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The Big Saturday Read: The law and politics of the 2013 presidential election petition

May 26, 2016

Alex T. Magaisa


On 9th August 2013, Morgan Tsvangirai, leader of the MDC-T and presidential candidate, launched a petition at the Constitutional Court, seeking the nullification of the presidential election held a week earlier on 31st July 2013. When we arrived at the Supreme Court armed with copies of the petition, it was evident that the petition was expected and they were waiting for it. A pack of journalists was also waiting at the front of the building. It was a hectic afternoon, and soon news of the petition was being reported by major news outlets around the world.

 

A week later, on 16th August 2013, in the late hours of the afternoon, the Supreme Court registry received another legal document from Tsvangirai. It was a notice of withdrawal of the petition. This particular event caught everyone by surprise. The election petition a week earlier had been expected, but this notice of withdrawal was a complete surprise. What followed was a lot of drama and confusion. Caught unawares, the Chief Justice scurried around to rescue the case, insisting rather implausibly that it could not be withdrawn and that they would go ahead and determine the case anyway.

 

But why had the petition been withdrawn? Most people, including party supporters did not understand what was happening. There was a lot of uninformed and speculative commentary in the media. It was hard to resist the temptation to respond. But we had to remain restrained as responding would have been strategically imprudent. The notice of withdrawal cited three reasons, but there was a bigger political background to what was going on, one that has never been fully told.

 

For the very first time, I offer a narrative which explains the events around the presidential election petition: what really happened and why? I do this for two reasons: first, to record a version of legal and political history, as observed through the eyes of one who had a vantage position as events unfolded and secondly, with the hope that lessons can be drawn from this experience.

 

Tactical move

 

The withdrawal of the presidential petition was a necessary tactical move in the context of the electoral and political battles of the time. In politics, as in war, you are constantly working to outwit your opponent. There are times when it’s necessary to attack, but also times when it is wiser to make a tactical retreat. In this case, the withdrawal became a tactical move to remove the opportunity which ZANU PF coveted, which was to have the judiciary confirm the validity of the election, which they were desperately seeking. This explains the absurdity of the Constitutional Court going to great lengths to refuse recognition of the withdrawal, and insisting instead that they had to hear the matter even after the petitioner had withdrawn. I shall very shortly return to this in more detail.

 

However, broadly, the withdrawal of the petition was made necessary by the broader events on the electoral landscape. The major clue to the withdrawal of the presidential election petition lies in the history of the constitution-making process. As I explain later, the presidential election petition was a hopeless cause from the start, not because it lacked merit, but because the opposition had conceded ground on the very crucial issue of composition of the judiciary during the constitution-making exercise. The rules regarding presidential election petitions and the judiciary had changed for the better, but regrettably, the “Human Factor” in the judiciary had remained static. It was futile to pursue a presidential election petition through a judiciary which the party had opposed and actively tried to remove and replace during the constitution-making process.

 

Why then was the presidential petition filed if we believed it was an exercise in futility in the first place? It was the next available legal step that had to be taken after arguing that the election was rigged. It was necessary to put the system to the test, regardless of the fact that we had very little confidence in the judiciary. More importantly, it was also an important platform to highlight the extent to which the entire system was biased. It had to be done, despite our misgivings, but events during that week after the elections, particularly the attitude of the courts, demonstrated that it was a futile exercise. I will now explain the historical background of the constitution-making process which had a huge influence on the fate of the presidential election petition.

 

Challenging the presidential election

 

One of the highlights of the new Constitution is that it introduced a new and improved procedure of challenging the validity of a presidential election. It was decided that a new and more efficient dispute resolution mechanism was necessary, which was particularly pertinent given that almost every election is characterised disputes over whether or not it was free and fair.

