Justice elusive in Zim courts

THE judgment of the Supreme Court in the case of Elliot Chauke versus Moses Mare (SC 147/04) is very interesting. It is a clear indication of what happened in the case of election petitions filed after the 2000 elections and what might well happen after the “harmonised” elections if Zanu PF is declared the winner.


The parliamentary elections in 2000 were held on June 24/25. After the elections 37 election petitions were filed, mainly by the MDC candidates. Justice Chidyausiku was the Judge President at the time. He allocated the cases to three judges of the High Court. He must have been aware of the fact that the Electoral Act provided that an election petition must be handled as a matter of urgency, and that in no way could three judges handle 37 cases in a short time.
Needless to say, the three judges did not start to handle any of the cases until the beginning of 2001, some six months after the elections. One of the first petitions to be heard was that brought by Moses Mare, the MDC candidate for the Chiredzi North constituency. Elliot Chauke, the Zanu PF candidate had been declared the winner and Mare thought that the election had not been free and fair. The petition was heard early in June and the judge concerned delivered her judgment on June 20 to the effect that Elliot Chauke was not duly elected as the member of parliament and that no other person was entitled to be duly elected.
Elliot Chauke had got 10 154 and Mare 8 765 votes in the contest. Mare filed his petition on July 24 2000, complaining of “irregularities and illegal practices”. The basis for the complaint was that the election result had been secured by means of assaults, threats of violence, arson and malicious injury to property perpetrated by war veterans and Zanu PF supporters led by Boniface Mutemachani on members of the electorate known or suspected to be MDC supporters. In the Supreme Court judgment the findings of the High Court judge Ziyambi, which were not challenged, were quoted. In the judgment Judge Ziyambi said:
“I find it proved that Chief Tshovanu was intimidated into gathering all the village heads at his residence to be addressed by Boniface Mutemachani and other war veterans to advise their families to vote Zanu PF or risk death.
The following MDC supporters and office bearers were assaulted or otherwise intimidated — Kudzayi Chisirimunhu had the windows of his shop smashed and his patrons attacked and intimidated.
The Mujaji family suffered the loss of their home which was razed to the ground with all their property therein contained and their children were assaulted by Mutemachani and other war veterans causing them to flee from the area until the election.
The house of Percy Mavheneka was broken into, his windows destroyed and himself and his family assaulted with whips, knobkerries and sticks by war veterans.
Rose Chauke and her husband were assaulted by Mutemachani and other war veterans, their two year old child kicked from the arms of his father and the family forced to flee to Chikombedzi where they remained until the elections were over.
The petitioner had the windows at his residence smashed and was forced to flee from his home with his wife and children.
Richard Nyekeani of Muteo Village was assaulted severely by Mutemachani and three others and threatened with death. Kenneth Mwenga was assaulted by Mutemachani when he went to the assistance of an MDC supporter whose T-shirt was being forcibly removed by Mutemachani.
Chadema Sungano, an NCA supporter and a teacher at Chitepo School, had the walls of his house spray-painted with the words “Down with Chademana” and his friend Proud Zava was assaulted in his presence.
James Jekero and the village heads in the constituency were told by war veterans to urge their subjects to vote for Zanu PF or else there would be war.”
Elliot Chauke lodged an appeal to the Supreme Court in July 2001. The appeal was eventually heard by Jutices Chidyausiku, Cheda and Malaba on June 14, 2004. Malaba delivered the judgment of the court. He said that a reading of the record of the evidence given by witnesses who were victims of acts of violence satisfied him that the findings by Ziyambi were justified. He also said that the facts established that the same type of acts of violence were perpetrated on MDC supporters at different places across the constituency.
Chauke obviously was not in a hurry to have his appeal heard because he wanted to remain an MP. The Chief Justice allowed him to drag the appeal out for three years. It then took the three judges of the Supreme Court 15 months to prepare their judgment.
Having heard the submissions by counsel on June 14 2004, their judgment was handed down on 22 September 2005 (SC147/04). By that time Chauke had served his five years in parliament and his term of office had expired. Neither the High Court nor the Supreme Court directed that criminal proceedings should be instigated against the war veterans who had intimidated the chief and the village heads or that Chauke should be ordered to refund all the payments he unlawfully received as an MP.
Judge Malaba who delivered the judgment of the Supreme Court, said that a reading of the record of the evidence given by witnesses satisfied him that the findings were justified. He also said that the evidence established that corrupt practices committed by persons other than Chauke or his election agent and without their knowledge and consent extensively prevailed in the violence. Therefore, it could not be said that there was a free election.
He said that corrupt practices in the form of undue influence on voters to refrain from voting at all or to vote for Zanu PF committed by Mutemachani and other war veterans extensively prevailed in the constituency so that it could not be said the election was free and fair. Malaba then went on to say that he came to the same conclusion as the judge of the High Court that Chauke had not been duly elected. Chidyausiku and Cheda concurred with his judgment.
It is interesting to note that although the appeal had been filed on July 24 2000, the judges of the Supreme Court did not hear argument on the matter until June 14 2004. That meant that Chief Justice Chidyausiku was happy to let Chauke act as MP and receive the relevant salary and allowances. Obviously the Chief Justice did not consider that the matter should be dealt with expeditiously as a matter of urgency.
The three Supreme Court judges must have read the record of the proceedings in the High Court before they heard arguments from counsel on 14 June 2004. However, it took them 15 months to prepare and hand down their judgment. It was handed down on September 22 2005, three months after the expiration of the five year term of the MPs elected in June 2000. Chauke was allowed, per grace and favour of the Chief Justice and other judges of the Supreme Court, to remain and act as a Zanu PF MP for five years even though his election had not been free and fair.
In all the 37 election petitions which were filed in July 2000, not one of them was finalised before the expiration of the five year term of that parliament. About two thirds of the election petitions had been processed in the High Court within the five year term. In most of these cases an appeal was filed but no appeal in which an election was set aside was determined before June 2005. With regard to the petition challenging the election of President Mugabe in 2002, the case has not yet been determined.
Have the MDC, its candidates and its supporters received justice at the hands of Chief Justice Chidyausiku and the courts of Zimbabwe?
George Smith is retired Judge of the Zimbabwe High Court.

By George Smith

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