[Bill-Watch] Court Watch 9/2014 of 11th June [Electoral Court & Election Petitions: Part IV : Jameson Timba's Petition]

[Veritas Bill Watch]

COURT WATCH 9/2014
[11th June 2014]
Post-July 2013 Election Petitions:  Part IV
Jameson Timba's Petition [Mount Pleasant Constituency]
This bulletin is the fourth in our series on the election petitions that
were filed in the Electoral Court after last year's harmonised elections.
Parts I, II and III appeared in Court Watches 6, 7 and 8/2014.  This part
covers the story so far of the challenge launched by MDC-T's Jameson Timba
against the election result for the National Assembly Mount Pleasant seat in
Harare.  
Introduction
Timba held the seat for the Mount Pleasant constituency in the previous
Parliament.  In the 2008 election he won the seat, polling 3875 votes to the
1738 received by the ZANU-PF candidate, and was subsequently appointed a
Minister of State in the inclusive government.  In the 2013 harmonised
election, however, the ZANU-PF candidate, Jaison Passade, was declared the
winner of the seat; at constituency level it was announced that Mr Passade
had received 10333 votes and Mr Timba 6893, but the ZEC national command
centre said Mr Passade had gained 7945 votes and Mr Timba 3817 votes.  
Dissatisfied with the way the election had been conducted, Mr Timba brought
three separate but related cases to the Electoral Court in a campaign to
challenge the Mount Pleasant result in the Electoral Court:
.        two applications seeking court orders for access to sealed packets
of material relevant to the Mount Pleasant election, held by the Zimbabwe
Electoral Commission [ZEC]
.        on 16th August, the election petition itself, in which he
challenged the election result and asked for it to be set aside and a fresh
election ordered.
These cases are outlined in more detail below, starting with the two
applications. 
The Two Applications for Sealed Material Held by ZEC
The pre-petition application: dismissed as premature 
On 12th August, before lodging his election petition, Mr Timba made an
urgent chamber application seeking a court order compelling ZEC to produce
the "election residue", i.e., the sealed packets of voting records for the
constituency, including the lists of all people who had voted and those who
had used voting slips.  Mr Timba believed this material would show the
irregularities and inconsistencies he alleged had occurred during the
election in the constituency.  
Justice Mafusire dismissed the application, accepting ZEC's argument that
the Electoral Act required Mr Timba to first file an election petition
before approaching the Electoral Court for access to the election residue.
[Note: Section 70 of the Electoral Act provides that no-one may open the
sealed packet containing election residue except in terms of an order of the
Electoral Court, which may only be granted if the court is satisfied that
inspection of the residue is required for the purpose of an election
petition or for a prosecution for an electoral offence.]
The post-petition application: Supreme Court appeal hearing due 12th June
After the filing of the petition and after Justice Bhunu's 6th December
decision that it should go to trial, a fresh application for the election
residue was filed.  Justice Mavangira dismissed it on 9th January, pointing
out that the harmonised nature of the election meant that any opening of the
sealed packets of election residue would necessarily reveal information
about the Presidential election [something only the Constitutional Court
could permit] and the city council election [which had not been challenged].
Justice Mavangira said the Electoral Act was at fault to the extent that it
failed to provide for separation of election residue for different elections
at the same polling station.  [Soft copy of judgment available from the
addresses at the end of this bulletin.]  Mr Timba noted an appeal against
this decision.  The appeal is due to be heard in the Supreme Court on
Thursday 12th June at 9.30 am.  
The Election Petition
Preliminary issues  On 13th November Justice Bhunu heard argument on
preliminary objections raised by Mr Passade, including a submission that the
allegations made in the petition were not sufficient to justify a trial.  On
6th December Justice Bhunu dismissed these objections and ordered that the
trial of the petition would start on 3rd February, only two weeks before the
statutory deadline for his final decision on the petition [Soft copy of
judgment available from the addresses at the end of this bulletin.].  
Mr Timba's evidence  Mr Timba was the first witness in support of his
petition.  His testimony covered:
Irregularities during Special Voting Exercise, 14th-15th July 2013  Special
early voting for members of the security forces took place on 14th and 15th
July.  Mr Timba alleged that the irregularities that occurred during special
voting must have affected the election result.  For instance, senior police
officers, using their own lists, had marshaled would-be voters who had then
been allowed to vote without ZEC officials checking them against the voters
roll; at Mount Pleasant Hall the ZEC presiding officer re-opened polling in
the early hours of 16th July, long after the polling station had closed, to
allow a busload of alleged police officers to vote.  Mr Timba's formal
written request to ZEC asking for the list of names of those who had been
authorised to cast special votes was denied, so he had no way of telling if
the persons who had been allowed to vote on the say-so of senior police
officers were bona fide registered voters in the constituency.  In addition,
in breach of the Electoral Act provision for separate counting of special
