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BSR: judgment day

August 24, 2018

 

 

I’m not sad that we lost. I am not sad because I was prepared for it. As sure as the sun sets at dusk each day I knew it was coming. I knew they would steal it again, even in the courts of law. It’s the system, I have always said. The system is compromised. Totally.

The system prepared me for it. I don’t trust the system. I have never trusted the system. You will remember, twice – well more than twice, I have written about the system. I have said the system has tentacles that stretch in all spheres of life. Everything. The hotel where you are booked. The restaurant where you had your dinner last night. The local supermarket where you buy your bread every day. Your office. It’s everywhere.

The system controls ZEC. How can it spare the courts of law? If the system used hundreds of men and women in ZEC to cheat, how would it fail with 9 men and women in the bench? You saw the conduct on Wednesday, but we will come to that in a moment. It doesn’t matter how many beautiful rules you have. In the past, I have referred to the “human factor” in judicial decision-making. Let me quote extensively from a previous BSR:

 

“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.”

 

In short, we lost this election petition in 2013, when we failed to reform the judiciary.

 

Look at some of the judges who determined this petition: Chief Justice Malaba came with much promise but his tenure so far has been a disaster. Not long ago, he delivered a most ridiculous judgment which justified the coup. Having justified the coup, it was hard to see how he would rule against the incumbent in this case. The illegality of the coup was probably far worse that electoral theft. Before, twice he had rejected the diaspora vote - first in 2005 and then in 2018 - on both occasions using reasoning that was untenable.

 

Malaba had shown some discretion in 2013 when he produced a strong dissenting opinion in the case where ZANU PF was indirectly pushing for an early election through. But beyond that his opinions in political matters have been poor and pro-establishment at best. His conduct in the presidential petition was clear for all to see – pro-establishment and hard on the applicants. To find that ZEC had been flawless, with all the false information presented, in this election is disastrous. It was hard to think any Chief Justice would perform worse than Chidyausiku. He literally lost his voice when the ZEC lawyer was presenting his submissions.In the end, the court concluded that thw ZEC lawyer's submission were impeccable.   

Makarau, my old teacher, had a disastrous stint as ZEC chair until she left office in December 2017, soon after the coup. It’s not clear whether she was pushed or she jumped. Whatever the case, she quietly went back to her old job where she is now ensconced. She was always timid at ZEC. She was never going to have the courage to go against the establishment. Would she have said her former organisation which she headed for nearly 5 years had failed to run elections without incriminating herself? It was hopeless. She tried to ask questions but stopped short when it mattered most. A former non-constituency MP chosen ZANU PF it was always going to be an uphill task.

Then there is Ben Hlatshwayo, another of my old teachers and a former lecturer at the University of Zimbabwe. He has a dismal record in electorl matters which may never be broken. He presided over Morgan Tsvangirai’s election petition in 2002. He has never delivered a written judgment for his dismissal of that petition. Tsvangirai went to his grave while he was waiting for Hlatshwayo’s reasons of his dismissal. And here h was, 16 years later, now a judge of the Constitutional Court, sitting in judgment of a petition by Tsvangirai’s successor. Why are we supposed to be sad that Hlatshwayo has ruled against Chamisa?

There’s Justice Bhunu. He was elevated from the High Court a couple of years ago. In 2013 he presided over election cases in which MDC candidate Jameson Timba was seeking access to election materials. His orders were negative. He also presided over cases where the Opposition was demanding access to the voters roll. In a later case, when Dumiso Dabengwa sued to ensure ZEC prepared the voters roll, while agreeing that ZEC had a duty, he managed to craft an order that allowed ZEC a lot of leeway to avoid its constitutional obligations.

This is just a sample of the judges who sat to determine the current petition. Why would anyone have harboured any hopes with this type of judges in the lineup? No, they are not the type to rule against the establishment. They were always going to rule in favour of the establishment particularly given the high stakes involved in this case. There were never going to put hard questions to te estabilshment and they didn't, even when the lawyer presented false statement or issue that required robust interrogation. 

It’s the system. The system was already against Chamisa and the MDC Alliance from day one. The best there was, if any, was a miracle.  

There were early signs of an unbalanced playing field when part of Chamisa’s legal team was denied the right to appear in Court. Chamisa had hired 3 South African lawyers to beef up his legal team. At least one of them would have made an appearance to support lead attorney, Advocate Thabani Mpofu. The Minister did not give them permission, which relegated the foreign attorneys to the terraces.

The grounds upon which they were denied are untenable. The Minister said they could not be permitted because South Africa is not a reciprocating country in terms of the law. However the exemption certificate for foreign lawyers is actually designed for foreign lawyers from non-reciprocating countries. It allows those attorneys to appear for a limited period for the hearing of an actual case. This was a proper case warranting the grant of an exemption certificate on the basis of the importance, complexity and special circumstances of the matter at hand.

Besides, the Declaration of Rights in the Constitution guarantees the right of every person to a legal practitioner of his choice. This is provided for in s.69(4) which states that “Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.” Section 7 of the Legal Practitioners Act facilitates the right to choose a foreign legal practitioner by providing for the issue of an exemption certificate.

In this case, there was an absurdity in that the application for an exemption certificate had to be decided by a person who is clearly conflicted. The Minister of Justice is Ziyambi Ziyambi, who was also the chief election agent for Emmerson Mnangagwa, one of the key respondents who was opposing the presidential petition. The denial of the exemption certificate was therefore tainted by a clear conflict from the very beginning. It was neither fair nor transparent.

