[Bill-Watch] Court Watch 13/2014 of 5th August [Cases in the Constitutional Court 2: Cases 11-15: July & August 2013]

[Veritas Bill Watch]

COURT WATCH 13/2014
[5th August 2014]
Record of Cases in the Constitutional Court 
2:  Cases 11 to 15:  18th July to 20th August 2013
In this bulletin we continue our summaries of cases that have come before
the Constitutional Court since its inception on 22nd May 2013.   Part 1 was
distributed as Court Watch 12/2014, which ended with case number 10, heard
and decided on 4th July 2013.  This bulletin, Part 2, starts with case 11
heard later in July, when the court was still grappling with cases about the
31st July elections, and ends with case 15, heard on 19th and 20th August:
Mr Tsvangirai's election petition challenging Mr Mugabe's election as
President, which was the last of the election-related cases. 
The cases are listed chronologically by date of hearing.  The Constitutional
Court's case number is in brackets immediately after the names of the
parties.  References are provided to discussion in other Veritas bulletins.
Case Summaries
11.       18th July 2013: Ignatius Masamba v Minister of Justice and ZEC.
[CCZ 42/13]  ZEC'S alleged failure to publicise the nomination process.
[Ref: Court Watch 13/2013]  The applicant, a would-be candidate for election
as President, complained that the Minister and the Zimbabwe Electoral
Commission [ZEC] had failed to provide prospective candidates with
information on nomination fees and failed to provide adequate notice of the
date on which nomination papers were to be filed.  But he failed to specify
the constitutional rights he claimed to have been breached and
constitutional duties not carried out.  The court ruled there was no cause
of action under the Constitution and dismissed the application.  [Judgment
awaited]
12.       18th July 2013: Pushe-Bar Bere v ZEC and ZEC Chairperson.  [CCZ
48/13]  Appeal against rejection of nomination.  [Ref: Court Watch 13/2013]
Ms Bere complained that she lodged all her documents for nomination with the
presiding in officer in Ward 19, Makonde, but received a call later in the
day from the presiding officer informing her that a photograph was missing
from her documents.  She went back to the nomination court at 5:15 pm to
submit the missing photograph but was told that she could not do so as the
nomination court sitting had ended at 4 pm.  The court pointed out that she
had not exercised her right to take her complaint to the Electoral Court in
terms of the Electoral Act, something that should have been done within four
days of the sitting of the nomination court.  That being so, no
constitutional cause of action was raised by her application, which was
accordingly dismissed.  [Judgment awaited]
13.       26th July 2013: Zimbabwe Electoral Commission and ZEC Chairperson
Rita Makarau v the Commissioner General of Police, the Commissioner General
of Prisons, the Commander of the Defence Forces, the GPA political parties
and 16 others.  [CCZ 64/13]  Second opportunity to vote for Special Voters.
[Ref: Bill Watch 32/2013, 33/2013]  Special voting on the 14th and 15th of
July was marred by confusion and disorganisation which resulted in more than
26 000 members of the uniformed forces failing to cast their votes. On 23rd
July, ZEC made an urgent application to the Constitutional Court seeking an
order that would allow special voters who were not able to vote on the
designated special voting days to vote on 31st July.  The application was
heard on 26th July; on the same day the court granted the application,
ruling that ZEC should take all necessary steps to ensure that officers
under ZEC's employ and members of the uniformed forces who had failed to
cast their votes on 14th and 15th July should be authorised to do so on 31st
July.  [Judgment awaited]
14.       26th July 2013: Michael Kudakwashe Chideme, Zvamaida Murwira and
the Zimbabwe Union of Journalists v ZEC, the President, The Minister of
Justice and the Attorney General.  [CCZ 61/13] Journalists' request for
early voting privileges.  [Ref: Court Watch 14/2013]  The applicants, all
journalists, argued that because they would be deployed in various areas
away from their constituencies on polling day, they should be granted a
special vote in terms of section 81 of the Electoral Act allowing them to
vote a day before general polling.  The application was dismissed.
[Judgment awaited]
15.       19th/20th August 2013: Morgan Richard Tsvangirai v President
Mugabe, the Zimbabwe Electoral Commission, the ZEC Chairperson and the ZEC
Chief Elections Officer.  Presidential Election challenged.  [CCZ 71/13]
[Ref: Bill Watch 39/2013, 40/2013]  On 9th August 2013, Mr Tsvangirai lodged
an election petition in the Constitutional Court challenging the
Presidential election result, and seeking an order setting aside the
Presidential election as invalid and calling for a fresh election.  Late in
the afternoon on 16th August Mr Tsvangirai lodged a notice of withdrawal of
his petition and issued a statement explaining that it was impractical for
him to proceed because the Electoral Court had unduly delayed dealing with
his separate application to be allowed access to electoral material held by
ZEC for the purposes of his petition.  
On 19th August, the Constitutional Court, citing section 93 of the
Constitution providing that the Constitutional Court must "hear and
determine a petition lodged", ruled that a hearing and determination were
essential.  Mr Tsvangirai's counsel then confirmed his client's withdrawal
and there was a brief contribution from the President's lawyer.  
On 20th August the court unanimously dismissed Mr Tsvangirai's petition,
declared President Mugabe duly elected and, for good measure, declared that
the harmonised elections had been free and fair and conducted in accordance
with the Constitution and the Electoral Law.  Mr Mugabe was duly sworn in as
President two days later. 
[The official court document containing the court's order and its
explanatory statement, is available.  No further judgment is expected.  ] 
Coming in Part 3
This bulletin summarises only five cases, because the next few cases need to
be discussed together and if covered in this bulletin would make it too
long.  These cases involve freedom of expression, including press freedom,
and the summaries have had to be updated to incorporate notes on the effect
of recent Constitutional Court judgments in two of the cases.  They will be
summarised in the next bulletin in this series, which is Part 3.  
 
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