By Farai Sevenzo Harare More than two weeks after Zimbabwe's disputed elections, the game between the country's political factions has become a lot tougher, while the results of the presidential poll are still nowhere to be seen. The opposition Movement for Democratic Change (MDC) has tried to force the issue legally, but the judge ruled that he had no sway over when the Zimbabwe Electoral Commission (ZEC) should release the results of the 29 March poll. There is strong security presence in some places With just 20% of the population in full-time formal employment, the MDC's first shot of engagement, Tuesday's general strike, was feeble and, some would say, predictable. "People don't want stay-aways, they want to know what to do about their votes," a Harare lawyer tells me over the telephone. "In the meantime, the people who claim they have won are showing absolutely no leadership - I believe [MDC leader Morgan] Tsvangirai is in Botswana - it reminds me of that Third World song: 'Now that you've found love what are you going to do with it?' There is no leadership." Lost momentum And that has been the MDC's difficulty - having claimed victory, they have no control over anything - the results, the courts, the police, or access to the public through the airwaves which chanted their slogans so keenly 17 days ago. The momentum they had enjoyed has evaporated; in its place a silence among the leadership is noticeable. Meanwhile, Southern African Development Community (SADC) heads of state have met and deliberated that the two parties should accept Zec's results. But no one believes that the results will come any time soon. The issue of Zimbabwe has now moved from the SADC regional grouping to the international scrutiny of the UN Security Council. South Africa's President Thabo Mbeki, a smiling friend of the ruling Zanu-PF, would like to discuss trouble spots like Somalia and Darfur, but Zimbabwe and its political impasse has become the order of the day. The game has indeed got a lot tougher. Unleashed Reports started coming in early last week of a new wave of farm invasions. Opposition calls for a strike went largely unheeded The Commercial Farmer's Union tells me, yes, some of their members had come under attack, livestock had been slaughtered, families had moved out to the safety of towns. Some have condemned the fresh attacks, such as governor of the Reserve Bank Gideon Gono - a man trying to manage Zimbabwe's embattled economy - who is a chief critic. Something has been unleashed, although it is difficult to get a clear picture. Zimbabweans with satellite television are watching international broadcasters talk of a wave of violence sweeping the countryside, targeting members of the opposition, dragging the sick out of mission hospitals and threatening war should the vote go the same way again in the event of a run-off. Non-government newspapers on sale in Harare are full of swollen limbs, while the language of the state has got more belligerent as the gag tightens on those results. "We have not yet been able to confirm some of the reports we've been getting," says Olivia Muchenge, of the non-governmental organisation ZimRights. "But the reports suggest a backlash is under way. We know for certain that some Harare youths from the Youth Forum are in a private hospital in Masvingo after being assaulted." And the Zimbabwe Association of Doctors for Human Rights says its members have treated 157 victims of post-election violence. Crowd control In these tense times, the state broadcaster is less neutral than it was before the elections. On Tuesday, it said a bus had been set alight in the Harare suburb of Kuwadzana by MDC supporters wanting to stop people going to work, but no-one could confirm the mob action. For over a week now, police and soldiers have been practising along Main Way A mechanic on independence day celebrations Later a policeman, who has proved an accurate source in the past, rang me about Tuesday's events. He told me that a bus did burn in Kuwadzana, but it was because of a technical fault. He also said Tuesday's crowds were difficult to control in the Harare township ward of Budiriro, Highfields. "We had to talk to them without our truncheons and teargas canisters before they would disperse," he tells me . Going on parade Now the date on everyone's mind is 18 April - when Zimbabweans are to celebrate their 28 years of independence from the UK. "For over a week now, police and soldiers have been practising along Main Way, the road leading to Machipisa, the heart of Highfields," Thomas, a mechanic, tells me. "They will be holding Independence Day in Gwanzura Stadium. The Harare City Council has been cleaning in preparation for the president's visit." And that is just it. The president is still the president, his motorcade will pass through a constituency where at one polling station, Highfields Secondary, the party of independence gained 14 votes - according to results we do not yet know.

Mugabe Turns to Force to Reverse Poll Defeat

Business Day (Johannesburg)

17 April 2008
Posted to the web 17 April 2008

Dumisani Muleya
Johannesburg

ZIMBABWEAN President Robert Mugabe and his Zanu (PF) party - defeated in
recent elections after 28 years at the helm - are plotting to retain power
through a combination of force and official challenges designed to frustrate
the opposition and drain their resources.

This week the government stepped up the deployment of army, police and
intelligence units countrywide to campaign for Mugabe in an upcoming runoff
poll after he failed to win presidential elections.

This despite the fact that the poll results have not been officially
announced, and that a date for the runoff has not been set. Opposition
Movement for Democratic Change (MDC) leader Morgan Tsvangirai has claimed
victory in the election.

An increased military presence has been noted and there are fears that
Mugabe will use troops to bolster his campaign. Security forces have already
arrested dozens of opposition supporters, and MDC officials said they were
concerned violent incidents would increase.

During a session of the United Nations (UN) Security Council, chaired by
President Thabo Mbeki in New York yesterday, British Prime Minister Gordon
Brown and US ambassador Zalmay Khalilzad were among the first to express
concern about the crisis. They repeated UN calls for the immediate release
of the election results in an effort to end the stalemate.

Mbeki's facilitator, Local Government Minister Sydney Mufamadi, was due to
visit Harare for talks with Mugabe and Tsvangirai yesterday but was unable
to because Tsvangirai was out of the country soliciting support from
regional leaders.

The MDC remains sceptical of Mbeki's mediation, sources say, and there are
behind the scenes negotiations to get Mugabe and Tsvangirai together as a
step towards brokering some sort of deal. But, while the stalemate
continues, sources said this week that Mugabe and his loyalists were pulling
out all the stops to reverse their recent defeat. Meetings have been held
countrywide by party structures which reviewed Mugabe's and Zanu (PF)'s
loss.

Sources said that Zanu (PF) was consolidating its resources to regain a
majority in parliament and then win the presidential election via a runoff
or re-run. The strategy includes delaying results to buy time; a runoff poll
and coercion to force voters to again vote for Mugabe.

Sources said Mug-abe's close ally, Emmerson Mnangagwa, had recently met
allies in Johannesburg to discuss fundraising. They said Mugabe wanted the
March 29 presidential poll results withheld while the party regrouped . They
also hoped that the disputed recount of votes in 23 constituencies would
lead to the party regaining a marginal majority in the house of assembly.

Zanu (PF) won 97 seats while the combined opposition won 110. Three seats
are vacant because the elections were postponed after candidates died before
the polls. Out of 23 recounts, Zanu (PF) needs at least 14 seats to keep
control of parliament. The MDC launched a counterattack by challenging the
results in 60 constituencies.

It is believed Zanu (PF) party officials have been dispatched to approach
fired or suspended members to campaign for Mugabe. Many, including expelled
former information minister Jonathan Moyo, have apparently refused.

More worrying is news that war veterans, youths, and security forces
including army and intelligence officers have been deployed to campaign for
Mugabe.

Much confusion over Zim 'arms' ship

iafrica.com

Thu, 17 Apr 2008
A Chinese ship, whose cargo is alleged to include arms for Zimbabwe has been
cleared to dock and offload its controversial cargo in Durban's port,
Transnet said on Wednesday.

Transnet spokesperson John Dludlu said in a statement released late on
Wednesday: "As for vessel An Yue Jiang, we wish to confirm that this vessel
with its cargo destined for Zimbabwe is at anchorage outside the Port of
Durban.

"As is procedure with all vessels, the vessel and its cargo have been
cleared by the relevant authorities," he said.

However, Dludlu did not say what the contents of the cargo were — which
according to Noseweek editor Martin Welz includes a shipment of arms.

The ship's master, who identified himself as captain Sunaijun, told Sapa by
radio phone that there was "no dangerous cargo on general cargo".

Asked if there was cargo destined for Zimbabwe, he confirmed there was.

However, clarity on the contents of the cargo could not be ascertained due
to the poor quality connection in communicating with the ship.

Earlier, on Wednesday Inspector Nicholas Gunther of the Police Explosives
Unit in Durban told Sapa that An Yue Juang was carrying weapons.

"There are arms on the vessel and the ship is on the outer anchorage of the
port and it's been docked here since 14 April. We have not allowed it in
because they have no clearance, which is something they should have gotten
beforehand.

"We went there just now and they are not being allowed in," he said.

"There was a problem with documents they submitted and we have directed the
matter to the chief inspector of explosives in Pretoria, Senior
Superintendent Van Sittert, and it may take days for them to get clearance,"
said Gunther.

Gunther said that if the vessel's entire cargo did not get clearance, it
would not be allowed to dock. He explained that if, for example, the ship
was carrying 500 containers and only one container had not been cleared, the
vessel would still be allowed to enter the port.

"They would be allowed to enter, offload those containers that have been
cleared by the South African government and leave with those that had not
been cleared."

Gunther told Sapa that he was not certain if any of the cargo was destined
for Zimbabwe.

"But if it was a trans-shipment then it gets imported here and is sent by
road or rail to neighbouring countries. We are not sure if that's what they
are doing," he said.

Leonard Hadebe, head of customs in Durban said: "We have confirmed that the
shipment was headed for Zimbabwe.

"Right now the ship is awaiting clearance. If they are carrying any
prohibited or illegal goods, they will be detained by customs.

"So far I've been told that there are 36 containers on board and until
customs has cleared the containers we don't know what's inside."

Durban port captain Ricky Bhikraj confirmed that the An Yue Jiang was
scheduled to dock in Durban's harbour on Thursday.

"Allegations are being handled by various national security authorities," he
said.

Noseweek editor Welz earlier told Sapa: "the cargo ship was openly
delivering a containment of arms for Zimbabwe."

Asked where he had obtained the information from, Welz said it was his "own
business".

Bhikraj, asked whether there were arms on the ship, said: "We can't comment
on whether or not there are arms on the vessel."

National police spokesperson Captain Dennis Adriao said he would comment on
the matter once he had more details.

Spoornet spokesperson Mike Asefovitz said he was not aware that Spoornet had
been tasked with transporting the ship's cargo from Durban.

He said that during the apartheid era the previous regime transported arms
and military equipment on specially-designed trains within the country.

He said Spoornet no longer possessed any such specialised trains.

Democratic Alliance spokesperson Rafeek Shah said: "Due to the gravity of
the situation government needs to clarify exactly what the status and nature
of the shipment is without delay.

