because where your rights are respected and asserted an investor can come and invest in that country knowing full well that he or she has recourse to a justice delivery system that will ensure that rights are protected.

We are entering a Second Republic that will focus on issues of bread and butter, reengagement, and ensure that we make as many friends as possible and fewer enemies, a new republic that will ensure that we become part of a community of nations.