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Electoral Courts: History justifies scepticism

Leonard Makombe

WHEN Margaret Dongo, as an independent candidate for Harare South in the 1995 parliamentary elections, successfully challenged the outcome of the polls citing fraud, many thought it was a tipping point that would radically change the way the country held elections.

However, 15 years on and six general elections later, Zimbabwe continues to grapple with archaic mechanisms for holding elections, especially a tattered and shambolic voters’ roll, contestable electoral laws, an unfair and uneven playing field, administrative incapacity and a partisan management of elections.
Dongo, the first and only candidate to successfully challenge an electoral result within the life of a parliament, premised her petition on a ragged voters’ roll and then won the rerun against Vivian Mwashita of Zanu PF.
There was never a lull between the historic Dongo challenge and the current mechanisms as piecemeal reforms were undertaken, of significance being the adoption of the Sadc Principles and Guidelines on Free and Fair Elections in Grand Baie Mauritius in 2004 which sound good on paper but have failed to clean up the country’s electoral record.
Such scepticism is justified by the country’s electoral history since the adoption of universal suffrage, where all eligible voters could cast their ballot in 1979 during the short lived Zimbabwe-Rhodesia regime.
It would thus have been refreshing to hear Justice minister Patrick Chinamasa proposing further electoral reforms, specifically establishing an Electoral Court, but political players and legal experts took these as mere cosmetic changes without much significance.
An Electoral Court would be empowered to “review any decisions of the Zimbabwe Electoral Commission or any other person made or purporting to have been made under the Electoral Act” and hears appeals, applications and petitions in terms of the same Act.
Analyst and legal expert Alex Magaisa said if properly used, electoral courts were a useful institution in the electoral landscape.
“Nevertheless, past experience in Zimbabwe does not support any optimistic belief in that institution,” said Magaisa who is also a lecturer at Kent University in the United Kingdom.
Another analyst, Sibanengi Ncube said establishing an Electoral Court did not automatically mean that they would clear the cases.
“The advantage is we have people who concentrate on a particular area,” said Ncube who is also the programmes manager for the Parliamentary Monitoring Trust. “If the judges focus on one area, that is elections, they would have a better understanding of the processes hence better justice delivery.”
There are politicians and analysts who questioned the intention of the Justice minister, arguing that he had shown undemocratic tendencies which would taint the reforms.
Magaisa said it was important that Electoral Courts were truly independent and sufficiently resourced “so that they are not beholden to anyone”.
Problems which have affected the operations of other courts could also weigh heavily on the Electoral Courts, especially respect for their rulings or their enforcement.
Dongo said while there has been some movement since her challenge more than 15 years ago, there were many issues to be addressed before the elections are free and fair.
“We have problems with the voters’ roll,” said Dongo. “We should make sure that there is a democratic and well prepared voters’ roll.”
In Brazil, the system of the electoral courts is decentralised to provincial levels and they are responsible for voter registration, eliminating the partisan nature of recording potential voters in Zimbabwe.
The political terrain has changed significantly since Dongo’s challenge as petitions are not only challenging the threadbare voters’ roll but issues of intimidation, political violence and other irregularities.
Those challenging the outcome of the elections have learnt that Dongo’s case was unique and has never been repeated as the country’s courts have failed to handle all electoral matters brought as expeditiously as is required when dealing with such cases.
Whereas there was only a single electoral challenge in 1995, there was a surge in 2000 as the MDC brought 32 cases and Zanu PF had eight petitions for redress in the courts.
Two years later the presidential elections were disputed and the injured party, the MDC, brought another case before the courts, bringing eight more in the 2005 poll.
None of the 49 electoral cases brought to the courts between 2000 and 2005 were concluded to their logical conclusion as High Court rulings were appealed and the Supreme Court, which is not a specialised court, dealt with the cases without any urgency.
Election petitions remained unresolved for one full term of office of MPs, a development which legal experts termed as justice denied in that prospective MPs were in some cases denied the benefit of their High Court victories.
The political landscape has radically changed with the turn of the century and the contest around election results continues to increase.
One way of resolving them could be giving teeth to the Electoral Court thus preventing the sort of delays that have impaired the democratic process in the past .

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