Judicial problems in electoral cases exposed

Vincent Kahiya

OPPOSITION MDC leader Morgan Tsvangirai’s challenge to President Mugabe’s election victory in 2002 is now of mere academic interest as the incumbent has already served more than ha

lf his term.


Tsvangirai has filed at least half a dozen applications in a bid to get a speedier resolution of the case and his frustration with the country’s judiciary rings loud in his latest application heard in the Supreme Court last Thursday.


He brought the application to the appeals court after Justice Ben Hlatshwayo in June last year dismissed Tsvangirai’s High Court application without giving reasons. In fact Hlatshwayo had prior to the ruling reserved judgement for seven months and more than a year later now Tsvangirai is still waiting for the judge to provide reasons for his ruling.


The latest application exposes problems in the conduct of the judiciary in failing to deal expeditiously with electoral cases since the disputed general election of 2000 and the allegedly rigged presidential poll two years later.

There appears to be a trend developing in the judiciary where no reasons are given for rulings made, especially in politically sensitive cases.

Tsvangirai sees the failure by the court to give reasons as an infringement of his rights, hence the application to the Supreme Court.


But President Mugabe’s heads of arguments deposed on October 10 say the delay in issuing the reasons for the ruling does not violate Tsvangirai’s right to a fair hearing.


“It is submitted that having determined the existence or lack of these rights, the adjudicating authority was not required to provide reasons for this order,” Mugabe’s papers read.


Mugabe cites cases in apartheid South Africa and from the court of appeal in Vanuatu to bolster the notion that the court is not obligated to give reasons for its rulings. In the Vanuatu ruling, the judge noted: “The act that the giving of reasons may be regarded by a citizen as increasing the protection that the law provides does not mean that a failure to give reasons is a denial of protection …”


Mugabe avers that Tsvangirai’s rights have not been violated by the delay by the High Court in providing reasons for its ruling because the need for the court to give reasons is not provided for in the statutes.


“It is therefore submitted that as neither the constitution, the statutes nor common law require reasons to be provided by the High Court, this is not a fundamental right, and the deprivation thereof does not entitle the applicant to the relief claimed,” Mugabe said in his papers.


But Tsvangirai in his affidavit contested this averment, saying the failure by the court to provide reasons for its ruling takes away the right to appeal against that ruling.


“A right of appeal cannot sensibly be exercised if the reasons for the order are not disclosed,” he said. “The parties’ legal representatives cannot sensibly obtain instructions to appeal, or to defend on appeal, as the case may be, without these.


“They cannot sensibly show that the order is either right or wrong without the basis for it being disclosed. Their right to appeal itself is thus undermined.”

He said the duty to give reasons was “moreover, inherent in the constitutional function of the court”. He cites a ruling in the South African Constitutional Court in the Mphahlele v First National Bank of SA Ltd case which reads:


“There is no express constitutional provision which requires judges to furnish reasons for their decisions … Nonetheless … the rule of law is one of the founding values of our democratic state, and the judiciary is bound by it.

“The rule of law undoubtedly requires judges not to act arbitrarily and to be accountable. The manner in which they ordinarily account for their decisions is by furnishing reasons. This serves a number of purposes. It explains to the parties, and to the public at large which has an interest in courts being open and transparent, why a case is decided as it is.


“It is a discipline which curbs arbitrary judicial decisions. Then, too, it is essential for the appeal process, enabling the losing party to take an informed decision as to whether or not to appeal or, where necessary, seek leave to appeal.


“It assists the appeal court to decide whether or not the order of the lower court is correct. And finally, it provides guidance to the public in respect of similar matters.”


Tsvangirai says election petitions need to be dealt with urgently.


“The public at large need to know whether persons purporting to hold elected office were in fact duly elected to that office. Regrettably, the courts of Zimbabwe have failed to deal with the majority of the election petitions filed following the general election in 2000.”


But Mugabe regards Tsvangirai’s application as “frivolous and vexatious”. He says Tsvangirai’s petition was an “attempt to short-circuit the Electoral Act so as to give him a technical court victory to the highest office in the land.


“This he clearly knows cannot and will not happen…” Mugabe declared in the court papers.