"There are conflicting reports about whether the weapons are still on board
the ship concerned or whether they, in fact, are on the road to Zimbabwe.
Either way, it is imperative that action is taken to ensure that these
weapons are not allowed to destabilise what is already a precarious
situation in Zimbabwe."
Sapa

Chinese intervention fears

The Citizen
17/04/2008 07:46:04

MPHO DUBE

JOHANNESBURG - “God is the only one who can protect us, we need help”. These
were the words of the Movement for Democratic Change (MDC) in Zimbabwe after
the recent bloodshed and violence in Zimbabwe.

After bloodshed in Zimbabwe and with fears voiced about possible
intervention on President Robert Mugabe’s behalf by Chinese troops, the
opposition MDC is close to despair.

The spokesman for MDC, Nelson Chamisa, yesterday told The Citizen the
situation in Zimbabwe was increasingly disheartening: “God is the only one
who can protect us, we need help.”

Chamisa said he was trying to come to terms with Mugabe’s mobilisation of
vigilantes to terrorise villagers in Matabeleland, Mashonaland and
Manicaland.

“The vigilante groups are brutally assaulting women, men and children who
are believed to be MDC members,” he said.

Nqobizitha Mlilo, of the MDC, yesterday said 50 houses had been razed and
200 people assaulted this week. He said “10 armed Chinese men” were seen
harassing the residents of Chimanimani in Manicaland, targeting MDC
supporters, and this had led to fears of foreign intervention.

“The police say they can do nothing because they have been given political
orders and cannot intervene,” Chamisa said.

Region cannot afford deeper crisis in Zimbabwe — Zuma

Business Day

17 April 2008

AFRICAN National Congress (ANC) president Jacob Zuma has urged Zimbabwe’s
electoral commission to work closely with the affected parties and to
resolve the delay in the voting verification process.

Addressing a Chambers of Commerce and Industry of SA (Chamsa) conference,
Zuma said: “The region cannot afford a deepening crisis in Zimbabwe. The
situation is more worrying now, given the reported violence that has erupted
in the country."

He wished President Thabo Mbeki, as a mediator, and all political parties
Godspeed in seeking a sustainable solution .

He also said the ANC backed the call for the South African police to use
lethal force should their lives or those of the public be in imminent
danger.

“In this war against crime we reiterate that our laws must bite. They must
favour the victims of crime and be unsympathetic to those who deliberately
seek crime as their employment."

He told the conference it should continue to support the country’s law
enforcement agencies, especially the police.

“The safety of our police officials and our citizens is of paramount
importance," he said. However, police had to act within the law. “We
obviously cannot, as a ruling party or government, advocate a culture of
trigger-happy police officials."

Last week, Deputy Safety and Security Minister Susan Shabangu told police
they should kill criminals if they threatened police or the community: “You
must kill the bastards if they threaten you or the community. You must not
worry about the regulations. That is my responsibility. Your responsibility
is to serve and protect."

Zuma said everyone had a role to play in building a united patriotic front
in the war against crime.

“How do we explain the audacity of criminals who break into and rob a court
of law, violating an institution which should protect us all, whose premises
should be sacrosanct?" Sapa

Diplomats at UN push for accord on Zimbabwe

Boston Globe

 By Maggie Farley
Los Angeles Times / April 17, 2008
UNITED NATIONS - Top diplomats at a special UN Security Council session on
Africa pressed Zimbabwe's president yesterday to solve the country's
election crisis, with British Prime Minister Gordon Brown charging that "no
one" thinks President Robert Mugabe has won.

more stories like this
UN Secretary General Ban Ki-moon urged Mugabe to release the final results
of the March 29 election that may topple the 84-year-old ruler, warning that
the situation could seriously deteriorate in Zimbabwe. He offered the United
Nations' help to resolve the impasse, including assisting in a second round
of "fair and transparent" elections if needed.

Zimbabwean opposition leader Morgan Tsvangirai claims victory, based on
results posted outside of polling places on election day. He has accused
Mugabe of using the delay to try to rig the results.

"No one thinks, having seen the results of polling stations, that President
Mugabe has won this election," Brown told fellow leaders and officials from
the Security Council and African Union nations gathered for the session on
African peace and security. "A stolen election would not be a democratic
election at all."

The meeting, chaired by President Thabo Mbeki of South Africa, which holds
the Security Council presidency for April, focused on how the Security
Council could help the African Union solve regional conflicts. But the
session was riven by subtle conflicts itself: Mbeki, an influential ally of
Mugabe, said last week after a visit to Zimbabwe that "there is no crisis"
and warned other countries not to meddle.

South Africa has blocked the Security Council from addressing the issue.
Mbeki canceled a morning meeting with Brown due to "schedule conflicts,"
which British officials sought to assure reporters was not a snub. Before
the morning council session, a small plane chartered by advocacy group
Avaaz.org towed a banner above the UN headquarters declaring "Mbeki: Time to
Act - Democracy for Zimbabwe."

The meeting aimed to smooth cooperation between the Security Council and the
African Union. The UN and the AU would like the regional group to assume
greater responsibility in dealing with local conflicts, which occupy much of
the Security Council's agenda.

The secretary general yesterday called for creating an African standby force
to be supported by an international trust fund and mediation team. The
United States, which pays 23 percent of the budget for all peacekeeping
operations, and Sudan urged the Security Council to focus on preventing
conflict to reduce the need for costly peacekeeping intervention.

The African Union's effort to stabilize the conflict in Sudan's Darfur
region has become a symbol of the unfulfilled potential of regional groups
to mediate conflicts. Poorly equipped and underfunded AU troops seeking to
bring peace to the war-torn region were absorbed into a joint AU-UN force in
January in hopes of better protecting civilians.

The joint force aims to deploy 26,000 troops by the end of the year, but so
far, only 9,000 are on the ground.

The deployment has been delayed in part by Sudan's insistence that all the
forces must be composed of African soldiers.

A Shameful Betrayal of National Independence

The Case for both Outthinking ZANU-PF and Putting National Interest First

By Arthur G.O. Mutambara

18th April 2008; Harare, Zimbabwe

Introduction

Fellow citizens once again we commemorate the great occasion of the
independence of our country from colonial and imperialist rule. The 18th
April should always be an opportunity for us as a nation to reflect, take
stock, and define new trajectories. This particular 28th commemoration is
like none of the previous ones. We are in uniquely invidious circumstances.
Our economy has virtually collapsed and industries have grinded to a halt.
Our society is calibrated by fear, terror and outright brutality. Our
national institutions of governance have been rendered dysfunctional and
impotent. We have had harmonized general elections, and twenty days later
the results of the Presidential polls are not yet released. One of the key
objectives of the liberation struggle was attainment of the one person one
vote dispensation. Twenty eight years after independence our people are
denied this basic right. Our country is characterized by extreme
illegitimacy where we have an abrasive caretaker President and an illegally
constituted Cabinet in cahoots with an imbecilic and cynical military junta,
running the affairs of our country. There is heavy army and police presence
in our major cities to intimidate ordinary citizens. Opposition supporters
are being brutalized and killed in the rural areas under an unprecedented
terror campaign.

This is the state of our nation on Independence Day. It is ironic that we
should be celebrating the birth of our freedom in the prevailing climate.
What a travesty of justice, principle and national interest!

Deconstructing the ZANU-PF Strategy

There is a method to the ZANU-PF madness we have witnessed in the last three
weeks. Mugabe’s strategy is pure and simple: Regain control of Parliament by
criminal and crooked means, win a run-off (or re-run) of the Presidential
elections by using brute force and blatant rigging, and thus control the
Senate as well. As a result of these efforts, ZANU-PF will be back in
complete charge and control of all the three arms of government; The
Executive, the Legislature and the Judiciary. The second phase of the
strategy will then be to force and harangue a bludgeoned and brutalized
opposition into a so-called Government of National Unity. This is the
strategic plan.

Fellow citizens, make no mistake about it. Mugabe now knows that he will
never win a free and fair election in Zimbabwe. The 29th of March made this
predicament unequivocally clear. Hence, if he agrees to any new election it
is clear that he would have put measures and systems in place to ensure his
victory by any means necessary. This is why participation or lack of it in
any new election involving Robert Mugabe is a huge decision conundrum for
the opposition: Damned if you do, damned if you don’t.

Let us further interrogate the ZANU-PF game plan. What does Mugabe need to
execute his evil strategy? Just a one word answer would do: Time. The key
resource that is essential to this regime is time. All that the post
election shenanigans have served to do is buy time for the dictatorship to
carry out the necessary intimidation and violence, while putting the
requisite rigging mechanisms in place. ZANU-PF strategists know that after
announcing the results they legally only have three weeks to the run-off.
They toyed around with the idea of demanding ninety days, but dropped the
proposition on realizing that they could not legally sustain it. The tactic
then adopted was to hold onto the results until they have done most of the
dirty work, and release the hung Presidential results when they have only
three weeks of evil steps to implement. A variation of the plan at that
stage is to allege gross and systematic patterns of misconduct and
irregularities, declare the Presidential elections null and void, and call
for a re-run instead of a run-off. Yes, Robert, we know what’s up. However,
we are glad that you also know what time it is.

In terms of the House of Assembly, the agenda is to fraudulently seize at
least 9 seats from the opposition through recounts and court action leading
to re-runs. This explains the twenty-three recounts that ZEC has instituted.
There is clearly criminal collusion between ZEC and ZANU-PF. To add insult
to injury, this unholy marriage is dutifully consummated by a compliant and
pliable judiciary typified and exemplified by Judge Tendai Uchena’s
unreasonable and thoughtless decision not to order ZEC to release the
Presidential results.

For the record, the farce about hung Presidential election results without a
clear winner should be rejected with the contempt that it deserves. Mugabe
lost the election and Morgan Tsvangirai won with an outright majority. What
ZANU-PF has successfully done is to psychologically prepare the nation for a
false result through massive propaganda, unmitigated lies and manipulative
distortions. It is clear that ZANU-PF’s keenness to portray the results as
hung means that the results are the opposite; i.e., we have an outright
defeat of Robert Mugabe. It is shameful that even regional leaders and the
international community have been duped by ZANU-PF’s big lie. All these
discussions of run-off or re-run options are testimony of, and submission
to, the power of a duplicitous ZANU-PF. Mugabe has won the psychological
warfare.

