Zimbabwe Parliamentary Election Challenges Newsletter

The Zimbabwe Human Rights NGO Forum – April 30, 2001, v.9

Four Decisions Announced – MDC wins 3, ZANU (PF) 1

In a flurry of activity at the High Court last Thursday and Friday, Justice James Devittie handed down four decisions that seem to set a new precedent for the election petitions. He ruled for the petitioner in the constituencies of Buhera North, contested by MDC President Morgan Tsvangirai, Mutoko South, contested by Derek Muzira, and Hurungwe East, contested by Richard Chadya. He also denied the petition in the Shurugwi constituency brought by MDC candidate Gladys Matibenga against MP Francis Nhema.

These decisions apparently conflict with the earlier Zvishavane case in which Justice Vernanda Ziyambi denied MDC Candidate Farai Maruzani’ s petition. In that case she admitted that abuses and intimidation took place against MDC supporters but stated that she found no proof that the respondent, MP Pearson Mbalekwa, was involved in any wrongdoing. But Justice Devittie found that the respondent did not have to be directly involved in any irregularities for the petition to be approved. In the Buhera North constituency, won by MP Kenneth Manyonda, he stated that, ‘The respondent was not personally or willingly involved but through his agents, for whom the law makes him answerable, has been guilty of undue influence.’ The Supreme Court will have to make the final decision on whether the respondent’s involvement is necessary to approve a petition when it hears both the Zvishavane and the Buhera North cases on appeal.

Justice Devittie also made clear that the success or failure of the election petitions did not hinge on whether the alleged violence or fraud had an affect on the outcome of the vote. In the Mutoko South case, Olivia Muchena won her seat by over 18,000 votes out of roughly 20,400 polled. Derek Muzira complained that the lopsided outcome of the vote was due to the fact that the MDC could not campaign properly due to intimidation. Justice Devittie stated that, ‘… the laws of this country, which I have a duty to obey, do not permit me to take into consideration that the violence and intimidation did not affect the result.’

Minister of Information and Publicity Jonathan Moyo stated that ZANU (PF) would abide by the rulings although it would contest its losses once the full decision of the Court was published. ‘We have not exhausted our legal recourse because the judge did not give reasons. But whatever the final outcome, the bottom line is that we are committed to the rule of law and the respect to court decisions,’ he said.

Justice Devittie further stated that, ‘The decision I have arrived at has caused me more anxiety than I have had cause to feel in the time I have sat on the bench. And if truth be said, my convictions have been sorely tested by consideration of what men of my generation perceive to be in the national interest, by an appreciation that this nation is undergoing a process set in motion in pre-independence times to achieve economic and social justice.’

Under law, candidates who lose election petition cases can be barred from holding political office for up to five years but Justice Devittie did not find evidence sufficient enough to warrant such a punishment in any case. The rulings will set up by-elections in all constituencies where petitions were approved. The Registrar-General will set the dates of those elections.

In the Masvingo South case, a hearing was held before Justice Devittie on Friday morning in which the advocate for the respondent demanded a list of the petitioner’s witnesses and a summary of their prospective testimony. The advocate argued that it was the legal right of the respondent to know the identities of the witnesses in order to properly respond to the allegations brought before the court. However, the advocate for the petitioner argued that the identities should not be divulged until the witnesses had been safely brought to Harare. Judge Devittie asked the respondent’s advocate to answer to the evidence that there has been widespread intimidation and violence against witnesses before and after trial. Judgment was reserved, and a ruling is expected next week. In the past, such requests have been denied but recent evidence suggests that witnesses in the election petition hearings have been severely intimidated, often violently, since the trials began in February. The April 16th ‘Zimbabwe Election Challenges Newsletter’ documented the case of three human rights lawyers who were assaulted when they attempted to witness the beating of a witness in Chikomba.

Earlier last week the petitioner in the Gutu North case, CZ Musoni, withdrew his petition without explanation.

Background

Last June, parliamentary elections were held in Zimbabwe in an atmosphere of fear and violence. The elections marked the first time a strong opposition party, the Movement for Democratic Change (MDC), challenged the ruling Zimbabwe African National Union – Patriotic Front (ZANU (PF)) in the political arena. The MDC won 57 out of 120 contested seats but the price was high as pre-election violence erupted in the form of extra-judicial killings, beatings, property damage and intimidation around the country.