Fair and equitable treatment of parties

In a normal trial where there are conflicts of facts, parties have a right to cross-examine the other parties to enable the court to establish the truth. There were numerous conflicts of facts in this matter. However, there was no room for cross-examination. This led the Court with an important inquisitorial role, robustly questing the lawyers in order to establish the veracity of facts presented by their clients. As was evident, the Court was very robust, to the point of hostility, in its questioning of the applicant’s lawyer. However, by contrast, it was tame in relation to Mnangagwa and ZEC’s lawyers who were allowed free reign even where critical questions were warranted.

For example, ZEC was presented with an important discrepancy over the difference between presidential and parliamentary votes amounting to at least 40,000 votes. The best way for ZEC to clear the admitted difference would have been to present an official record of voters who had voted in the presidential election but refused to vote in the parliamentary vote. This is what the Electoral Law and ZEC’s own regulations require. The Electoral authority is required to record the details of such voters in Form PE2005/AA.

 

None of the judges put ZEC’s attorney to the test. They could have demanded an explanation as to the process where a voter chooses to vote in one but not other elections. They could have asked why ZEC did not present Form PE2005/AA as proof to explain the difference. Do they even have it? If the court was insisting on the applicant presenting V11 forms from polling stations, it should also have insisted on ZEC presenting Firm PE2005/AA as primary proof of voters who voted only for the presidential candidate but not the parliamentary candidate.

Furthermore, the ZEC lawyer made questionable submissions to explain the difference. In one instance, he submitted that it was possible that there would be a difference in votes since there were no votes in the parliamentary and local elections. One judge quickly dispensed with the local authority issue because it was irrelevant to the question. But when it came to the parliamentary election, the ZEC lawyer waffled about the MDC Alliance not having fielded a candidate in two constituencies. He only named one, Insiza North, which was misleading because there was an election in that constituency since althoughbthe MDC Alliance had not field a candidate, there were 7 other candidates apart from the ZANU-PF candidate. The point the ZEC lawyer was making was blatantly misleading but the Court allowed it to go without scrutiny. Incredibly, the court found his submissions to be incontrovertible. It’s a sham.

In another instance, the ZEC lawyer was asked about 16 polling stations where there were suspiciously identical results. The ZEC lawyer picked only 2 to which he tried to provide a flimsy explanation. The judges did not question him over the other 14 polling stations, leaving him to proceed as if that was normal. The Court did not even make reference to this in its abridged judgment. Nothing at all.

When asked about signed but blank V11 forms, the ZEC lawyer rambled on about there being up to 21 pages of forms, an explanation which made little sense and was false but incredibly the Chief Justice nodded that they were following his line of explanation. V11 are one page and even if they were more than one page, there is nothing that justifies signed blank V11s. They are supposed to be signed when they are populated with the actual results. That circumstance alone should have raised serious enquiry from the Court.

All in all, while the Court did a robust job in questioning the applicant’s lawyer, to the point that some observers were left with the impression that it was hostile, it was remarkably tame and soft towards the respondents’ lawyers, who were allowed acres of space to ramble on without interference or interruption. The judges seemed to only find their voice when the applicant’s lawyer was speaking, constantly interrupting and breaking his stride. To his credit, the applicant’s lawyer remained calm and unfazed.

Impartiality of courts

The independence and impartiality of the courts is important to all who live, deal or invest in the country. Likewise, the right to a fair hearing. Litigants must be treated fairly and equally regardless of their station in life. This is why it was fundamental, in a case of this magnitude which was being watched by many around the world, that the court demonstrated impartiality and equal treatment. Indeed, the Constitution guarantees the right to equal treatment under the law and prohibits unfair discrimination.

 

The manner in which the hearing was conducted left the impression that the Court was harder on one set of litigants and softer on the others. Indeed, whereas ZEC and Mnangagwa were virtually a tag team throughout the hearing, the Court has already thrown out the submissions of 3 other litigants who were cited in the application. The Court said it would give its reasons later, but arguably their right to a fair hearing had been thwarted. They were affected parties and deserved to be heard and technicalities should not have stood in the way in a matter of that magnitude and importance. 

Then of course there was conduct prior to and during the petition. Those statements and congratulatory messages, regardless of what was going in in court. It was a sham from the beginning. There was no effort whatsoever, from the start, to challenge the conduct of the incumbent and his associates. It pointed to one thing. Yet, grabbed by the spirit of self-immolation many hoped for a positive outcome. It would only have been a miracle. A miracle. Nothing more. The system was never going to allow it. We went through a coup a few months ago. They reminded us time and again that the coup would end with the retention of Mnangagwa. That’s where we are now.

Conclusion

 

Mnangagwa has been declared as th winner of the election. By the most slender of margins. The challenge though, is you can steal an election. But can you steal the hearts and minds of the people? Can you steal legitimacy?

 

The judicial process might have tried to help But the apparent hostility and bias put paid to all those hopes. A referee is supposed to be fair and impartial. The Court has hard on theapplicant and soft on the respondents even where key questions needed to be asked. It hurts Mnangagwa's claims to legitimacy. What happened t=in the Constitutional Court is not the kind of thing that happens in the courts in countries where Zimbabwe wants legitimacy and investment. 

 

We are back to square one. It’s vacuous victory. It’s empty. It’s a sad day for Zimbabwe because many questions remain. In 2013, Morgan Tsvangirai abandoned his petition precisely because we knew the Court would try to legitimise Mugabe’s victory through its judgment. This is what the system has tried to do in this case.

 

But the conduct of the case has matter has left Zimbabwe in a worse place. The judgment does nothing to confer legitimacy to a shoddy, farcical and unfair electoral process. The politicians have to look beyond the electoral and judicial process to find legitimacy.

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