 

Section 93 of the new Constitution states that an aggrieved party can, within seven days after the declaration of the result, challenge the validity of a presidential election at the Constitutional Court. Previously, an aggrieved candidate had to approach the High Court but this meant there could be an appeal, all of which made the process long, arduous and uncertain as to when it would be concluded. It frustrated losing candidates, who had to contend with the power of incumbency and inconvenienced the winners, who had to govern with an unfinished dispute hanging above the presidency. This explains why there was a “rush to inauguration” – a phenomenon where the President assumes office very hastily soon after the announcement of the results.

 

It was against this background that a new procedure for challenging the validity of a presidential election was introduced under the new Constitution. The critical aspects of the new procedure are as follows:

  • First, the matter of challenging a Presidential election is now a constitutional issue to be handled by the highest court in the land, the Constitutional Court. It is no longer necessary to take the matter to the High Court. It is a reflection of the importance of the issue but it also cuts the time otherwise spent going through the High Court and the appeal process under the old system. The new system allows instant finality to any electoral dispute over the presidential election.

  • Second, the new procedure sets strict time limits within which a decision must be made by the Constitutional Court. The Constitutional Court is required to make a determination of the matter within fourteen days after the petition or application was lodged. This means the dispute can be resolved more expeditiously. As indicated above, the Constitutional Court’s decision is final which ensures finality to any dispute.

  • Third, the powers of the Constitutional Court when handling a presidential petition are very broad and flexible. They are set out in Section 93(4) which states that the Constitutional Court may declare a winner or invalidate the election in which case a fresh election must be held within sixty days after the determination. The fact that the court is also entitled to “make any other order it considers just and appropriate” means it has a very wide discretion in the matter. In other words, it might not invalidate or uphold the whole election, but it make any order which the justice of the case demands. The existence of this wide discretion and the fact that there is no appeal from the Constitutional Court makes it very important for the court to be independent and to act reasonably.

  • Fourth, to ensure that there is no “rush to inauguration” and the electoral dispute is resolved before inauguration of the newly elected President, section 94 provides that the new President will only assume office after the Constitutional Court has finalised the matter. If there is no petition challenging the validity of the election, a new President will assume office on the ninth day after the declaration of the election result. However, if there has been a challenge, the new President will assume office within 48 hours after the Constitutional Court makes a decision.

The net effect is that structurally, this new constitutional procedure for challenging the validity of a presidential election is designed to ensure efficiency and finality in the resolution of election disputes. The new procedure was pushed very heavily by the MDC parties during the constitutional negotiations. Tsvangirai had challenged the presidential election in 2002, but by the time the new Constitution arrived in 2013, he hadn’t received the judge’s reasons for dismissing his petition!

 

The “human factor” deficiency in the judiciary

 

While the new system of dispute resolution was hailed for providing a quick and expeditious mechanism for resolving disputes over the validity of the presidential election, this reform was grossly undermined by the failure to reform the judiciary. The new dispute resolution mechanism in presidential elections depends upon the existence of a fair, unbiased and efficient judiciary. Instead, the old judiciary, long suspected by the opposition to be captured by ZANU PF, remained intact. With the “human factor” in the judiciary virtually unchanged, the new dispute resolution mechanism was ineffective. It is an example of how a beautiful set of rules alone is insufficient without accounting for the “human factor” in the implementation and operation of those rules.

 

It is fair to state that one of the biggest failures of the constitutional reform process was the failure to reform the “human factor” element in the judiciary. It is hard to explain how the composition judiciary survived the reforms of the new Constitution – except that it was a poor and ultimately damaging concession on the part of the opposition. During the constitutional negotiations, the MDC parties had initially demanded comprehensive reforms to the judiciary, which would include significant changes to its composition. They wanted a set of reforms similar to judicial reforms in Kenya when they adopted their new constitution in 2010. In Kenya, when the new constitution was adopted, existing judges were required to resign and reapply if they wanted to continue. Some gave up, while others tried again. The appointment process was a new and improved system which involved public interviews and scrutiny of judicial candidates. Kenya wanted to have a fresh start after years of a corrupt, biased and inefficient judiciary. This was the position that the opposition and civil society were also pushing for in Zimbabwe.