It is sad that in all this pervasion and destruction of the Zimbabwean
national interest, the illegitimate regime of Robert Mugabe has a partner in
crime in the name of the SA President. Yes, Mr. Mbeki there is a crisis in
Zimbabwe. We are sick and tired of your shameless antics. You clamour that
Zimbabwe is not a Province of South Africa, and yet you treat us worse than
your mother’s backyard. Whatever credibility and political capital you had
left from Polokwane, you are busy dissipating with reckless abandon. This is
not how one constructs a basis and rationale for the African Renaissance or
New Economic Partnership for Development. Shame on you Thabo Mbeki! Indeed
our cup of patience with you has run completely full. How can you be an
effective mediator between the Zimbabwean political parties when you show
such shameless duplicity, poor judgment and spinelessness? Zimbabwe and
Africa deserve better leadership than this.

Let us go to New York. How can we have deafening silence on African matters
by African leaders at the UN, and leave our case to be articulated by
Western leaders. African solutions for African problems demand proactivity
and ownership on the part of the African. We must take charge of our lives
and not abdicate on our obligations to the continent. The SADC summit
communiqué last Sunday was too timid and apologetic. Hence it was
ineffectual. What happened at the UN this Wednesday is not only disgraceful
but an affront to African dignity.  We must all hang our heads in shame.

The Appropriate Response from the Opposition

On the 29th of March, the people voted for change and against the status
quo. The removal of Mugabe and his fellow travelers was the issue, and
nothing else. The voter’s tactical decision was to elect those perceived to
have the best chance of defeating Mugabe. All democratic forces must
acknowledge and respect this choice. What is imperative is for all
opposition parties to close ranks and make the wishes of the Zimbabwean
electorate a reality. In any run-off or re-run of the Presidential Election
the support for Morgan Tsvangirai should be total and unconditional. There
will be neither equivocation nor ambiguity on that subject. He represents
the change that Zimbabweans voted for.  The people spoke on the 29th of
March. They seek no accommodation with the Dictator or any of his
manifestations. All democratic forces must stand with the people in pursuit
of the total annihilation of Robert Mugabe and all he stands for.

Going forward, all opposition parties, in particular the two MDC formations
must work closely on all matters affecting the national interest. They ought
to cooperate in the way they tackle the current political stalemate in our
country. There is need to unlock and leverage the collective wisdom, moral
authority, bargaining power and numerical strength that is unleashed by a
cooperating and united opposition fraternity. History will not absolve this
generation of leaders if we falter on this agenda. In fact, we will snatch
defeat from the jaws of victory.

Consequently, while the two MDC formations acknowledge that they are two
separate political parties, they must irrevocably agree and undertake to
work as one in the Legislature. In this regard they will have one Chief Whip
and a single Caucus. They will agree to vote together in order to drive the
transformational agenda in our country. There must be a solid and binding
coalition and co-operation agreement between the two MDC formations. It is
our intention it make it clear that our MPs will never vote with the
Dictator’s Party. We cannot work with criminals, economic saboteurs and
social deviants. Under no circumstances will we vote with Robert Mugabe.
Hell no, never, ever. Put simply, the opposition is now in charge of
Parliament with 109 MPs, period. That’s where the game is at Robert. Get
over it. The self-serving and speculative hallucination among ZANU-PF
apologists must stop. The opposition parties are united in their total
onslaught on the regime.

In a way, the people of Zimbabwe and the opposition forces are
underestimating the critical role and power of the House of Representatives.
This is probably because for the past 28 years it was rendered a docile and
ineffectual institution due to its domination by ZANU-PF. Now that we are in
control of this legislative organ of the State, let us demonstrate its true
function and impact. The 110 opposition Members of Parliament (from the two
MDC formations and the Independent MP) must informally convene, immediately.
They should elect the Speaker, and outline a comprehensive agenda for the
incoming Parliament. Items that should be debated and adopted must include,
but not limited to: (1) Impeachment of the caretaker President, Robert
Mugabe (2) Removal of AIPPA and POSA (3) Establishment of processes for
achieving a people-driven democratic constitution (4) Immediate prosecution
of public servants, including military and police officers who are currently
abusing their authority (5) Establishment of processes to rationalize the
land reform program (6) Setting up of a Truth and Justice Commission for
Gukurahundi and Murambatsvina (7) Immediate removal from office, and
criminal prosecution of, the RBZ Governor, Gideon Gono (8) Dismantling and
reconstitution of ZEC.

Although this gathering of, and resolutions adopted by these 110 MPs will be
informal, a framework for the terms of reference of the formally convened
House is thus created. As these MPs constitute the majority they will use
this informal platform to drive the Parliamentary agenda. This will send
shivers down the spines of that illegal cabal running our country, as
reality will suddenly sink in. The game is up! We need to demonstrate that
Mugabe has lost and that the people have won. Even without the Presidential
results we can unequivocally say that the Zimbabwean political landscape
will never be the same again. ZANU-PF understands what has happened. They
clearly appreciate the significance of their Parliamentary loss. This is why
they are busy trying to reverse their poor fortunes through recounts and
court actions. The opposition forces must both outthink and outmaneuver
these ZANU-PF losers who are running all over the place like headless
chickens.

Conclusion

In the history of every nation there comes a time when a generation has a
unique opportunity to break with the past and define a new direction. Such a
momentous occasion currently presents itself in our country. We need to
seize the time and deliver change. This requires putting national interest
before partisan, sectoral and personal interests. It demands that we apply
our minds and outthink the regime. What Mugabe has lost in the electoral
battle, he cannot legitimately regain in any election remotely described as
free and fair. He is fatally and mortally wounded. The veil of invincibility
has been pierced. On the 29th of March 2008 the people voted for change, and
that democratic choice must be defended. Our independence will be
meaningless without the sanctity and integrity of the one person one vote
principle. Those that rule our country must do so with the consent of the
governed.

If a run-off or re-run is illegally imposed upon us, the first order of
business is challenging and exposing the illegitimacy of the basis of that
proposition. More than ever, it becomes imperative for all the progressive
and democratic forces in the country to close ranks in pursuit of the
collective national interest. We must seek to establish a peaceful and
secure environment for those illegitimate polls. In addition to observation
SADC, the AU and the international community must be allowed to supervise
these particular elections; before, during and after the voting process. The
mandate of the external players must include the verification and
announcement of the results. Yes, the regime has behaved worse than East
Timor. We now need international supervision. Consequently, the notion of
regional sovereignty and the doctrine of international responsibility to
protect must now take precedence over Mugabe’s narrow definition of national
sovereignty. We have lost the right to manage our affairs alone internally.
We need help.

However, Zimbabwean citizens will be the key drivers of this revolution. The
power is in our hands. Let us stand up and be masters of our destiny. On
this occasion of our Independence Day, let us rededicate ourselves to
meaningful and total political and economic independence. The people should
govern. The people must prosper.

We shall overcome.

Arthur G.O. Mutambara

Zimbabwe’s Political Crisis Enters South Africa Domestic Politics

VOA

By Peter Clottey
Washington, D.C.
17 April 2008

The ongoing political crisis in Zimbabwe is reportedly causing ripples in
neighboring South Africa. This comes after South African President Thabo
Mbeki sharply differed with chairman of the ruling African National Congress
(ANC) Jacob Zuma over the crisis in Zimbabwe. Mbeki said there was no crisis
in Zimbabwe because of the elections controversy.

But Zuma reportedly said the political impasse over the elections was
causing increasing anxiety. The ANC youth wing apparently agrees with Zuma’s
comments, saying that President Mbeki does not speak on behalf of the ruling
ANC party. Zizi Kodwa is the spokesman for the ANC youth wing. He tells
reporter Peter Clottey from London, where he is attending a meeting, that it
behooves Zimbabweans to resolve the ongoing political impasse.

“Firstly, in the resolution of the Zimbabwean problem and challenges it
rests, among others, with the Zimbabweans themselves. We think that all
parties involved, both the ruling party and the opposition party, must come
together and appreciate the fact that indeed the country has reached a point
where everybody must cooperate for the good of the country. It is absolutely
not going to help now to point fingers and start accusing one another, who
is responsible for what. Indeed we need men and women who can rise above and
swallow their pride for the good of the country,” Kodwa pointed out.

He said all parties concerned in Zimbabwe must uphold the tenets of
democracy and respect the wishes of the people.

“Obviously, issues of democracy to an extend that they are respected and
upholding of the rule of law. It is critical for any democracy to succeed.
And the recent development is worrying to an extent that the expression of
the majority shall be subverted from the people by people who might appear,
but democratically they don’t accept the outcome because as it stands now.
It is likely to create instability in the whole region,” he said.

Kodwa said it is only the chairman and other elected officials of the ruling
ANC party who can speak on behalf of the party.

“In resolving the problem of Zimbabwe, Thabo Mbeki is not speaking on behalf
of the ANC. He is a mediator mandated by the regional body SADC (Southern
African Development Community). The ANC is a political liberation movement.
It is important to understand that. It has got its own voice, and Thabo
Mbeki does not speak on behalf of that organization. So there is no conflict
of expression about how the issue of Zimbabwe must be resolved,” Kodwa
noted.

He said there was a need for the presidential results of Zimbabwe’s election
to be released.

“First and foremost, after its elections, people would have expected that
the election results must be announced. We can’t be talking about a re-run
or run-off even before people would know how t hey voted. That is equal to
subversion of democracy and manipulation, even if people don’t agree with
the outcome, but they cannot be manipulated because of narrow political
interest. If the expression and the will of the people is against those who
are in power, let it be so. And I think everybody who had participated in a
democratic election would have expected to win or lose. It is not a
pre-determined outcome,” he noted.

Brown treats Zimbabwe like British colony - minister

Reuters

Thu 17 Apr 2008, 5:33 GMT

HARARE (Reuters) - Zimbabwe's justice minister accused British Prime
Minister Gordon Brown on Thursday of treating Zimbabwe like a British colony
and suggested London bribed election officials to oust President Robert
Mugabe.

Patrick Chinamasa also said that opposition leader Morgan Tsvangirai -- who
says he won a March 29 presidential election -- was committing treason by
working with Britain to prompt "regime change".

On Wednesday, Brown called on a summit of the U.N. Security Council and the
African Union to support democracy and human rights for Zimbabwe. "No one
thinks, having seen the results of polling stations, that President Mugabe
has won," he said.

Chinamasa said in a statement published by Zimbabwean state media that Brown
had spoken so strongly in order to promote British interests in Zimbabwe,
undermine Zimbabwe's electoral processes and mislead the international
community.

"We tell him (Brown) clearly and without ambiguity that we are not a colony
of the British," he said.

The Herald newspaper also quoted Chinamasa as saying that Tsvangirai's
declaration of victory in the election was part a British plot to
destabilise Zimbabwe. He urged the electoral authorities to find those
polling officials who he said were "corruptly paid British pounds to tamper
with the process".

