THE landmark hearing into opposition Movement for Democ
ratic Change (MDC) leader Morgan Tsvangirai’s court petition against President Robert Mugabe’s disputed re-election in March last year is expected to open a can of worms.
The hearing has been set for November.
Court documents show that the lawyers for the two rivals agreed at a pre-trial conference on November 18 and December 2 last year to pore over the case to determine if the election was rigged or not.
After nearly 15 months of procrastination, the High Court last week set November 3 as the date for the opening of the trial. The case will be a direct challenge to Mugabe’s withering political fortunes and the country’s murky electoral institutions.
Mugabe finds himself in a worse-off position than before last year’s election. Before the break-and-enter poll, his legitimacy was not in question, at least from an election point of view, but now he is regarded as an illegal or de facto president.
With loud speculation about his intention to retire soon, the election petition couldn’t have come at worse time for the septuagenarian leader who wants to be portrayed as a paragon of virtue. The high profile case should focus international attention on the abuses of power that might have far-reaching ramifications for Zimbabwe.
The subjection of section 158 of the Electoral Act, under which Mugabe allegedly modified poll regulations to suit his interests, to a constitutional test will take precedence in the examination of evidence. The court will try to establish whether this section is constitutional in the first place and if the regulations Mugabe promulgated under the provision were ultra vires the constitution.
If so, the court would consider whether “that affords a basis on its own to set aside” Mugabe’s election. It would also try to ascertain if Tsvangirai has locus standi (legal basis) to challenge the constitutionality of section 158 of the Electoral Act.
Another issue to be considered during the hearing would be whether the High Court has “jurisdiction to rule on a matter relating to a breach of the Declaration of Rights of the constitution”. Tsvangirai’s lawyers claim Mugabe undermined their client’s rights through allegedly extra-legal actions in the run-up to the crucial poll.
The court would further examine the effect of the nullification by the Supreme Court of the General Laws Amendment Act under which some electoral regulations were made.
Mugabe circumvented the Supreme Court ruling by using his powers under the Electoral Act to bring back electoral regulations contained in the nullified general amendments.
The composition of the Electoral Supervisory Commission (ESC) would also be scrutinised to find out whether it complied with the constitution and if not, its bearing on the validity of the poll outcome.
The extension of election dates in Harare and Chitungwiza would be discussed to see if it was “in accordance with the principles of the electoral law” and whether this affected the “conduct and the outcome of the election to the extent that the election can be set aside”.
Issues concerning polling stations, postal votes, registration of voters, voters roll and the supplementary voters roll, and political violence will also be examined to determine if their impact on the poll constituted electoral manipulation and fraud in favour of Mugabe.
The results of the presidential poll, which Mugabe won by about 400 000 votes, came as no surprise to many. Observers witnessed the violent political crusade and build up to Mugabe’s contentious victory, which Tsvangirai described as “daylight robbery”.
International observers, inclu-ding the Commonwealth observer mission, the Southern African Development Community Parliamentary Forum group, the Swedish observer team, the Japanese delegation, the United States and the European Union rejected the election as a fraud.
Ghana and Senegal, among other African countries, also said the poll was fraudulent.
Despite claims to the contrary by Mugabe’s supporters, everyone following the election closely saw what happened and agreed that the election was rorted (stolen with cheek).
In a sweeping wave of repression before the poll, the courts and judges were intimidated, electoral agencies turned into a gallery for Mugabe’s followers, and the countryside — where Zanu PF holds sway — was sealed to the MDC. Violence was perpetrated extensively to coerce voters to support Mugabe. Opposition supporters and those who resisted Zanu PF were subjected to brutal attacks that left thousands either dead or maimed.
The main voters roll and the supplementary register were mani-pulated to ensure the numbersfavoured Mugabe. The recorded increase of purported votes for Mugabe in rural areas — if the counting was a true reflection of the actual distribution of votes — was less a sign of support for the Zanu PF candidate than the success of the repression and terror strategy.
The whole surrealistic drama was more than anything else an emasculation of the popular will through officially orchestrated violence and monopoly, and attendant abuses thereof, of the state machinery.
There were months of systematic efforts by Zanu PF to reduce opposition votes through manipulative measures that were aimed at excluding certain voters, especially those of foreign descent as they were suspected of supporting Tsvangirai.
The disenfranchisement of the voters — along racial and ethnic lines — was in itself a serious misrepresentation of the people’s choice well before the election took place. The deliberate elimination of willing voters effectively disqualified the election as democratic, let alone free and free.
State security agents, police, army and intelligence officers, were illegally deployed to electoral agencies, although this was later rectified through arbitrary backdated legislation, to ensure that a predetermined outcome was secured.
Dramatic pay increases were granted to security forces prior to the poll to buy their loyalty. Laws were changed willy-nilly to further tilt the already skewed playing field in Mugabe’s favour.
In the end, Mugabe benefited from this calculated pre-election build up which eroded the electoral process and secured him a Pyrrhic victory. Zimbabweans only voted or, to be more precise, Mugabe held a pseudo-election on his own terms and conditions to make sure there was only one guaranteed winner — himself.
As a result, Mugabe, together with other respondents, seems intent upon blocking the due process and Tsvangirai’s quest for justice.
Mugabe’s co-respondents, Registrar-General Tobaiwa Mudede, Justice minister Patrick Chinamasa and the Electoral Supervisory Commission, have so far refused to make full disclosure of critical information. They have withheld crucial documents that are needed in the case despite the fact they had initially agreed at last year’s pre-trial conference.
Mudede, accused of helping Mugabe to rig the poll, has failed to bring the electoral materials to Harare as stipulated under the Electoral Act although court orders have been issued against him and Chinamasa for them to comply with the law.
MDC legal affairs secretary David Coltart said the behaviour of the respondents showed that they wanted to impede the due process and justice. “This can only raise suspicion in the minds of all reasonable people that they have things to hide,” he said.
Coltart said notwithstanding these stumbling blocks his party “remains committed and determined to press ahead with the case and is confident that justice will ultimately prevail”.
Whatever happens in court, the case will set a precedent for Zimbabwe. Its outcome will either legitimise Mugabe or set the country on the path to democracy. Only time will tell.