 

However, ZANU PF was resisting these demands, opting for retaining the status quo. This was not surprising because this was a judiciary they had created. In 2000-01, through a series of intimidation and threats, the judiciary had undergone a radical transformation. The government did not trust the Supreme Court led by Chief Justice Anthony Gubbay, especially with the land issue. This led to a purge of the judiciary, which was almost wholly replaced by new members whose philosophy and outlook reflected the government’s position particularly on the land issue. As if to confirm this, Chief Justice Chidyausiku’s court went on to reverse an earlier constitutional decision in which the Gubbay Supreme Court had declared the Fast Track Land Reform Process illegal and unconstitutional.

 

When the judges pleaded poverty in 2007-08, even the central bank Governor had stepped in to dole out various gifts, including laptops and flat-screen televisions. Some judges also received land under the FTLRP and agricultural inputs from government.  There has long been serious concern over the decline of judicial independence, as confirmed by respected international bodies such as the International Bar Association (IBA), the International Commission of Jurists (ICJ). Therefore, while for the opposition, there was clearly a need for reform, ZANU PF was not interested. They had reluctantly agreed to the creation of a new judicial system, headed by a newly established Constitutional Court.

However, unbeknown to most people, the judges also had a representative in the constitutional negotiations. Justice Ben Hlatshwayo’s was supposedly present as an observer and where necessary, to provide advice to the constitution-making committee. However, it was also clear that he held a watching brief for and was representing the interests of the judiciary. When it came to issues involving judicial reform, the judiciary was therefore well-represented. Although, just like the chiefs the role was supposed to be neutral, it weighed heavily towards the side of ZANU PF. It is not surprising that in those negotiations, ZANU PF mounted a strong defence for the retention of the judiciary.

 

I was not privy to the final phase of the negotiations as by then I had moved to my political advisory role in the Prime Minister’s Office, but the provisions that were eventually agreed were disappointingly weak and compromised – and I have little doubt in my mind that it was at that point that the presidential election petition was lost. Although a new Constitutional Court was provided for, the substantive provisions were actually suspended for a period of seven years, meaning the status quo remained. The Kenya-style judicial reforms did not materialise. Old judges kept their jobs. There would be no new appointees to the Constitutional Court. Instead, judges of the Supreme Court would also sit as judges of the Constitutional Court. This effectively meant, the new Constitutional Court would be new in name only, not in the composition of the judges. This was contrary to what had been originally envisaged, which was that there would be new judges with expertise in constitutional law at the new Constitutional Court. The advice I wrote to the MDC-T team at the time was: “a critical requirement before the next election is to ensure that the Constitutional Court is properly constituted. This court may well be called upon to play a critical role in the election process and it is fundamental that it is truly independent”.

 

I wrote in addition: “Whether or not the new and quicker process will be fair is, however, dependent on the “Human Factor” – i.e. the calibre of human agents (the judges) who are appointed to the Constitutional Court. It is critical therefore, that this body be given full independence and that it be constituted by a new set of judges well before the next election. It is certainly one of the must-haves before the next election”.

 

Unfortunately, this “must-have” remained unfulfilled by the time the election arrived. There was no hope. The Constitutional Court was a replica of the old Supreme Court. In fact, on the eve of signing the new Constitution into law, President Mugabe unilaterally appointed two judges – Bharat Patel and Ben Hlatshwayo – to the Supreme Court. These appointment made moments before Mugabe signed the new Constitution into law were done to avid the new procedure which requires public interviews. They were also made without consulting or informing Tsvangirai, who was the Prime Minister.  It was typical of the arrogant and stubborn approach that President Mugabe simply ignored his Prime Minister and the new Constitution by making the appointments just moments before it became the supreme law of the land and after it had been approved at the Referendum in March 2013. It was a moment that showed dysfunctional character of the GNU and the powerlessness of the MDCs within the arrangement.