"The unofficial results ... point to a run-off between President Mugabe and
Tsvangirai," he was quoted as saying.

The Herald newspaper also published details of what it said was a letter
from Brown to Tsvangirai assuring the MDC leader that Britain had lobbied
Southern African Development Community (SADC) members to convene an urgent
summit on Zimbabwe and that London would impose more sanctions on the
country.

There was no immediate comment on this from Tsvangirai's Movement for
Democratic Change (MDC) or from British officials.

Chinamasa was quoted as saying: "It is clear from the correspondence that
Tsvangirai along with Brown are seeking regime change in Zimbabwe, and on
the part of Tsvangirai, this is treasonous."

"There is no doubting the consequences for acting in a treasonous manner,"
Chinamasa said.

"The British are driving an agenda to put their puppet at the helm of this
country ... The people of Zimbabwe will not allow this country to be taken
over by a British surrogate."

African leaders’ attitude on elections must change

Zimbabwe Times
17 April 2008

By Tanonoka Joseph Whande

THERE is a crisis in Zimbabwe!

South Africa’s Thabo Mbeki is at the very end of his second and last term in
office. He has spent most of the past 10 years of his presidency engaged in
Zimbabwean issues because of the crisis that has been festering in that
country for a very long time.

He came up with the New Partnership for Africa’s Development (NEPAD) and set
standards, among which was good governance. But NEPAD folded three days ago
and Mbeki had to let go of a failure he created. The comedy continues,
though; NEPAD is now to be run by the African Union.

Several years ago, Mbeki introduced ‘quiet diplomacy’ on Zimbabwe as a way
of covering for Robert Mugabe’s excesses. Mbeki failed to bring sanity to
Zimbabwean politics. Last year, SADC rewarded Mbeki’s failure with another
mandate to resolve the Zimbabwean crisis. He accepted and, apparently, went
to work.

A few months later, the Movement for Democratic Change wrote to SADC
officially notifying the useless body that their emissary, Mbeki, had failed
to resolve the crisis and that the talks had long broken down.

Two weeks ago, the world was jolted to attention when newly crowned Botswana
President Ian Khama caused Zambia’s Levy Mwanawasa, the SADC Chairman, to
convene an extra-ordinary session to discuss the Zimbabwean crisis because,
according to President Khama, “we have a problem”.

Mwanawasa said the purpose of the extra-ordinary summit was “to discuss the
recent events in Zimbabwe following the elections in Zimbabwe in an open,
objective and honest manner.” In this regard, he said, SADC re-affirmed its
commitment “to assist the parties to deal with the current situation”.

In its communiqué, SADC itself said that the extra-ordinary summit was held
in line with “the SADC's objectives to promote common political values and
systems transmitted through institutions that are democratic, legitimate and
effective to facilitate the consolidation of democracy, peace, security and
stability.”

But SADC went on to imply, through its retrogressive and cowardly decision,
that Khama was wrong. According to SADC, Khama and the region have no
problem. According to Mbeki, Zimbabwe has no crisis.
Instead of censuring the culprit and encouraging crisis resolution in the
region, SADC stood by a murderous dictator at the expense of a young
president who wanted things corrected as a matter of urgency.

Mbeki, the perennial failure in mediation assignments, stood between fellow
presidents and the restoration of democracy in Zimbabwe.
Yet, not surprisingly, by the end of the summit, Mbeki accepted yet another
mandate to resolve the “crisis in Zimbabwe”.

After accepting to assist in resolving the Zimbabwean crisis three times,
Mbeki says there is no crisis in Zimbabwe. But everyone, including his own
ANC, knows that there is a crisis in Zimbabwe.

Zimbabweans voted peacefully and made their choice as the world and SADC
watched. Even the Summit “commended the people of Zimbabwe for their
peaceful and orderly manner in which they conducted themselves before,
during and after the elections.”
It is not in dispute that Mugabe lost the election. The ongoing shenanigans
are a clear testimony to serious irregularities yet SADC did not come down
hard on such bad behaviour.

Africa, it seems, is unable to resolve its own disputes.

Now, the body count has slowly started to build up because what SADC did is
to encourage the wrongdoer by not censuring him. Zimbabwe’s military chief
has ominously taken charge of Mugabe’s “campaign” and Mugabe’s militant
supporters have set up torture camps in the country.

SW Radio Africa reported: “Post-election reprisals against MDC activists
have spread to nearly every corner of the country, amid reports that the
cycle of attacks and retributions are being orchestrated by security
 forces.”

It went on to say that the violence had escalated dramatically as ruling
Zanu-PF party militias, “with the help of army units”, had intensified their
reprisal campaign in the rural areas.

It’s Kenya all over again because of wrong priorities, because of African
leaders’ reluctance to urge losing presidential candidates to vacate their
posts because of, in the case of Mbeki, malicious detachment and
indifference to the suffering of the people.

The people of Kenya are still stuck with a president who lost the election,
thanks to Kofi Annan.

After losing presidential elections and his parliamentary majority, Kibaki
refused to concede and, in the end, got a bigger piece of the cake than the
real winners. And now, thanks to Mbeki and SADC, Mugabe feels that whatever
Kibaki can do, he can do better.

SADC and Mbeki ditched decency and honesty; they should be smiling now
because they knew violence would arise from their confused way of thinking.

SADC and Mbeki let down the people of Zimbabweans and put people’s lives in
danger. SADC is going to be the first to seek donor funds to extinguish the
conflagration they themselves started. For how much longer can Zimbabweans
hold back their frustrations as they now believe that the world is
conspiring against them?

Because SADC and Mbeki are listening attentively to Mugabe like kids on the
first day of class, Mugabe rants and raves about a run-off election yet the
results that should determine such an exercise are being held back. Rather
than concede, Mugabe, with Mbeki’s conniving, refuses to release the results
of the final presidential vote count.

How do we know that it was Mugabe who came in second? Could it not have been
Simba Makoni? But most importantly, is there any need for a run-off
election? Are we sure the winner did not surpass the 50% mark, as
independent observers are saying?

Africa is setting time bombs for itself everywhere elections are held. Kenya
and Zimbabwe are to consecutive election disgraces that have set death traps
for unsuspecting, trusting African voters.

Mbeki has caused too much grief in the region.

“SADC leaders have a duty to ensure that what happened recently in Kenya,
when an Electoral Commission failed to conduct the polls and ultimately led
to untold bloodbaths, does not happen in Zimbabwe,” said the Sunday Standard
in its current editorial. “The situation in Zimbabwe has become tense and
increasingly volatile. Chances of Zimbabwe further slipping into a civil war
or a military coup are everyday becoming a reality. Yet many of the SADC
leaders, especially those who have a muscle strong enough to influence
events in that country, like South Africa, choose not to intervene.”

Calling Mbeki a “rogue democrat”, the Post said, “South Africa has defended
Iran's nuclear programme and resisted sanctions against it; shielded Sudan
and Burma from the sort of pressure the United Nations once directed at the
apartheid regime; and enthusiastically supported one-sided condemnations of
Israel by the U.N. Human Rights Council.”

Also in an editorial this past Tuesday, Botswana’s Mmegi questioned if Thabo
Mbeki is really still in touch with reality, saying that Mbeki has always
forced his discredited ‘quiet diplomacy’ approach on fellow SADC members
“with devastating effect”.

“Any sane person cannot help but agree with MDC leader, Morgan Tsvangirai,
that "unless, of course, they (Mbeki and friends) say the crisis should be
demonstrated by bodies on the streets." However, the way the situation
stands, there is no doubt that soon there will be a bloodbath in Zimbabwe.”

So what does this mean to the citizens of SADC who, as the Gazette said in
its current editorial, are probably saying to themselves, “Are we going to
be the next refugees and displaced persons when our leaders refuse to
relinquish power and punish those who have voted against them?”

SADC has denied Zimbabweans a chance to rebuild their nation. What is the
whole SADC block about anyway if they cannot recognize problems in their own
midst and act on them to protect the citizenry?

Yes, there is a crisis in Zimbabwe and if Zimbabwe erupts, Botswana, South
Africa and the region will pay a heavy price. They will be embroiled in it
and it will not be easy to manage.

President Ian Khama, however, should be applauded for trying.
There is a crisis in Zimbabwe.

(Tanonoka Joseph Whande is a Botswana-based Zimbabwean journalist.)

Speak up now Nelson

The Mirror. UK

Brian Reade   17/04/2008
Amid the global outrage at Robert Mugabe changing Zimbabwe's national anthem
to his own mobile phone ringtone: "I'm the king of the castle, get down you
dirty rascals," there is a disturbing silence.
And I don't understand it. Who is the greatest living freedom fighter? The
one African who has earned worldwide respect for challenging organised evil?

Who spent his life opposing a regime which played the race card to keep a
people in chains? Nelson Mandela.

Mugabe has betrayed everything Mandela fought and stands for. He has
overwhelmingly brutalised, tortured and slaughtered the black people of
Zimbabwe to cling to power, and now he denies them their democratic right to
express their will.

Advertisement

If Desmond Tutu's brave condemnation of Mugabe shames the cowardly inaction
of South African president Thabo Mbeki, how much does Mandela's silence
taint his own legacy?

In July the world will celebrate the 90th birthday of the world's premier
citizen. There are plans for a London concert to mark the life of a man who
freed his people.

What a ser vice he would do mankind if he ditched any misguided loyalty to
Mugabe and demanded a Free Zimbabwe campaign .

It would be the last courageous act of the greatest man we've seen in our
lifetime. And it needs to be done .

I'll get the T-shirts, Nelson - you book Madonna. Let's rock.

FACTBOX: Zimbabwe's economy in freefall

Reuters

Wed Apr 16, 2008 9:30pm EDT
(Reuters) - Inflation in Zimbabwe, already the world's highest, soared to
164,900 percent year-on-year in February, the Central Statistics Office
(CSO) said on Wednesday.

Here are some details on Zimbabwe's inflation milestones and government
efforts to control it.

INFLATION'S RISE

-- Zimbabwe's annual inflation rose above 1,000 percent in April 2006.
Official statistics showed the annual inflation rate at a record 1,042.9
percent after rising 913.6 percent in March.

-- Annualized inflation stood at 3,713.9 percent in April 2007, a monthly
rate of increase of 100.7 percent, according to official government data.

-- Inflation slowed in August to 6,592.8 percent from 7,634.8 in July after
a price freeze was instituted, but leapt to a record 7,982.1 percent in
September.

-- The December 2007 figure had risen to 66,212.3 percent, and by January
2008 it hit 100,586 percent but economic experts said the actual figure was
higher.

