By Chris Mhike
IS the ruling Zanu PF party’s current tenure in government legitimate? This has become an open-ended question. The answer, at best, could be: “Maybe
, maybe not.”
Unfortunately for the Zanu PF government, the recent Supreme Court judgement, which invalidated Chief Justice Godfrey Chidyausiku’s 2005 Electoral Court appointments, entrenches the ruling party’s nefarious status as an illegitimate and rogue regime.
The subject judgement arose from an application that was made last year by Claudious Marimo, a “losing” candidate in the March 2005 parliamentary election and by the party that sponsored his candidacy — the Movement for Democratic Change (MDC) — against four respondents.
These respondents were the Minister of Justice, Legal and Parliamentary Affairs, the Attorney-General, the Chief Justice and Herbert Murerwa (Finance minister and “winning” candidate in the Goromonzi constituency).
An Electoral Court had been created at the High Court under the newly promulgated Electoral Act to accommodate any petition from the parliamentary elections.
The applicants contended that the Electoral Court was improperly constituted. This was so, firstly, because the court’s judges had been appointed ineptly by the Chief Justice. Secondly, because the Act under which the court had been created was inconsistent with the constitution of Zimbabwe.
On July 25 2006, Justices Maphios Cheda, Vernanda Ziyambi, Wilson Sandura, Elizabeth Gwaunza and Griffiths Malaba unanimously decided that the applicants’ contentions were valid; that the manner in which judges were appointed to the Electoral Court in 2005 was unconstitutional and invalid.
Such invalidity therefore means that all petitioners and other losing candidates from the 2005 elections were denied a free and fair chance to challenge the outcome of the 2005 parliamentary election. It means that if there was in any constituency, an illegal and fatally flawed ascendancy to the legislature, the beneficiary of such irregularity got away with murder.
It means that the credibility of Zanu PF’s so-called victory in the 2005 election is now at stake — more prominently than it has ever been over many recent years.
Indeed, Zanu PF’s legitimacy crisis did not commence only after the delivery of this progressive judgement. After the 2000 parliamentary election, Zanu PF fell into the trenchant legitimacy crisis as opposition parties, local and international observers, churches and an array of individual and organisational citizens declared that the poll had been rigged.
The crisis deepened after the 2002 presidential election when President Robert Mugabe was declared the victor against the MDC’s Morgan Tsvangirai. A body that depended on the ruling party for its own formation, existence, sustenance and future administered that election.
The March 2005 parliamentary election revived Zanu PF’s crisis as the ruling party barred all credible international observers, used the uniformed forces and senior civil servants in conducting the poll and then declared itself the winner of the poll. It disastrously claimed a two-thirds parliamentary majority.
The most glaring testimony to the implausibility of Zanu PF’s “victory” arose from the discrepancies in the Zimbabwe Electoral Commission (ZEC) figures. ZEC’s voting pattern statistics on March 31 2005 differed significantly from its final proclamations on April 2 2005.
For instance, in the Makoni North constituency, the final ZEC results attributed 18 910 votes to Didymus Mutasa of Zanu PF and 6 077 to Elton Steers Mangoma (MDC), thus a total of 24 987 voters for the two candidates. Yet in its initial announcement, ZEC had stated that a total of 14 068 voters had cast the ballot in Makoni North, thus a discrepancy of 10 919 votes.
This figure far exceeded the difference in the number of voters with which Mugabe claimed victory over Tsvangirai in the disputed 2002 presidential election. Yet the 2005 discrepancy was not recorded only in Makoni North. Numerous other constituencies were victims of similar ZEC bungling.
Just before the 2005 poll, political parties, citizens and civic organisations had expressed their dissatisfaction with the manner in which the Justice George Chiweshe-led Delimitation Commission had delimited constituencies for the election.
The dissenting or concerned voices were never given an ear by the government in 2000, 2002 or in 2005.
It is clear therefore from the foregoing that the ruling party could not lay claim as the indisputable winner of the 2000, 2002 and 2005 elections.
In the aftermath of the 2005 parliamentary elections, the MDC filed 16 petitions to contest the results. Soon after filing the petitions with the Electoral Court, it became apparent that Justice Chidyausiku had improperly appointed judges to the Electoral Court. It was clear then that the primary problem arose from the Electoral Act itself, which was unconstitutional.
Opposition parliamentarians and commentators had, before the enactment of the Electoral Bill, pointed out the unconstitutional and undemocratic nature of the proposed statute. But Zanu PF, in its usual fashion, refused to listen. Its members of parliament went on to vote for the enactment of the dangerous Bill, and President Mugabe signed the farcical document to turn it into law.
When the time came for the electoral petitions to be heard, the petitioners’ lawyers advised the Chief Justice and the Electoral Court “judges” that their appointments could not stand. The warnings fell on deaf ears.
At least the Chief Justice tried to listen. On May 5 2005 and acting in terms of s162 (1) of the Electoral Act, he had appointed five High Court judges to the Electoral Court.
After the challenge had been launched, the Chief Justice wrote to the judges on June 1 2005 therein acknowledging the illegality of his appointments of May 5 2005. In that letter of June 1, he revoked the previous appointments and purported to make fresh assignments, saying he had then consulted the Judge President and the Judicial Service Commission.
But the fresh appointments were still invalid because there was no Act of Parliament authorising the Chief Justice to appoint Electoral Court judges after consulting the Judge President and the Judicial Service Commission.
The petitioners’ lawyers brought this fact to the attention of the judges sitting as the Electoral Court, but like the Zanu PF parliamentarians, like the president, like ZEC, like everyone else in the establishment, the Electoral Court “judges” were obstinate. They went ahead and made determinations.
Because the judges were improperly appointed to the Electoral Court, their determinations have come to naught. Without a valid law in place for the constitutional appointment of judges to the Electoral Court, and without any competent Electoral Court in the country, we now have a lacuna in the law of elections.
The Zanu PF government’s crisis of legitimacy has deepened. There isn’t any Electoral Court to confirm its claim to electoral victories. No court to confirm its legitimacy. The ruling party’s crisis of legitimacy has indeed been rekindled.
Parliamentary incumbency in the 16 constituencies over which petitions were raised remains contentious.
The two-thirds majority that was used in passing the ridiculous 17th Constitutional Amendment has become controvertible again. For how could people whose election to parliament is still subject to scrutiny and possibly reversal thereafter be part of a “majority” that determines the future of this country?
The legitimacy of all structures and systems that were established after the 17th Constitutional Amendment is now seriously doubtful.
The senate, the “reconstituted” Zimbabwe Electoral Commission, post-election laws and all other issues arising from the amendment could well fall into that realm of vacuity. This because they are creatures of a dubious “two-thirds” majority.
Until this void is fixed, and until sound answers are given to these critical questions, Zanu PF’s legitimacy crisis prevails.
* Chris Mhike is a Harare-based legal practitioner.