 

Our concern over the Constitutional Court’s bias and lack of independence in political matters had been confirmed by the dubious manner in which it had handled the Jealousy Mawarire application, the decision of which forced an early election. We knew ZANU PF wanted an early election before the new reforms brought by the new Constitution had set in. We were insisting on implementation of these reforms, particularly relating to elections and electoral institutions. The Mawarire application was a tactical move to force an election under the guise of a citizen applying to enforce his constitutional rights. No-one can begrudge Mawarire for trying to enforce his constitutional rights, but with respect, the decision of the Supreme Court and its reasoning in the matter was weak and absurd. Sadly, the judgment that made sense, delivered by Deputy Chief Justice Malaba was a lone minority. A critique of the Mawarire application and judgment is dealt with in a separate article.

 

In light of this historical background of the constitution-making process, the presidential petition after the election was a hopeless affair. It was a lost cause from the moment the reformists failed to affect the composition of the judiciary. The presidential petition became more of a political instrument than a legal tool with any real hopes of getting a result. Overall, the rules of the judiciary had changed but the human factor had not changed at all. What was worse was that these judges were fully aware that the opposition parties did not only trust them but had advocated for their removal and replacement. These same judges were now expected to preside fairly and impartially in a matter involving one of the protagonists who had no trust in them and another who had strenuously defended them: the outcome was predictable.

 

I will now proceed to explain factors during the week following the declaration of the result which confirmed our fears that pursuing the matter though the courts was a hopeless exercise which would only serve to avail an opportunity for the judges to validate and legitimise the election.

 

Denial of oral evidence and cross-examination

 

The futility of the petition became clear when our lawyers advised us that the Constitutional Court had already indicated that no oral evidence would be adduced at the trial of the petition. Our expectation was that the petition would be subject to a trial and that it would not be like an ordinary court application where the matter would be decided merely on the papers. Our view was that a petition of that nature would necessarily involve serious disputes of facts which could not possibly be resolved on the papers alone. It would be necessary to examine and cross-examine at least the key witnesses in order to assist the Court to establish the facts. We had gathered a vast amount of affidavits but in addition, we had a list of witnesses whom we wanted to testify in court.

 

In addition, we wanted to cross-examine public officers who had administered the election, including the ZEC Chairperson, Justice Rita Makarau, the Chief Elections Officer, Lovemore Sekeramayi, and more importantly, the Registrar-General Tobaiwa Mudede, who had refused and failed to provide an electronic copy of the Voters’ Roll. We wanted to cross examine and get him Mudede to explain why he had failed to deliver the electronic voters’ roll as required by the law and to admit that what he had done was improper and a contravention of the law. We also wanted to subpoena officials from Nikuv International, the company that notoriously worked behind the scenes assisting the Registrar-General in preparing the voters’ roll, which was kept well-hidden and we strongly suspected that that was where much of the rigging had taken place. Indeed, President Mugabe and his campaign team would have had to defend themselves in open court.

 

Politically, our objective was that even if the court made a biased and unfavourable decision, they would have done so with clear facts staring them in the face. Only a trial of the petition, with adducing of oral evidence, would be the most effective way to do that. The question that is often asked when the opposition alleges rigging is where the evidence is.  But this is where examination and cross examination of key witnesses, particularly those in charge of running elections is critical. Yet in this crucial case in respect of the validity of the presidential election, the Constitutional Court had already given an indication that no oral evidence or cross-examination of witnesses would be entertained.

 

What was the point?

 

This refusal to admit oral evidence and the cross examination of witnesses, in our opinion, made the whole exercise a pointless charade. It took away the opportunity to expose the cheating that had taken place by thoroughly examining the public officials in charge of elections. It was our last effort at holding them accountable and even shaming them. We felt that by refusing to admit oral evidence and cross-examination, the Constitutional Court had robbed us of this opportunity. We did not want to give them the pleasure of pronouncing judgment on our case without giving us the opportunity to interrogate these public officials. This partly why we took the opportunity to press the withdrawal button. If they were not going to allow us a fair chance to expose the cheating, there was no point proceeding.