-- April 2008, the Central Statistics Office reported that for the month of
February 2008, the figure stood at 164,900.3 percent.

REACTION

-- When inflation hit 1,000 in 2006, Zimbabwe was in its eighth year of
recession and had the fastest shrinking economy outside a war zone,
according to the World Bank. It also had the highest inflation rate in the
world.

-- Some shops began leaving prices off commodities, saving themselves the
trouble of changing them every day. With a carton of orange juice then
costing 500,000 Zimbabwe dollars (US $5) and 1 kg of beef up to Z$1 million,
people carried money in large bags even for simple shopping trips.

-- The Reserve Bank of Zimbabwe (RBZ) ordered redenominated notes in July
2006 to combat black marketeering and hyperinflation, lopping three zeros
off the local dollar.

-- The government instituted a price freeze in June 2007, followed two
months later by wage freeze to try to tame inflation.

-- Zimbabwe's central bank introduced new higher value banknotes earlier in
2008 which, however, failed to ease a cash shortage that has kept commercial
banks busy with long queues of desperate residents wanting to withdraw
money.

HOW BAD CAN IT GET?

-- Drought in several Zimbabwean provinces is likely to damage the main 2008
maize harvest and could worsen an already tight food situation, the United
Nations' food agency said.

-- The agency said on top of floods and drought, farmers have suffered from
shortages of key inputs, including fertilizer, seed, fuel and tillage power
this season.

(Writing by David Cutler, London Editorial Reference Unit; editing by Mary
Gabriel)

Lonrho to take the plunge in Zimbabwe

Business Report

April 17, 2008 Edition 1

Audrey D'Angelo Cape Town

Lonrho, unlike some South African companies, is stepping up investments in
Zimbabwe rather than waiting until the political situation is resolved.

LonZim - the company Lonrho has formed to develop business opportunities in
Zimbabwe - plans to make the country a centre for an Africa-wide
communications system "aimed at making financial transactions possible for
the massive unbanked sector of Africa".

LonZim chief executive Geoffrey White said Zimbabwe's economic fundamentals
remained strong. The country had an educated workforce and a good
infrastructure.

Lonrho is buying an option to acquire a 51 percent stake in ForgetMeNot
Africa (FMN Africa), a subsidiary of Hong Kong-based software company
ForgetMeNot, which specialises in two-way global messaging across Africa.

The consideration of US$150 000 (R1.2 million) paid for the option will be
used by FMN to introduce its message optimiser system to two large corporate
customers in Zimbabwe.

LonZim has the option to acquire control of FMN Africa for a further US$400
000. It will pay a further $1 million on December 30 for an exclusive
licence to use FMN's message optimiser technology across Africa.

White said the system could operate from cellphones or computers, and could
be used for transactions such as credit, bill payment and transfers.

When the time arrives for Zimbabwe to start over

Business Day

17 April 2008

Max du Plessis and Jo Ford

WHAT lessons about justice and accounting for the past can Zim-babweans
learn from other transitional societies? Where “forgive and forget” seems
unlikely, is there a case for a deliberative formal national process of
remembering, dwelling, telling, uncovering, admitting, accusing,
apologising? In going forward, to what extent should Zimbabweans be
concerned with looking back?

The Mugabe regime is certainly not yet history. But only the pessimists
would deny some foreseeable future transitional arrangement. How might
Zimbabweans then deal with past systematic and widespread human rights
abuses?

Experience in SA, and in places such as Chile, Argentina, El Salvador,
Timor-Leste , Cambodia and Sierra Leone, shows three main ways to address
past wrongs: criminal trials, truth-for-amnesty commissions, and a mix of
these.

Others’ experience prompts a range of difficult initial questions for
Zimbabwe: in any interim phase, how will negotiations on “transitional
justice” persuade the powerful and prosecutable that it is safe to
co-operate? How do we balance the need for “restorative justice” with solemn
principles pointing to criminal trials and “retributive justice”?

With the economy in free fall, what priority of resources and national
attention should a backward-looking process have? How far back does “the
past” really go? Is there a role for outsiders and if not, who in Zimbabwe
would have the moral authority to guide any process?

A great deal would be at stake. Prosecutions alone, even if politically
possible, do not necessarily achieve reconciliation or reduce tension. A
truth commission in a new Zimbabwe might be cathartic and promote
reconciliation, lifting the lid on human rights abuses, ending denial,
allowing victims to tell their stories and reclaim their dignity: a national
healing process. On the other hand, done poorly a commission could squander
precious time, money and perhaps a once-only opportunity. It could itself
become a focus of renewed conflict, or antagonise influential persons upon
whose co-operation national unity depends, or focus only on small fry,
leaving big fish to swim free.

Every country situation is unique but lessons from elsewhere abound: we
should not recognise any eventual Zimbabwean institution that is not
independent or credible. The process of commission member selection, their
stature and impartiality, are vital.

International tribunals often lack local awareness and legitimacy: a hybrid
model would be ideal (some African nationals should be among any
international staff). The institution must be adequately resourced. It needs
to give incentives to people to co-operate, but must not rule out criminal
prosecutions. It must have a realistic mandate, allowing it to initiate
investigations as well as receive complaints. Victims must have a central
role. It may have an educational mandate. It should start its work soon
after any transition (although a drawn-out design process can increase
public awareness and legitimacy). It could wind up after two to three years,
or be a permanent body with a gradually narrowing mandate that ultimately
runs as a self-funding museum.

Very public hearings and broadcasts are preferable: this increases public
appreciation of such commissions’ work and prevents continued denial by
sectors of society. Public hearings shift the focus from a mere product (a
report), to the process itself. The commission may make important reform
recommendations. Other, community-level, processes need to also run in
parallel: a national conversation about the past, but in the language of the
future. Finally, a report needs to be made public, and publicly digestible:
it needs to attempt “closure” while not artificially cutting off debate.

Amnesty from prosecution is often the main incentive for revealing the
truth. Any Zimbabwean commission ought to be given such power, avoiding
blanket amnesties (amnesty for international crimes such as torture could
not be contemplated). As with the Timor-Leste model, amnesties could
co-exist with prosecutions for the worst offences; that is, the process
facilitates community reintegration of low-level perpetrators (often with
some visible act of remorse, contrition or reparation), while not precluding
trials of those responsible for serious abuses. In Solomon Islands, by
contrast, the preference was to strengthen courts and pursue prosecutions,
leaving reconciliation mechanisms to informal, church-based and community
processes. The idea of a formal truth and reconciliation commission was
thought to send mixed messages about future responsibility for ethnic
violence.

Particular difficulties apply in Zimbabwe. How would such a process deal, if
at all, with land claims? Should any commission deal with abuse allegations
arising from Mugabe’s 1980s Gukurahundi campaign in Matabeleland, or should
it restrict itself to the period after 2000? Findings of an official 1985
inquiry into Matabeleland were never published, though the 1997 Breaking the
Silence, Building True Peace report by a Catholic Church body suggests
serious matters to resolve. What is the status in law of the official
blanket amnesty given by Mugabe in October 2000? What about calls for
international prosecutions? Matters are complicated by the fact that
Zimbabwe is not party to the International Criminal Court, and the United
Nations Security Council is unlikely to refer any matter for prosecution.

South Africans understand that deep wounds need to be cleaned and aired, not
simply bound up: out of sight is not out of collective mind. It is often
overlooked that in 1980 Zimbabweans — led by Mugabe’s example — were seen as
paragons of national reconciliation. Perhaps when a new dawn comes to
Zimbabweans, they may rediscover the balance between forward momentum and
adequate pause on past injustices. For many victims, no new truth will
emerge: but formal acknowledgment of their truth can be vital in the shared
healing process. If the cost of remembering is pain, the price of not
confronting and institutionalising the memories can be cycles of distrust
and shaky foundations: a future condemned to repeat, and always held ransom
to, the unresolved past.

Du Plessis is an associate professor of law at the University of
KwaZulu-Natal and a senior research associate at the Institute for Security
Studies. Ford is with the Centre for International Governance & Justice at
the Australian National University.

Court Judgement in Full

http://www.saflii.org/zw/cases/ZWHHC/2008/1.html

Zimbabwe: Harare High Court
Movement for Democratic Change and Another v Chairperson of the Zimbabwe
Electoral Commission and Others (E/P 24/08) [2008] ZWHHC 1 (14 April 2008)

MOVEMENT FOR DEMOCRATIC CHANGE AND

MORGAN TSVANGIRAI VERSUS

THE CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION AND

THE CHIEF ELECTIONS OFFICER ZIMBABWE ELECTORAL COMMISSION m

HIGH COURT OF ZIMBABWE UCHENA J

HARARE 5, 6, 7, 8, 9 AND 14 APRIL 2008.

HH —/08

E/P 24/08

URGENT CHAMBER APPLICATION

Mr A Muchadehama, for the Applicant's.

Mr G Chikumbirike, for the Respondents.

Uchena J. The 1st applicant the Movement For Democratic Change is a
political party, commonly known as the (MDC). It will be referred to as the
1st applicant. The second applicant Mr Morgan Tsvangirai is its president.
He was the 1st applicant's presidential candidate in the just ended
harmonized elections held on the 29th March 2008. He will be referred to as
the 2nd applicant.

The 1st respondent is the Chairman of the Zimbabwe Electoral Commission, a
Commission created in terms of section 61 (1) of the Constitution of
Zimbabwe. He was appointed in terms of section 61 (1) (a) of the
Constitution. He will be referred to as the 1st respondent. The Commission
is commonly known as (ZEC), in reference to the abbreviation of its name. I
will refer to it by its abbreviation in this judgment. The second respondent
is (ZEC'S) chief elections officer appointed in terms of section 11 of the
Zimbabwe Electoral Commission Act (Chapter 12; 12), hereinafter called the
Zimbabwe Electoral Commission Act. He will be referred to as the 2nd
respondent.

The Facts

The 1st respondent through (ZEC), conducted harmonised elections which were
held on 29 March 2008. The elections were contested by candidates aspiring
for the following positions, councilors of local authorities, members of the
House of Assembly and the Senate, and President of the Republic of Zimbabwe.
It is common cause that the contestants of the first three positions now
know the results of their elections. The results were announced at the Ward
Constituency, House of Assembly and Senatorial constituency levels. The
winners were declared by the respective Ward and Constituency Elections
officers. House of Assembly and Senatorial results have also been announced
by the National Collation Centre presided over by the 2nd respondent. It is
conceded by the respondents that this was merely for the benefit of the
general public as the legal requirements had been satisfied at constituency
level.

