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Tsvangirai opens electoral legal battle

Dumisani Muleya

THE international spotlight will soon fall on Zimbabwe when opposition Movement for Democratic Change (MDC) leader Morgan Tsvangirai opens his legal battle against President Robert Mugabe ove

r last year’s disputed presidential election.

Tsvangirai’s lawyers, led by South African Advocate Jeremy Gauntlett, filed their legal heads of argument against Mugabe on October 13. They raised a wide range of issues to be contested when the case opens in the High Court on November 3.

Tsvangirai filed his case against Mugabe on April 12 last year and also cited Registar-General Tobaiwa Mudede, Justice Minister Patrick Chinamasa and the Electoral Supervisory Commission (ESC) as respondents. But the High Court this week granted Mudede and Chinamasa an order to be removed as respondents, saying they were improperly cited in the case.

They could only be called as witnesses, it said.

The ESC was also trying to do the same but MDC lawyers have said even if the commission were to be removed as a respondent, they would proceed to show that it was not lawfully constituted, which should invalidate the election.

MDC attorneys say that Mugabe became “legislator plenipotentiary and exercised powers to his own advantage in an election in which he was a candidate”. The ESC was not validly constituted and laws were manipulated in the incumbent’s favour, they say. Violence and intimidation of the electorate will also be brought up.

“Tsvangirai will argue Section 158 of the Electoral Act is unconstitutional, and that this invalidates the 2002 presidential election because the conduct and outcome of the election was strongly influenced by regulations made under that section,” the lawyers say.

“Sections 28, 58 and 113 of the constitution make it clear that the electoral law governing the conduct of presidential and parliamentary elections must be passed by parliament.”

Section 158 of the Electoral Act gives Mugabe the power to amend electoral law but MDC lawyers say by “unconstitutionally delegating parliament’s legislative power to the president, the provision is invalid, and any regulations made under it also invalid”.

Mugabe made numerous changes to the electoral law in the run-up to the poll, in some cases a day before the election, which Tsvangirai alleges were designed to manipulate the outcome.

MDC attorneys say one of these modifications overturned a Supreme Court ruling that had declared the General Laws Amendment Act unconstitutional. The law had amended the electoral legislation.

Tsvangirai will argue that some of the changes disenfranchised a “large number of Zimbabwean citizens who were declared to be ‘foreign’ citizens”, deprived certain categories of postal voters of their right to cast the ballot, and limited the number of polling stations in urban areas where he was strong.

He will also say Mugabe’s regulations “repeatedly and secretly extended the cut-off date for voter registration, thus allowing late registration of voters in areas sympathetic to Mugabe”.

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