 

Denial of access to election materials

 

The withdrawal was also driven by the courts’ refusal to allow us access to evidence from electoral authorities. For example, we strongly believed that the number of people who had voted had been grossly inflated and that the ballot papers did not tally with the number of people who had actually voted. There was evidence of multiple voting by persons who had used voter registration slips. In Mount Pleasant, there was a video recording of rural people who had been bussed in to vote in that constituency. They had been caught red-handed and exposed by our Secretary-General Tendai Biti.

It was important to have access to the ballot boxes and other election materials to carry out an audit. The information that we were requesting was very simple and straightforward. It involved details of numbers of ballot papers that had been printed, the number of ballot papers that were distributed to polling stations, how many had been used, how many had been spoilt, how many had been returned, etc. We were demanding this information to ascertain the credibility of the election.  A simple comparison of ballot papers in the ballot box and registered voters who had voted at a ward polling station or in a constituency would have helped to demonstrate if the figures were corresponding. A systematic discrepancy where there were more ballot papers than the registered voters who had voted would have given away potential cheating.

 

However, efforts to get access to these materials were frustrated by the courts. In one case at the High Court, which was brought on an urgent basis by MDC-T requesting access to materials, Justice Bhunu simply reserved judgment and by the time Tsvangirai withdrew his petition on 16th August 2013, a day before the Constitutional Court was due to hear the petition, judgment in that matter had not been delivered. When the judgment finally arrived, the judge denied the application, holding that only the Constitutional Court to could handle requests to access election materials. The decision was based on strange reasoning which meant that even where a mere candidate for a local authority was contesting election results in his ward and wanted access to ballot boxes, he would have to make an application to the Constitutional Court. For us, the only reason these materials were been kept away was not only to frustrate, but also to keep evidence of rigging hidden away.

 

Denial of electronic voters roll

 

Another frustration was in respect of efforts to access the electronic copy of the voters roll. The ZEC is legally obliged under the Constitution and the Electoral Act to avail a searchable and analysable electronic voters’ roll to contestants or anyone who wants it. It is free. However, contrary to the law, ZEC had failed to do provide it. In any event, ZEC was not in control of this document, which was under the charge of the Registrar-General, Tobaiwa Mudede. The High Court ordered ZEC and the Registrar-General to provide the voters’ roll but the Registrar-General simply pleaded that his computer was broken. In a further legal challenge, a judge ordered the Registrar-General to produce the electronic copy of the voters’ roll, but this was made conditional on the basis that the broken computer had been fixed. This was a useless decision, which allowed the Registrar-General ample room to avoid compliance by simply pleading that his computer was still broken. It therefore became impossible to obtain the notoriously elusive electronic copy of the voters’ roll. We believed that much of the rigging that had taken place was around inflated numbers and fictitious names of voters on the electronic copy of the voters roll, which probably explains the strenuous efforts that were made, with the courts playing a role, to keep it out of public sight or scrutiny.

 

Meanwhile, as all these legal battles over access to the ballot boxes, the electronic copy of the voters’ roll and other election materials were raging, the clock was ticking. In filing a presidential petition, time is of the essence, since there is only a 7 day window within which to file the petition. The longer the courts delayed in granting us access to election materials which we needed to support our case, the more frustrating and futile the exercise became. It made no sense for the judge to reserve judgment when there was a race against time. Yet that is precisely what the judges were doing. It was utterly frustrating. The system knew that denial of access to election materials would frustrate us and place us under pressure, and that is precisely what happened.

 

The last card we controlled

 

It became necessary to play the last tactical card, which was to withdraw the petition completely. The idea was that withdrawal would deny ZANU PF and the Court an opportunity to make a final pronouncement on the elections, declaring them to be free and fair. We had figured out that the petition was something the system was quite keen on for purposes of getting the judiciary to validate the election. For the system, the Constitutional Court would provide confirmation that the elections were free and fair. After all, it was the Constitutional Court that had set the ball rolling in holding the elections on July 31. It would now step in at the other end of the process to declare that the election was free and fair. However, for the court to intervene and make that determination, it needed a presidential petition. Thus the system was also keen on our petition, particularly as both SADC and the AU at that time had only said the elections were “free” but had shied away from pronouncing that they had been “fair”. For them, this gap would be filled by the Constitutional Court, the highest court in the land. Once it had pronounced them free and fair, who else outside would challenge it?