The applicants who have an interest in the presidential elections, in which
they were participants, filed an urgent application seeking this court's
provisional order, compelling the respondents to announce the results.

The respondents while conceding that presidential results have not yet been
announced contented that they will announce them when they are ready. They
contented, in, limine that, they are not subject to the jurisdiction of this
court.

After the court's ruling on the issue of jurisdiction Mr Muchadehama for the
applicants submitted that the application was urgent and outlined the facts
establishing the urgency. In his response, Mr Chikumbirike, for the
respondents, submitted that the application is not urgent, and should have
been brought by way of ordinary application.

Jurisdiction

On the 6th April 2008, before the hearing of this case on the merits Mr
Chikumbirike for the respondents submitted that this court did not have
jurisdiction to hear the applicant's application. He relied on the
provisions of section 61 (5) of the Constitution which provides as follows;

(5) "The Zimbabwe Electoral Commission shall not, in the exercise of its
functions in terms of subsection (4), be subject to the direction or control
of any person or authority."

The relevant provisions of subsection (4) to this application are found in
subsection (4) (1) (a) which reads;

(4) "The Zimbabwe Electoral Commission shall have the following functions-

(a) to prepare for, conduct and supervise—

i. elections to the office of President and to Parliament; and

ii. elections to the governing bodies of local authorities; and

iii. referendums;

and to ensure that those elections and referendums are conducted
efficiently, freely, fairly, transparently and in accordance with the law;"

Mr Chikumbirike said this court has no jurisdiction to hear the applicant's
complaint, and should therefore dismiss the application with costs.

Mr Muchadehama for the applicants submitted that the respondents can be sued
and that is why section 18 of the Zimbabwe Electoral Commission Act provides
for the citing of the 1st respondent, as a nominal citee. He further
submitted that the court has jurisdiction to inquire into any complaint
against the Zimbabwe Electoral Commission provided that it observes (ZEC'S)
independence if it is complying with the provisions of the law. He further
submitted that this court can intervene if the respondents stray from the
provisions of the law. I agree with Mr Muchadehama's submissions as it could
never have been intended by the legislature, that (ZEC) could conduct itself
outside the provisions of the law including the provisions of section (4) of
the Constitution itself, and still remain outside the jurisdiction of this
court.

The clear intention of the Legislature in Section 61 (5) of the Constitution
was to ensure (ZEC'S) independence provided it was operating within the law.
It has to exercise its functions as provided by subsection (4) for it to
enjoy that immunity. It can not for example conduct elections unfairly,
outside the law, and which are not free and fair, but on being sued insist
that the courts have no jurisdiction over it. The court would in such
circumstances have jurisdiction to hear and determine complaints against
(ZEC).

It was for these reasons that I ruled that this court has jurisdiction to
hear the applicant's application.

Urgency

After the ruling on the issue of jurisdiction, Mr Muchadehama made
submissions on the urgency of the application. He told the court that
section 110 (3) of the Electoral Act (Chapter 12; 13) hereinafter called the
Electoral Act, provides, for a re-run within 21 days after the previous
election in the event of no candidate obtaining a clear majority in the
election. This he submitted means a delay in announcing the election results
will deprive candidates of sufficient time to prepare for the re-run. He
also pointed out that the respondents would not have enough time to prepare
for the re-run.

Mr Chikumbirike for the applicants said there was no urgency in the
applicant's application because its cause of action was based on the
announcement of the results of the presidential poll. He argued, that those
results where not due, as the provisions of the second schedule have not yet
been complied with. He therefore reasoned that the cause of action would
arise when the provisions of the second schedule of the Electoral Act would
have been complied with. He summed up by saying the applicant's cause of
action as stated in Tendai Biti's founding affidavit has not yet arisen
hence the absence of urgency in the application.

Mr Muchadehama in response disputed Mr Chikumbirike's submission that the
cause of action had not yet risen. He pointed out that Tendai Biti's
affidavit complaints of delays and the respondent's wasting time on already
declared election results instead of doing what they are mandated to do,
that is the collation and verification of presidential results and their
announcement.

A reading of Tendai Biti's founding affidavit confirms that though he in
some paragraphs emphasised the announcement of results he clearly brought
out a case against the general delay. That was in fact the theme of the
applicant's complaint in paragraphs 5, 11,12,13, 14,16,17, 24,26 and 27.1 am
therefore satisfied that the applicant's application is premised on delays
and the respondents' wasting time doing everything else other than what they
should have been doing. Therefore the cause of action has arisen though the
wording of the provisional draft order seeks the announcement of results
within 4 hours of the service of it on the respondents. This can be
corrected by a variation in terms of rule 246 (2) of the High Court Rules
1971 which provides as follows;-

(2) "Where in an application for a provisional order, the judge is satisfied
that the papers establish a prima facie case he shall grant a provisional
order either in terms of the draft filed or as varied."

This means an application for a provisional order which has been prima facie
proved can not be dismissed because of a poorly drafted order. The court can
vary it and grant a correctly formulated provisional order consistent with
the prima facie case proved. In fact on being granted the order becomes the
court's order so it must formulate it in a satisfactory manner before
granting it.

I therefore found that the application was urgent and proceeded to hear it
on the merits.

Procedural Issues

In response to Mr Muchadehama's submissions on the merits, Mr Chikumbirike
for the respondents raised several procedural issues which he should have
raised as preliminary issues. He in his first procedural issue contented
that the applicant's application was not made in the correct form. Mr
Muchadehama for the applicants in reply submitted that the applicant's
application was made in the correct form and that even if it was not in the
correct form, Rule 229C provides that such failure shall not in itself be a
ground for dismissing the application. The court can however dismiss such an
application, if it has caused prejudice to the other party which can not be
cured by directions for service of the application on the other party with
or without an order of costs. An examination of the applicant's application
reveals that it is in form 29B when it should be in form 29 with relevant
modifications as provided by the proviso to rule 241 (2). The applicants
have however, not suffered any prejudice. They were served with the
application and they took no issue until during their Counsel's response on
the merits.Even though the issue was raised no prejudice was alleged. I am
satisfied that nothing turns on this as either rule 229C or rule 4C could be
resorted to, to condone the application's failure to strictly comply with
the proviso to rule 241 (2).

In his second procedural issue Mr Chikumbirike raised the issue of the
applicants not having filed an answering affidavit. He submitted that, that
means the applicants have accepted the respondent's averments in the
opposing affidavit. Mr Muchadehama's response was that most of the issues
had already been put in contention by the applicant's founding affidavit
deposed to by Tendai Biti. That may be so in respect of the delay and
aspects related to it. It is however not correct in respect of the reason
for the delay averred to in Justice Chiweshe's opposing affidavit Justice
Chiweshe said the delay is due to (ZEC) having received complaints about
miscounting and is considering the evidence for it to decide whether or not
to order a recount of the presidential votes before announcing the results.
The failure to file an answering affidavit disputing that fact means the
fact that complains have been received is not in dispute. However the
legality of the recount can still be challenged as it is a matter of law.

Mr Chikumbirike in his third procedural issue raised the issue of the second
applicant not having filed any affidavit. He submitted that he should have
filed a founding affidavit or at least a supporting affidavit verifying the
averments made on his behalf by the 1st applicant's deponent. Mr
Muchadehama's response was to the effect that the averment by Tendai Biti
that he was authorized to depose to the founding affidavit by the second
applicant, is sufficient. Mr Muchadehama relied on rule 227 (4) (a) which
provides as follows-

(4) "An affidavit filed with a written application -

(a) shall be made by the applicant or respondent, as the case may be, or by
a person who can swear to the facts or averments set out in therein" There
is no dispute that Tendai Biti is the Secretary General of the 1st applicant
and can swear positively to issues involving the 1st and 2nd applicants as
regards events which took place in connection with the announcement of
presidential results. The issues in this case are purely party maters and
the 2nd applicant being the 1st applicant's presidential candidate is merely
joined not because he has issues for which he has separate and distinct
information which the 1st applicant's Secretary General is not privy to. I
would therefore find that nothing turns on this issue. The affidavit filed
by Tendai Biti satisfies the requirements of rule 227 (4).

Mr Chikumbirike in his fourth procedural issue raised the issue of paragraph
(1) of the draft provisional order seeking the same relief as that sought in
paragraph (1) of the final order. Mr Muchadehama conceded that point and
sought a variation of the provisional order so that it does not seek the
same relief as that in the final order. This issue has already been dealt
with in my ruling on the issue of urgency.

Mr Chikumbirike's final procedural issue was on what he alleged was an
improper joinder of the 1st and 2nd respondents. He submitted that the 1st
respondent plays no roll in the processing and announcement of presidential
results, and should therefore not have been joined with the 2nd respondent
in these proceedings. Mr Muchadehama in his reply correctly submitted that
the 1st respondent was correctly cited in his nominal capacity as the
Chairman of (ZEC). Section 18 of the Zimbabwe Electoral Commission Act
provides for his being a nominal citee, just as the Minister of Home Affairs
would be cited together with a Constable who would have committed a delict
during the course of his duties. I find no merit in Mr Chikumbirike's
submission on this issue, especially in view _ of Justice Chiweshe's
concession that there was no issue on the citation of the parties. The
applicant in his opposing affidavit said the Commision received complaints
about miscounting of the presidential votes which it is considering with a
view to ordering a recount before those results are announced. This clearly
confirms the importance of citing the 1st respondent as a party as it is the
commission which is considering the complaints.

The second respondent can not deal with that issue, and can not process the
presidential results until that issue is resolved. The 1st respondent has
therefore been correctly cited as a party in these proceedings.

The Merits

On the merits the applicants, contented through Tendai Biti's founding
affidavit dated the 3rd April 2008, that there has been an unreasonable
delay in the processing and announcement of presidential results. They
submitted that the harmonised elections having been held on the 29th March
2008, the results for the presidential poll should have been announced. They
accused the respondents of employing delaying tactics by announcing the
already declared results for the House of Assembly and the Senate. They
submitted that the respondents were thereby avoiding their primary
responsibility. They explained the procedure which should have been followed
and said it should not have taken long to collate, verify and announce the
results. They submitted that the procedure to be followed signifies the
Legislature's intention that the results of the poll must be processed and
be announced without any undue delays.

On the main issue of delays Mr Chikumbirike for the respondents submitted
that, the respondents had not strayed from what the electoral laws require
them to do. They can therefore, not be compelled to release the results when
they were operating within the law. He said there was no provision in the
Electoral Act requiring the respondents to collate, verify and announce the
results in a specified period. He therefore argued the respondents were
entitled to act at their own discretion, but in terms of the electoral laws.

