Zimbabwe High Court judgment against MDC petition

PRESS STATEMENT

Zimbabwe Ministry of Information and Publicity

Hon Bright Matonga (MP)

DATE:

14 April 2008

SUBJECT:

MOVEMENT FOR DEMOCRATIC CHANGE AND MORGAN TSVANGIRAI, Vs THE CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION AND CHIEF ELECTIONS OFFICER, (ZIMBABWE ELECTORAL COMMISSION)

The above matter was heard by the High Court from the 5th to the 9th and 14th of April, 2008.  The Judgment of the Court was delivered this afternoon at 2.30pm.  The operative part of the Judgment, (which sums up the Court’s decision) is expressed on page 15 of the cyclo styled Judgment as follows:

‘I would in the result dismiss the Application with costs on the ordinary scale’.

From a reading of the Judgment, and having spoken to Counsel for the Respondents’, I summarize below the most important aspects of the Judgment.  His Lordship, supped up his Judgment, (his reasons for coming to the operative part of his Judgment) dismissing the Application as follows: (Page 14 of the Judgment).

‘I should therefore find that the reasons 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’.

Counsel, for the Respondents’ has explained this to mean, that his Lordship, (Mr Justice Uchena) has upheld Respondents’ contention, that in respect of its functions, in terms of Section 61 A(4) of the Constitution of Zimbabwe:

‘that is, to prepare for, conduct and supervise –

(i)         Elections in the Office of the President and to Parliament; and

(ii)        Elections to the Governing Bodies of Local Authorities; and

(iii)       Referendums’ in which it is enjoined, to conduct those elections, ‘efficiently, freely, fairly, transparently and in accordance with the law’.

It is the sole arbiter, and is not subject (the provisions of Section 61 (5) of the constitution) ‘to the control of any person or authority’.  This position, as found by the Court, exculpates, ZANU PF, from the allegations made by the Applicants’ in this matter (which were to the effect that the delay (as alleged by themselves) in the release of the Presidential Results were consistent and consequent upon interference by ZANU PF).  In short, it completely repudiates the interference hype that has characterized the reports in the local and international media about the conduct of ZANU PF.

The High Court also dealt with an issue of present controversy: whether or not, a recount of the votes cast, in respect of the Presidential Poll, can be done legally according to the law?  The High Court ruled that the Electoral Commission is within its powers, in terms of the Constitution, to order a recount.  It accepted the interpretation given to Section 67 A of the Electoral Act, contended by the Respondents’ (ZEC).

The effect of this, is that barring an unforeseen act, the recounts of votes in the 23 constituencies related to, and identified in the Extra-Ordinary Gazette of the 12th of April, 2008, will not proceed on the 19th of April, 2008.  It also follows, (in Counsel’s view), that the electoral challenge that is set down for hearing before the High Court tomorrow, the 15th of April, 2008, will either be withdrawn, or if not withdrawn, will most likely be thrown out, (as Counsel put it), because the matter is ‘res iudicata’, (that is the matter has been fully and finally determined by the Court of equal jurisdiction as the Court which is to hear the  matter tomorrow (to finality and on the merits). The only way, I believe that the Judgment can be challenged, is by way of an Appeal. 

However, it appears that any Appeal that relates to the Judgment, especially in the part that relates to the recount, will be met with the same fate, (as this Application) because of the provisions of Section 67A (7), which makes the decision of the Commission, as to whether to order a recount, or not to, and the extent to which, a matter that is not subject to Appeal.  I believe that, that provision sanctifies his Lordship’s Judgment in the penultimate paragraph on page 14 of the Judgment.

The other issues related to in the Judgment, which is fairly voluminous, whilst of interest from a juris prudential point of view, are not of much interest.