 

We figured that since they had frustrated our efforts to gain access to election materials and since all indications had shown that the court was biased against us, there was only one last card that we had control over, and it was to withdraw the petition altogether. They could not force us to continue with a petition we had withdrawn. They tried to do this in the end but it was absurd and ridiculous in the extreme.

 

We knew that the withdrawal would shock and place them into panic mode and it did. One of the most hilarious episodes of that entire period was seeing the Chief Justice and his fellow judges of the Constitutional Court getting upset by the withdrawal and insisting that it was legally impossible to with draw a presidential petition. They duly summoned our lawyers to attend court regardless of the withdrawal who took quite a beating from the judges on our behalf. The judges railed against what they felt was disrespect bordering on contempt of court in the petition. In the affidavit and dossier attached to the application, a point had been made quite clearly to the effect that the MDC believed that the judiciary was compromised and lacked independence. These were unusual statements and probably rude as the judges thought, but that was precisely the point: the petition was as much a legal document as it was a political protest against an entire system which included the judiciary. The judges would obviously deny it.

 

Although the Court went on to make a determination after the withdrawal of the petition, it was a foregone conclusion and it did not bother us at all. For us, that court ruling was no different from the June 27 Presidential election run-off election in 2008, which had proceeded as a one-man race after Tsvangirai’s withdrawal a few days earlier. They still went on to pronounce the election as valid but it was the hollowest victory of Mugabe’s political career. The Constitutional Court took pleasure in pronouncing that the election had been free and fair, but it was a hollow pronouncement in a case where the petitioner was no longer a willing participant. It was demonstration of how desperate they were to give judicial confirmation to the election result that the Constitutional Court insisted on going ahead to hear the matter even when the petitioner had indicated that he no longer wanted to be heard. It was absurd. I had never seen anything like that before in a court of law.

 

Protest

 

Finally, the withdrawal of the petition represented a protest against the unfairness and bias of the entire electoral system. It was an utterly frustrating experience in which the whole election machinery was skewed in favour of ZANU PF. It was an election in which we should never have participated because everything was clearly weighted against the opposition. However, those of us who were opposed to participation were in the minority. The majority, whom we referred to as the “31st July Movement”, believed the sheer force of numbers would overwhelm the rigging system. This was misplaced optimism, but that’s a story for another day.  When Mugabe spoke on the occasion of Heroes Day, he made a point of speaking about the election petition that Tsvangirai had launched challenging the election. The Chief Justice was in attendance as Mugabe pronounced judgment on the petition, castigating the petitioner. This was a litigant in the case commenting in a case in full view of the Chief Justice who was expected to preside over the matter. The judiciary did not do or say anything after this attack in a matter that was sub judice.

 

I was surprised that people had any hope that the Constitutional Court would overturn the election result. There was a lot of criticism that the presidential petition should not have been withdrawn. It was understandable because most people outside did not know what we knew. I’m almost certain that most of those people would have refused to understand if the party had withdrawn from the election. An African diplomat had once said to me when we met them at a briefing that the problem with Zimbabweans is that we were too hopeful in a manner that obscured political reality. “So hopeful”, he quipped, “that one could say you Zimbabweans are hopelessly hopeful”. What he meant was that even in a situation where there is virtually no hope, we still believe something good will happen. It was quite a dramatic way of describing our attitude and when we met we often joked about the “hopeless hopefuls” of Zimbabwe. That description was quite appropriate on the occasion of the presidential petition. Some people hoped there might be a result, but there was really no hope on account of the unchanged and captured judiciary.