International observers and commentators including Amnesty International, the Commonwealth, the US-based National Democratic Institute and the European Union all released reports citing evidence that the elections were not free and fair. In fact, Zimbabwe’s own Electoral Commission proclaimed the elections the bloodiest since the end of white minority rule in 1980.

Both political parties blame the other for incitement of violence. However, the MDC has brought legal challenges to the High Court of Zimbabwe in 39 constituencies in an effort to overturn election results in those areas. They are alleging that the violence perpetrated by ZANU (PF) agents, with the knowledge or active participation of the ZANU (PF) candidate at the time, unfairly affected the outcome of the vote thereby violating the Electoral Act of Zimbabwe. The cases have thus far involved numerous allegations of violence being perpetuated by veterans of Zimbabwe’s war of liberation. Factions of these veterans are widely regarded to be militant and very close to ZANU (PF). War veterans are seen to be responsible for numerous acts of violence perpetrated against white commercial farmers in the past year in protest of what is perceived to be white domination of the industry. The vast majority of the electoral violence was perpetrated against members or perceived members of the MDC. They are asking that all elections in these 39 constituencies be re-run to achieve accurate results. If any member of parliament is found guilty of election misconduct in these proceedings, that member will be ineligible to run for public office for five years and a bi-election will be called in that constituency to determine a new sitting member.

In addition to allegations of violence, many protest the government’s changes to the Electoral Act immediately preceding the election. The Electoral Act allows for the president to make changes to the electoral system. He did so in the following ways: 1) Changes in the postal ballot system were made on June 7, ahead of the voting dates of the 24th & 25th June, to make it more difficult for Zimbabweans abroad to cast their ballots, 2) The Electoral Supervisory Commission had its power to accredit observers and monitors revoked and placed in the hands of the Registrar General, 3) Sitting dates for the Nomination Courts were deferred from May 29 to June 3, 4) The Electoral Act’s 21-day provision between nomination and polling was shortened to 20 days, and 5) Voter registration was extended from 16 April to 12 June. (All information regarding changes to the Electoral Act is courtesy of the Zimbabwe Human Rights Forum’s report, ‘Human Rights and Zimbabwe’s June 2000 Election’)

The Amani Trust, a Zimbabwean NGO advocating for victims of organized violence and torture, will produce a weekly report for the international community on the progress of these trials. This report will focus on cases of gross human rights violations and electoral abuses within constituencies that have cases before the High Court.

Election results courtesy Zimbabwe Election Support Network ‘Report on the 2000 Parliamentary Elections: Zimbabwe’

Status of Cases
It is expected that Chiredzi South and Makoni East will start this week. Makoni West has adjourned until May 14th. Gutu North has been withdrawn.

Constituency Case Status Ruling Appeal
Buhera North Tsvangirai vs. Manyonda Completed MDC To Supreme Court
Chinhoyi Matamisa vs. Chinyangwa Completed Pending
Chiredzi North Mare vs. Chauke Completed Pending
Gutu North Musoni vs. Muzenda Withdrawn
Hurungwe East Chadya vs. Marumahoko Completed MDC To Supreme Court
Kariba Sigobole vs. Mackenzie Withdrawn
Makoni West Makuwaza vs. Mahachi Reconvenes 14/5 Pending
Mutoko South Muzira vs. Muchena Completed MDC To Supreme Court
Shurugwi Matibenga vs. Nhema Completed ZANU (PF)
Zvishavane Maruzani vs. Mbalekwa Completed ZANU (PF) To Supreme Court

Sources: Witness statements, medical reports and court testimony.

*Election results courtesy Zimbabwe Election Support Network ‘Report on the 2000 Parliamentary Elections: Zimbabwe’

Prepared by the Amani Trust. Founded in 1993, Amani Trust is a Zimbabwe human rights non-governmental organization whose mission is to offer rehabilitation to survivors of organized violence and torture and their families. It also aims to make the nation aware of the consequences of organized violence and torture, and to work towards the prevention of future organized violence and torture. Amani Trust is also a member of the Zimbabwe Human Rights NGO Forum, a coordinating body and coalition of nine Zimbabwean human rights organizations, which works to provide legal assistance to political violence victims.
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