[Bill-Watch] Court Watch 6/2014 of 24th April [Electoral Court & Election Petitions : Part I : Withdrawn Petitions]

[Veritas Bill Watch]

COURT WATCH 6/2014
[24th April 2014]
Election Petitions Challenging 2013 Election Results in the Electoral Court
Part I - Withdrawal of Most Cases
Introduction 
This bulletin is the first in a series on election petitions challenging
individual election results in last year's harmonised elections for National
Assembly constituency seats and local authority councils.  These bulletins
follow Veritas bulletins issued last year covering court decisions in the
run-up to the July harmonised election and the fate of Mr Tsvangirai's
Constitutional Court election petition challenging Mr Mugabe's election as
President, as follows:
Pre-election court cases  
These bulletins covered cases arising from disputes over the election date,
the amendment of the Electoral Act by Presidential Powers regulations
instead of Act of Parliament, the  lack of provision for voting by
Zimbabweans in the Diaspora, difficulties over the nomination date and the
non-availability of voters rolls, and the fiasco caused by the innovation of
early special voting arrangements for the security forces.  These were
covered in the following bulletins: 
Bill Watch 19/2013 of 11th June: Are Elections by End of July Possible?
[Constitutional Court judgment of 31st May ordering elections before end of
July]
Bill Watch 28/2013 of 4th July - Constitutional Court Confirms 31st July
Election Date [the court's order rejected an application for a 14-delay in
the election, and upheld the President's election proclamation, the use of
the Presidential Power regulations to amend the Electoral Act, and election
arrangements generally]
Bill Watch 32/2013 of 26th July - Special Voting Debacle Prompts ZEC
Constitutional Court Application 
Bill Watch 33/2013 of 29th July - Possible Implications of Constitutional
Court Giving Special Voters a Second Opportunity to Vote 
Court Watch 12/2013 of 3rd September - Part II of Pre-Referendum &
Pre-Election Challenges - Cases to Postpone Election Date [detailed coverage
of various challenges to the election date] 
Court Watch 13/2013 of 4th September [Part III of Pre-Referendum &
Pre-Election Challenges - Nomination Court Cases + Party Funding Case 
Court Watch 14/2013 of 5th September [Part IV of Pre-Referendum &
Pre-Election Challenges - Voting Rights, Special Voting and Voters Roll
Cases 
Dismissal of Mr Tsvangirai's Presidential election petition  
In the immediate aftermath of the election, the Constitutional Court's
dismissal of  Mr Tsvangirai's election petition challenging Mr Mugabe's
election as President was also covered in: 
Bill Watch 39/2013 of 18th August - Tsvangirai Election Petition Withdrawn:
Constitutional Court Sitting Monday 19th August 
Bill Watch 40/2013 of 20th August - Constitutional Court Declares Mr Mugabe
Elected President. 
Petitions Lodged
In terms of the Electoral Act every election petition had to be lodged with
the Electoral Court no more than 14 days after the announcement of the
result concerned at constituency or ward level.  This meant that the
deadlines for lodging were 14th to 16th August 2013, depending on the
announcement date.  
101 petitions were lodged, of which:
.        95 came from MDC-T candidates
.        6 came from ZANU-PF candidates.
Most of these were either: 
.        withdrawn by the petitioners on various grounds, discussed below;
or 
.        dismissed by the Electoral Court for procedural reasons [these
cases will be detailed in Part II].
Of the 101 original petitions, only two have survived:  the petitions
contesting the Mount Pleasant result in the case of Jameson Timba v Jaison
Passade and the Kwe Kwe Central result in Blessing Chebundo v Masangano
Matambanadzo.
The decisions in these two outstanding cases  are still to be announced -
despite the passing in mid-February of the Electoral Act's six-months
deadline for the handing down of final decisions.
Difficulty in Getting Information on Election Petitions
After the initial flurry of announcements of over a hundred petitions being
lodged, a great number of the cases were withdrawn.   It was difficult
getting accurate information from political parties and their lawyers about
which cases were going ahead.  After the courts had handed down decisions
dismissing petitions, it was difficult getting copies of the Electoral Court
judgments.  As the whole process of an election includes any challenges to
the results, it should be easier to get official information about their
progress if the electoral process is to be truly transparent.
Withdrawal of Electoral Petitions
Section 178 of the Electoral Act allows a petitioner to withdraw his or her
petition at any time, but stipulates that if a petition is withdrawn, the
petitioner is responsible for paying the costs of the respondent.  
Many 2013 election petitions were withdrawn citing the following grounds:
1.  Inability to raise security deposit
The MDC-T was able to fund the essential security deposits for only 39 of
the 95 cases originally lodged by its candidates.  The party selected the
cases most likely to win for party funding.  Other petitioners were left to
fund their own court cases, which resulted in most of the other 56 cases
having to be withdrawn
Cash security deposits a statutory requirement   Section 168(3) of the
Electoral Act provides that "not later than seven days after the
presentation of the election petition, security of an amount fixed by the
Registrar of the Electoral Court, being not less than the amount prescribed