 

How the decision was made

 

The decision to withdraw was not taken unilaterally. It was done on the advice of the lawyers and the political advisory group. We looked at the challenges we were facing – especially the refusal by the Court to admit oral evidence and cross examination, the refusal by the Court to allow access to election materials, the continued refusal by the Registrar-General to avail an electronic copy of the voters roll and other matters. Under the circumstances, the only practical result of continuing with the petition was to legitimise the judicial charade. We collectively agreed that it was unwise to proceed with a petition. It was the equivalent of going into a boxing ring with one hand tied to the back in a match overseen by a biased referee. The decision was communicated to the leadership of the party.

 

A senior lawyer and I were tasked with the responsibility to present the case for withdrawal to the National Executive Committee of the party. If the Secretary General had presented it, political rivals within the party might have accused him of driving an agenda against the President. Thus the responsibility fell on our shoulders as the technical people who were unaffected by the internal party dynamics. After all, I was the party President’s adviser and the senior lawyer was a very well-respected professional who had served the party for many years. Some members of the National Executive disagreed and thought that the petition should proceed. They made their submissions quite strongly but it was clear that they were not looking at the bigger picture. They had too much faith in the judiciary even when its handling of election-related cases had already shown serious weaknesses. In the end, the National Executive agreed to the withdrawal and made a resolution to that effect. Thus it was a collective decision, arrived at through a democratic process, albeit driven by the experts.

 

However, one thing worried us: that the decision to withdraw would leak to ZANU PF, the judiciary and the media prior to the withdrawal. It was supposed to carry the element of shock and surprise. Political parties are heavily infiltrated and information sells. It would only take one member of the National Executive to send a text message to the other side and the proverbial cat would be out of the bag. So the notices of withdrawal had already been prepared in advance and as soon as the National Executive resolved to withdraw, the notices were dispatched. What followed was high drama as the judges scurried to rescue the case, arguing, rather implausibly, that they would continue to hear the matter even though we had withdrawn. The Court’s obvious desperation to hear the case and make a determination betrayed what we thought all along: that this presidential petition was seen by the system as a good occasion to give judicial endorsement and legitimacy to the election. By withdrawing the case, we had literally pulled the rug from under their feet!

 

Too little time

 

One final observation I made on that occasion is that the period within which a presidential petition must be filed and concluded is woefully inadequate. Section 93 states that the petition must be filed within 7 days of the announcement of the election result. In that time, the petition must be prepared, evidence must be gathered across the country, witnesses must be assembled from around the country, applications must be made to the courts to gain access to election materials, and if granted the ballot boxes must be opened under supervision, vast amounts of data must be analysed and collated. All of this and more must be achieved within a week. It is almost an impossible job given that the petitioner has no control over the courts handling of those applications to access information and Zimbabwean judges often reserve judgments even in urgent matters. This concern over the shortness of the time-limit was raised during the constitution-making process but it was not given due attention. It should have been taken more seriously.

 

Conclusion

 

This narrative was meant to fill a gap in the political literature around the 2013 elections. I have always wanted to give an account of what happened and why it happened. This narrative is a chapter in a longer work that reflects on those seminal elections. It’s in keeping with my belief that we must not only tell our own stories and that key events in our political history must be recorded for posterity so that we can learn from them. The presidential election petition procedure is a fine example of how the intention is often mispresented by the end result in the wording of the constitution. It is also a great example of the theory of the “human factor” in governance that no matter how good the rules are, ultimately, much rests on the human agents who operate or implement those rules. The presidential election petition became a hopeless exercise the moment the opposition parties conceded ground on retaining the composition of the judiciary. And as long as the current judiciary continues in that mode when it comes to politically-related matters, any hopes that the courts will resolve political disputes fairly will be hopelessly misplaced.  There are still some brave judges on the bench who have been able to resist the pressure of politics in executing their constitutional mandate and the hope is that they never succumb and continue to do a professional job.

 

WaMagaisa

 

The views I have expressed in this article are my own and do not represent the views of any other person or organisation. They are my observations, I speak only for myself and the views should not be attributed to any other person. This article is based on a draft chapter in a book which analyses my political experiences and the 2013 elections.

 

wamagaisa@gmail.com

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