Provisions of the electoral laws and their interpretation

The question of whether or not the respondents are operating within the law
can only be determined after an analysis of the provisions of sections of
the Electoral Act which deal with the transmission of presidential results
from polling stations through constituency centres to the Chief Elections
Officer.

Section 64 (2) of the Electoral Act provides for the transmission of the
polling station return as follows;

(2) "Immediately after affixing a polling station return on the outside of
the polling station in terms of subsection (1) (e), the presiding officer
shall personally transmit to the constituency elections officer for the
constituency to which the polling station belongs-

(a)

(b) the poling-station return certified by himself or herself to be correct:
Provided that if, by reason of death, injury or illness, the presiding
officer is unable personally to transmit the ballot box, packets, statement
and polling station return under this subsection, a polling officer who was
on duty at the polling station shall personally transmit these"

It is clear from the provisions of this section that poling station-returns
and other election results material must be urgently and under the personal
care of the presiding officer be send to the constituency elections officer.
Even the death, injury or illness of the presiding officer is not allowed to
delay the transmission of the polling station-returns and other election
result materials to the constituency elections officer. The presidential
polling station-return is part of the material to be urgently transmitted.

The Second Schedule to the Electoral Act in paragraph 1 (1) and (2) provides
for the further handling and transmission of presidential results. It
provides-

(1) "After the number of votes received by each candidate as shown in each
polling -station return has been added together in terms of subparagraph (i)
of subsection (3) of section sixty-five and the resulting figure added to
the number of postal votes received by each candidate, the constituency
elections officer shall forthwith-

  1.. record on the constituency return the votes obtained by each candidate
and the number of rejected ballot papers in such a manner that the results
of the count for each polling station are shown on the return;

  2.. display the completed constituency return to those present and afford
each candidate or his or her election agent the opportunity to subscribe
their signature thereto; and

  3.. transmit to the Chief Elections Officer by hand through a messenger
the constituency return or a copy thereof certified by the constituency
elections officer to be correct.

(2) Immediately after arranging for the constituency return to be
transmitted in terms of paragraph ( c) of subparagraph (1), the constituency
elections officer shall affix a copy of the constituency return on the
outside of the constituency centre so that it is visible to the public." The
provisions of paragraph 1 of the second schedule clearly express the urgency
with which the constituency return has to be transmitted to the (second
respondent) the Chief Elections Officer. A reading of subparagraph (1) ( c)
and subparagraph (2) reveals the urgency through the use of the word
"immediately" and the fact that the affixing of the constituency return
outside the constituency centre can only be attended to after the
Constituency Elections officer has arranged for the transmission of the
constituency return to the Chief Elections officer.

The question that has to be answered is why should these returns be
hurriedly transmitted from polling stations and constituency centres, if the
legislature did not expect the Chief Elections Officer to equally attend to
them without delay? The inquiry must be taken to the next and subsequent
stages of the process.

Paragraph 2 (1) of the second schedule provides-

(1) "The Chief Elections Officer shall give reasonable notice in writing to
each candidate or his or her chief election agent of the time and place
where the Chief Elections Officer will verify and collate all the
constituency returns" Mr Chikumbirike seems to rely on this paragraph for
the absolute discretion he claims for the respondents. It is true no time
within which the noticeshall be given is specified, but

does it mean the 2" respondent was intended to take whatever time he deemed
necessary before inviting the candidates for the collation and verification
of the constituency returns. An analysis of paragraph 2(1) seems to reveal
that the apparent relaxation of the urgency previously insisted on in the
preceding sections and paragraphs could be for the benefit of the invitees.
The Chief Elections Officer must await their arrival before the collation
and verification starts. Even if that was the intention of the legislature
he could have been required to invite them forth with or immediately. It
must be noted that these returns will be transmitted by hand from all
constituencies scattered through out the country. They are transmitted by
hand. The distance between each constituency centre and the National
Collation Centre determines the arrival of each return. The legislature
could in those circumstances have provided for urgency soon after the
receipt of the last return. The fact that it did not leaves its intention
unclear. However in the construction of statutes the intention of the
legislature can be ascertained from the context within which the provision
in question is found. This part of the second schedule should therefore be
construed in conformity with the whole schedule and other provisions of the
Electoral Act. The inquiry must therefore move on the remaining provisions
under paragraph 2.

Paragraph 2 (2) and (3) provides as follows-

  2.. "At the time and place notified for the verification and collation of
the constituency returns referred to in subparagraph (1) and in the presence
of such candidates, their chief elections agents and observers as are
present, the Chief Elections Officer shall display each constituency return
to those present and shall, on request, allow a candidate or chief election
agent of a candidate to make notes of the contents of each constituency
return."

  3..
This paragraph establishes that at the time notified the collation and
verification should start and continue irrespective of the absence of other
candidates. The words "as are present" are instructive. The urgency which
seems to have been abandoned in subparagraph (1) seems to have been resumed.
In paragraph 2 (3) the legislature provided-

(3) "When the Chief Elections Officer has completed the verification of the
constituency returns under subparagraph (2) the Chief Elections Officer
shall, in the presence of such persons referred to in subparagraph (2) as
are present, add together the number of votes received by each candidate as
shown in each constituency return."

This means once the invitees referred to in subparagraph (1) arrive
verification and collation shall continue in their presence. We move on to
paragraph 3 (1) which provides-

3(1) "Subject to subparagraph (2), after the number of votes received by
each candidate as shown in each constituency return has been added together
in terms of subparagraph (3) of paragraph 2, the Chief Elections Officer
shall forthwith declare the candidate who has received (the qualifying votes
in terms of (a) and (b))

To be duly elected as President of the Republic of Zimbabwe with effect from
the

day of that declaration." This means once the verification and collation
starts it continues until the winning candidate is forthwith declared the
president of Zimbabwe if the result produces a winner with a majority of the
votes caste. This clearly proves urgency is resumed from the time the
invitees come till the declaration of the winner. This means from the
transmission of the polling and constituency returns the legislature
intended that officials must urgently forward returns to the Chief Elections
Officer who must from the arrival of invited candidates or their agents
urgently collate and verify and declare the result of the presidential poll.

Mr Muchadehama submitted that section 110 (3) of the Electoral Act must be
factored in, in ascertaining the legislature's intention on whether or not
the respondents were intended to act with urgency. The section provides as
follows-

"Where two or more candidates for President are nominated, and after a poll
taken in terms of subsection (2) no candidate receives a majority of the
total votes cast, a second election shall be held within twenty-one days
after the previous election in accordance with this Act." He further
submitted that the possibility of a second election within twenty-one days
is consistent with the urgency expressed in the sections and paragraphs
already discussed above. He said the time for the second election is fast
approaching and according to his calculation the second election must be
held on the 19th April 2008. He submitted that the legislature being aware
of the possibility of a re-run could not have intended paragraph 2 (1) of
the second schedule to give the 2nd respondent a wide discretion as to when
he should collate and verify constituency returns. The limited period
between the first and second election suggests that the first election's
results must be processed with urgency to avoid prejudicing candidates who
will be contesting the second election. The processing of presidential
results must in my view be given priority when compared to the announcement
by the National Collation Centre of other elections which have no
possibility of a re-run. I am therefore satisfied that the legislature
intended that presidential election results should be processed without any
undue delay.

It is however not in dispute that the legislature did not specify the period
within which presidential results should be collated, verified and
announced. Mr Muchadehama said it must be within a reasonable time and
relied on the provisions of section 3 (1) (b) of the Administrative Justice
Act (Chapter 10; 28), hereinafter called the Administrative Justice Act. It
provides as follows-

(1) "An administrative authority which has the responsibility or power to
take any

administrative action which may affect the rights, interests or legitimate

expectations of any person shall-

  4.. act lawfully, reasonably and in a fair manner; and

  5.. act within the relevant period specified by law or, if there is no
such specified period, within a reasonable period after being requested to
take the action by the person concerned."

Mr Chikumbirike for the respondents contented that the Administrative
Justice Act does - not apply to the respondents as the Commission is not an
administrative authority. Mr Muchadehama contented that it is and relied on
its being created in terms of section 3 of the Zimbabwe Electoral Commission
Act. Mr Chikumbirike submitted that section 3 of the Zimbabwe Electoral
Commission Act has since been repealed and substituted. He is correct the
provision which created the Commission was repealed and was substituted by
one which provides for the procedure it shall follow and how it shall
perform its functions. The Commission as it now stands was established in
terms of section 61 (1) of the Constitution. Mr Muchadehama countered that
in any event the 2nd respondent remains within the meaning of "an
administrative authority" as defined by section 2 of the Administrative
Justice Act, as he is authorized by "an enactment to exercise or perform any
administrative power or duty". I agree with Mr Muchadehama's submission as
the Chief Elections Officer is employed by (ZEC) in terms of section 11 of
the Zimbabwe Electoral Commission Act, and his duties and functions are
specified in that section. The remaining issue on that aspect is whether the
establishment of (ZEC) by the Constitution excludes it from the definition
of an administrative authority.

Mr Muchadehama further submitted that (ZEC) remains an "administrative
authority" by virtue of the provisions of Parts I and II of the schedule to
the Administrative Justice Act. Mr Chikumbirike submitted that, that is not
the correct way of determining whether or not (ZEC) is an admimstrative
authority. Mr Muchadehama's submission is premised on the fact that (ZEC) is
not mentioned among the administrative authorities for which, the
application of the Administrative Justice Act is limited or excluded. It is
true that (ZEC) is not mentioned in Parts I and II of the Schedule, but the
limitation and exclusion must only apply to those who fall under the
definition of "administrative authority". Those who do not fall within the
definition need no limitation or exclusion from the application of the Act
as they are already not affected by its application. I would therefore agree
with Mr Chikumbirike that the fact that (ZEC) was not mentioned in Parts I
and II does not assist in the determination of whether or not it is an
"administrative authority."

Mr Muchadehama sought to establish the validity of the applicant's claim
that (ZEC) had acted outside the law by proving that it as an administrative
authority had not announced the presidential results within a reasonable
time. In my view the conduct of (ZEC) should be measured against section 61
(4) (a) of the Constitution which provides as follows-

"The Zimbabwe Electoral Commission shall have the following functions-

(a) to prepare for, conduct and supervise-

I. elections to the office of President and to Parliament;

II. elections to the governing bodies of local authorities

III. referendums;

and to ensure that those elections and referendums are conducted
efficiently, freely, fairly, transparently and in accordance with the law;"

The standard set by the legislature in the Constitution is for (ZEC) to
perform any function required of it by the legislature through the
Constitution, the Electoral Act or the Zimbabwe Electoral Commission Act,
efficiently, freely, fairly, transparently and in accordance with the law.
The use of the word efficiency when construed in conformity with the urgency
provided for in the Electoral Act means (ZEC) must act accurately and
timeously.