by the Commission after consultation with the Chief Justice, for the payment
of all costs, charges and expenses that may become payable by the
petitioner, (a) to any person summoned as a witness on his or her behalf,
and (b) to the respondent, shall be given by or on behalf of the
petitioner."   The minimum deposit prescribed by the Commission [i.e., the
Zimbabwe Electoral Commission] was $500 [see SI 87/2013], but the required
amount fixed by the Registrar was $10000 in cash.  MDC-T spokespersons and
lawyers criticized this amount as prohibitive.  Former Senator Obert Gutu,
outgoing MDC-T Deputy Minister of Justice and Legal Affairs and a senior
legal practitioner, said that an amount of $2000 per petition would have
been sufficient and fair. 
2.  Non-availability of the Electronic Voters' Roll 
On the very eve of the harmonised elections Justice Mafusire had refused
MDC-T's application to order ZEC to produce soft copies of the roll to be
used in the harmonised elections on the strength of evidence from the
Registrar-General's Office that an equipment malfunction prevented
production of such copies.  After polling and announcement of results the
position remained unchanged: both ZEC and the Registrar-General continued to
maintain that equipment malfunction made production soft copies of the roll
impossible.   
Faced with this situation, some petitioners withdrew their petitions.   They
believed it pointless to continue without the electronic voters roll, which
they saw as essential to allow expert analysis of the roll to support
allegations of vote-rigging.  
Note: In December Registrar-General Mudede, giving evidence before Justice
Bhunu in Mr Timba's case, testified that the equipment essential to
producing copies of the roll had still not been repaired or replaced.   
3.  Petitions Withdrawn for Procedural Reasons 
Failure to comply with mandatory procedural provisions led to the withdrawal
of other election petitions.  Most withdrawals were prompted by the
realisation that success was ruled out by decisions already handed down in
cases dismissed by the Electoral Court for procedural faults, i.e., failure
to comply with procedural requirements of the Electoral Act or the rules of
court [SI 74A/1995]  [these cases will be covered in Court Watch 7/2014].
The cases are listed below under headings indicating the reasons for
withdrawal as far as Veritas has been able to ascertain them:
Copy of petition not served timeously on respondent
The following petitions were withdrawn because they had not been served on
the respondents within 10 days after lodging the petition, as required by
section 169 of the  Electoral Act:
Takanayi Mureyi v Ezira Ruvai [Masvingo West]
Davies Shoko v Chiratidzo Iris Mabuwa [Mberengwa South]
Tinashe Gumbo v Joram Macdonald Gumbo [Mberengwa West]
Michael Costas Timveos v John Holder [Zvishavane-Ngezi]
Chinyere Joshua v Dorothy Mhangami [Gokwe]
Emmanuel Sibanda v Jeffrey Moses Runzwirai [Gokwe-Sesame]
Anadi Sululu v Mtokozisi Mpofu [Silobela]
James Gumbi v Samson T Mukanduri [Zaka East]
Jaison Andrew Matewu v Oliver Mandipaka [Buhera West]
Not providing contact details of persons accused of electoral malpractices 
Kudakwashe Mandishona v Isaac Mackenzie [Kariba]
The matter was set down for hearing on 18th August before Justice Makoni.
After hearing argument on preliminary issues the judge referred it for
trial. Later the respondents raised the point that petitioner had not given
the addresses of persons he accused of electoral malpractices, in breach of
rule 21(f) of the rules of court, which calls for names and addresses of
such persons to be stated in the petition.  Justice Makoni referred the
petition to Justice Bhunu for determination, as he had already dealt with
the rule 21(f) issue when dismissing other petitions, for example, Tracy
Mutinhiri v Jeremiah Chiwetu.  On 25th November, to save court time and
costs, the petition was withdrawn by the petitioner before set-down for
trial.
Also withdrawn for this reason were the following petitions, the first two
later in November, the last three on 20th December:
James Iain Hamilton Kay v Ray Kaukonde [Marondera Central] 
Misheck Tofamangwana Kagurabadza v Irene Zindi 
Dusty Zivave v Darlington Chiwa [Chiredzi West]
Patrick Tsumele  v Calisto Gwametsa [ Chiredzi South]
Lovemore Matongo v Walter Mzembi [Masvingo South]
Failure to comply with unspecified procedural rules
Jacob Mafume v Shadreck Mashayamombe [Harare South]
Patrick Sagandira v Patrick Chinamasa [Makoni Central]
Pishai Muchauraya v Mandi Chimene [Makoni South]
Piniel Denga v Felix Mhona [Chikomba Central]
Voice Chinake v Christopher Mutsvangwa [Norton]
Fidelis Mugari v Walter Chidhakwa [Zvimba South]
Julius Magarangoma v William Mutomba [Buhera North]
On 26th November these petitions were withdrawn before the hearing.  The
reason for this was that there was no prospect of success, as the petitions
breached the rules of court in one or other of the ways leading to cases
being dismissed by Justice Bhunu in the preceding few days. 
Difficulties over witnesses and/or legal fees
The following petitions were withdrawn because of difficulties in obtaining
the necessary witnesses and/or raising funds to pay legal fees:
Tobias Tapera v Wonder Mashanade [Rushinga]
Jackson Dube v Alfred Maliki [Muzarabani North]
Leman Pwanyiwa v Joseph Mapiki [Shamva South]
Lovemore Moyo v Never Khanye [Matobo North]
Reasons for withdrawal not known
Erick Knight v Tendai Savanhu [Mbare]
Ezra Sibanda v Josphat Madubeko [Vungu]
Coming in Part II: Petitions Dismissed by the Electoral Court


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