votes, at two collation centres the special votes had been mixed with the
ordinary votes during the counting process. 
Outsiders wrongly registered on Mount Pleasant voters roll  Mr Timba
testified that there were people who resided in Eastlea who were registered
on the Mount Pleasant Voters roll. Police and army officials from Cranborne
in Harare Central Constituency, ZRP Highlands in Harare East Constituency,
Imbizo Barracks in Umguza in Matabeleland North Province, ZRP Camp Chivi
Growth Point in Chivi and ZRP Norton were all registered in Mount Pleasant;
also, members of the Presidential Battalion residing at Dzivarasekwa
Township were registered to vote in Mount Pleasant.  More than 3000 people
on the roll had given the Zimbabwe National Army HQ staff quarters as their
place of residence, compared to 667 in 2008, even though the physical
structures there had not been extended since 2008.  
Bussing of voters   Mr Timba testified that some persons bussed in from
outside had been allowed to vote, although not on the voters roll.
Evidence of Registrar General of Voters  Registrar-General Mudede insisted
that the electronic voters roll, in a format that allowed it to be analysed
and searched, had been available to all political parties and to anybody
else who requested it, until the vital server broke down, which was after
the registration period had closed, and just before his office was supposed
to distribute the voters roll to the provinces.  His office had no funds to
replace the equipment.  Until it was repaired or replaced, the voters roll
data could not be printed or accessed.  His office had no electronic back-up
of the voters roll.  But, he said, the hard copy of the voters roll had been
available throughout.  Mr Mudede said Israeli firm Nikuv had been hired as a
consultant during compilation of the voters roll, but only to source
equipment which was then manned independently, with his office retaining
complete control over the server and the voters roll.  
Evidence of ZEC Chief Elections Officer  Mr Sekeramayi agreed that Mr Timba
had not been given the list of authorised special voters for Mount Pleasant,
but pointed out that public notice had been given in the press on 2nd July
inviting all those interested to come and observe the processing of
applications for special votes. 
He claimed that not having the electronic voters roll was of no consequence
to a candidate because the hard copy of the voters roll had been made
available to all the candidates and the candidates could have come and
checked on ZEC's electronic voters roll if they wanted to see if their
supporters were indeed registered. He was unable to say whether polling
stations in the constituency had been equipped with ultra-violet detectors
to prevent double voting. 
Evidence of ZEC Chairperson  Justice Makarau said Mr Sekeramayi, being
responsible for operational matters, would know more than she did on the
voters roll aspect.  She stressed that all parties had been equally
disadvantaged by not having access to the electronic voters roll.  She
confirmed that she had responded to Mr Timba's complaints about registration
of suspected non-residents by saying ZEC had no power to amend voter
registration.
Evidence of Tendai Biti  MDC-T Secretary-General Tendai Biti described what
he had observed during polling in the constituency, supporting Mr Timba's
evidence and the videos already produced.  On bussing-in of outsiders, he
described seeing two ZUPCO buses with blankets and fast food boxes inside
and talking to people standing in the queues who could not name a single
street in Mount Pleasant and were obviously not genuine Mount Pleasant
residents.  He also mentioned abuse of voter registration slips people being
allowed to vote without producing identity documents, and the absence of
ultra-violet testers to check on double voting.  
Judgment on Petition Reserved
On 3rd March Justice Bhunu heard the closing arguments from both parties on:
.        the merits of the petition, i.e., whether Mr Timba had succeeded in
proving grounds for setting the election aside.
.        the effect on the proceedings of the failure to meet the
mid-February statutory deadline [in terms of section 182 of the Electoral
Act] for determination of the petition.  Mr Timba's lawyer argued the
deadline provision should not be interpreted to mean that the case could not
be finalised.  Mr Passade's lawyer argued that that the petition had lapsed,
with the result that Mr Passade retained the National Assembly seat.
Justice Bhunu then reserved judgment on both issues.  His decision is
awaited.
Note: On 24th April, giving judgment on Blessing Chebundo's election
petition challenging the Kwekwe Central result, Justice Mutema expressed the
following view on the effect of his having heard the case after the expiry
of the six-month statutory deadline:  
"During the hearing Mr Gijima broached a novel preliminary point, viz that
this petition should no longer be heard by virtue of not having complied
with section 182 of the Act since the required six month period within which
an electoral petition must be determined has lapsed. He interpreted the word
'determined' to mean finalised. . I have not been persuaded that that
interpretation is correct, on account of the fact that this petition was
affected by the various interlocutory applications launched not by the
petitioner but by the respondent. The result of such interpretation of the
law would wrought an absurdity not contemplated by the framers of the
statutory provision."
[Soft copy of judgment available from the addresses at the end of this
bulletin.]
 
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