In this case the question to be answered is did the respondents act
efficiently, fairly, transparently and in accordance with the law towards
the collation, verification and announcement of presidential results. If
they did so that should be the end of the inquiry. If they did not the
failure must be identified then this court can intervene and order
compliance.

When the above criteria is applied to the facts of this case and the law as
provided in the Electoral Act the applicant's allegations that there was
delay seems to be justified by the legislature's intention that the election
results must be processed without undue delay. This intention is revealed
through the provisions which provide for the transmission of polling
station-returns and constituency returns to the Chief Elections Officer, and
how he should conduct the collation, verification and declare the winning
candidate. In the absence of an explanation the delay between the 29th March
2008 and the 4th April 2008 seems to be unjustified and points to a lack of
efficiency. The period between the holding of the elections and the date of
application is six days. Three other elections involving greater numbers of
candidates were processed and finalized at their levels within two days of
the date of the elections. The work to be done by the Chief Elections
Officer is made simpler by the counting and collation done at polling
stations and constituency levels. All he has to do is to verify and display
the constituency returns and add the figures thereon to identify the winning
candidate whom he should forthwith declare the President of Zimbabwe. This
task should all things being equal not have taken the 2nd respondent up to
the 4th April 2008 to announce the presidential results.

The explanation

The respondents explained the delay through Justice George Chiweshe's
opposing affidavit. In paragraph 18 of his opposing affidavit he said-

"In response to the letter of the 2nd April 2008 Annexure "B" I had prior to
receiving the application, which was served on me last night, prepared a
press statement, which I intended to release, not only to inform the
applicants of the Commission's position on these issues, but to the country
and world at large. I attach a copy of the statement and request this
Honourable Court to incorporate it as part of this affidavit. The statement
relates extensively and accurately to the correct legal position. This
statement is annexed as Annexure "C"."

On page 2 to3 of Annexure "C" he explained that (ZEC) had received several
complains in terms of section 67 A of the Electoral Act..

At page 2 of Annexure "C" he said "In this process, sight must not be lost
of the provisions of section 67A of the Electoral Act (Electoral Laws
Amendment Act No 17/07) which provides as follows:

"Within 48 hours after a constituency elections officer has declared a
candidate to be duly elected in terms of section 66 (1), any political party
or candidate that contested the election in the ward or constituency
concerned may request the Commission to conduct a recount of votes in one or
more of the polling stations in the ward or constituency."

This is a right accorded to a candidate or a political party that contested
an election for either of the house of Assembly. The same is also applicable
to a presidential candidate, by virtue of the provisions of part xviii, in
section 112, which imports part xiii of the Electoral Act (where section 67A
is found). For the avoidance of doubt, I relate to this section below:

"Subject to this Part, the provisions of Parts XIII, (other than Sections
sixty-six, ' sixty-seven, and six-eight, for which the provisions of the
Second Schedule are substituted), XIV, and XV, shall apply, with any changes
that may be necessary, to an election to the office of President".

After explaining the effect of a miscounting even by one vote could have on
a presidential election, Justice Chiweshe concluded on page 3-4 by saying-

"The Commission, it must be put on record, has received several complaints
in terms of section 67A.

The Commission is in the process of considering the evidence submitted, to
determine whether a recount should or should not be done? The question, as
to whether to order a recount, or not, is entirely in the discretion of the
Commission. This is provided in section 67A (7) which provides-

"The Commission's decision on whether or not to order a recount and, if it
orders one, the, extend, of the recount shall not be subject to appeal".

Interpretation of the Law applicable to the explanation

The prospect, of a recount, generated spirited legal arguments for and
against it. Mr Muchadehama submitted that section 67A being part of section
sixty-seven was excluded from the sections which were imported into Part
XVII by section 112. He further argued that section 67A does not apply to
presidential elections, because it is not found in Part XVII where
presidential elections are provided for.

Mr Chikumbirike for the respondents argued that section 67A is a section of
the Electoral Act in its own right and was imported into Part XVII by virtue
of its not having been mentioned among the sections excluded by section 112.

I agree with Mr Chikumbirike, because a section in a statute has its own
separate existence even if it shares a number with another section. It is
distinguished from the preceding section by the letter added to the number
it shares with the preceding section. A section in a statute is constituted
by the provisions after the number up to the last subsection under it. In
this case section 67 ends with subsection (3), and the next section which is
section 67A follows. Section 67A was not in the original Electoral Act. It
was introduced by section 48 of Act 17 of 2007. If the legislature intended
to make it part of section 67 it would have introduced it into the Act as a
subsection of section 67. A new section is usually placed in the part of the
statute where it fits into the scheme of the Act. In this case it was placed
between section 67 which provides for the notification of the result of an
election, and section 68 which provides for the publication of the names of
elected candidates in the Gazette, because that is where a recount
conveniently fits into the scheme of the Electoral Act, because it
determines the actual winning candidate whose name should be published. I am
therefore satisfied that section 67A enjoys a separate existence from
section 67. Therefore its exclusion from the sections of Part XIII, excluded
by section 112 from importation into Part XVII, means it was imported into
Part XVII.

Mr Muchadehama for the applicants summed up by submitting that even if
section 67A is held to be part of Part XVII it does not apply to
presidential elections because they have not yet been announced. He for that
argument relied on section 67A (l)'s provision that the complaint by a party
or candidate must be made within forty-eight hours after a candidate for
that election has been declared duly elected. Mr Chikumbirike for the
respondents submitted that the forty-eight hours within which the complaint
must be raised after the wining candidate has been declared does not apply
to presidential elections because section 112 provides for necessary changes
in the importation of Parts XIII, XIV and XV into Part XVII.

Section 67A as already found is part of Part XVII, by virtue of its
importation thereto by section 112. It therefore applies to presidential
election results with the necessary changes referred to by section 112. I
however do not agree with Mr Chikumbirike that the necessary changes extend
to the substantive provisions of section 67A. Where in a statute a provision
from one Part of a Statute is imported into another part of the same
statute, to "apply, with any changes that may be necessary" the court
interpreting that statute is not allowed to re-enact the relevant provision.
It can only make necessary changes, to make the provisions, fit into the
importing Part. That power is limited to the names of officers who act in
the importing Part, the sections empowering them to act, and the places
where they are authorized to act etc. The substantive provisions can not be
changed. They are infact the reason for the importation. They are intended
to influence the provisions of the importing Part.

In this case section 67A (1), will after the necessary changes have been
made read as follows-

(1) "Within forty-eight hours after the Chief Elections Officer has declared
a candidate to be duly elected in terms of section 110 (6), as read with the
provisions of the Second Schedule, any political party or candidate that
contested the election for the office of President, may request the
Commission to conduct a recount of votes in one or more of the polling
stations".

In its changed form section 67A (1) means a recount can only be requested
within forty-eight hours after the declaration of the results of the
presidential election. A recount before the announcement of the results, is
in terms of section 67A (1) as imported into Part XVII, not provided for. If
the request for a recount in terms of section 67A (1), is the reason for the
delay in announcing the presidential results, the delay is based on an
incorrect interpretation of section 67A (1). It would thus be an invalid
reason for delaying the announcement of the presidential election results.

Mr Chikumbirike for the respondents, further submitted that even if the
forty-eight hours apply (ZEC), can on its own initiative order a recount in
terms of section 67A (4) which provides as follows-

"The Commission may on its own initiative order a recount of votes in any
polling stations if it considers there are reasonable grounds for believing
that the votes were miscounted and that, if they were, the miscount would
have affected the result of the election".

Mr Muchadehama for the applicants, submitted that section 67A (4) should not
be read in isolation, but together with section 67A (1). He submitted that
if read in the context of the whole section, it means any recount
contemplated by it can only be done after the announcement of the results.

An analysis of section 67A (4) reveals that (ZEC) can act on its own
initiative to order a recount. It does not state when it can do so as is
specified in respect of subsection (1). The information on which it may act
on can come from any source including a complain as provided in subsection
(1). It simply should have grounds for believing that votes were miscounted.
If the legislature intended to restrict the 1st respondent to considering a
recount after the announcement it could have made reference to subsection
(1) as is done in subsection (3). The wide discretion given to the 1st
respondent on this aspect is confirmed by the provisions of subsection (7)
of section 67A. It provides as follows-

(7) "The Commission's decision on whether or not to order a recount and, if
it orders one, the extent of the recount shall not be subject to appeal".

The fact that (ZEC'S) decision to recount and the extent thereof is not
subject to an appeal means that it was intended to act independently and
that its decision would be final. The provision barring an appeal simply
means (ZEC) has been given a very wide discretion as to whether or not to
order a recount. The provision that (ZEC'S) decision shall not be subjected
to an appeal also means this court can not inquire into that decision. This
should therefore be the end of the inquiry, as the respondent's conduct can
only be open to the jurisdiction of this court when it strays from the law.

I should therefore find that the reason proffered by the respondents for
their failure to timeously announce the presidential results is legally
valid. It can therefore justify the delay. The respondents have not strayed
from the law. This court is therefore not entitled to intervene and order
the respondents to announce the results on the basis of failure to comply
with the law.

Mr Chikumbirike sought costs against the applicant's and their legal
practitioners, at a higher scale. He submitted that the applicant's
application was not necessary as the

applicants could have sought for information from the respondents. He also
relied on the fact that there are no time limits within which the
respondents are required to act, a fact which the applicants should have
known. Mr Muchadehama in response to the issue of costs said if any costs
are to be ordered they should be on the ordinary scale. He disputed that the
application could have been avoided as their letter of the 2nd April 2008
was not responded to. The issue of costs is in the court's discretion. That
discretion must be exercised in a manner that does not discourage people
from approaching the courts.
Electoral matters are very important to candidates, political parties and
the nation. In this case the whole nation is waiting for results. The
applicants were anxious at the time they made their application. Their legal
practitioners wrote a letter expressing anxiety and demanding the results
but did not get a reply till they resorted to this application. They should
not be penalized by costs on the higher scale for making an application in
circumstances were delay is conceded but has now been explained because of
their application.

I would in the result dismiss the application with costs on the ordinary
scale.

Messers Mbidzo Muchadehama & Makoni, Applicant's Legal Practitioners.

Messers Chikumbirike & Associates, Respondent's Legal Practitioners./