ZIMBABWE’S judiciary system has over the years been widely viewed by those opposed to Zanu PF as not being independent when handling political cases.
The judiciary’s independence was once again brought under the spotlight through the MDC-T’s presidential election petition which was dismissed with costs on Tuesday after a hearing.
In his election petition, former Prime Minister and leader of the MDC-T, Morgan Tsvangirai, vowed to provide evidence he claimed would expose how President Robert Mugabe and Zanu PF stole the July 31 polls.
Mugabe registered an astounding 61% of the vote against Tsvangirai’s 33%.
But with hindsight, Tsvangirai withdrew his petition before the Constitutional Court (Concourt) a week after filing it and a few hours before the matter was set for hearing.
However, the Concourt would have none of that declaring the move illegal and went ahead with the case despite Tsvangirai’s protest.
In withdrawing the case, Tsvangirai cited the High Court’s attitude in “deliberately” delaying him access to election material — which he argued was “crucial” to exposing what he said was the method used in rigging the polls — therefore bringing its impartiality into disrepute.
However, Tsvangirai’s lawyers distanced themselves from that part of his affidavit arguing it was his opinion and not theirs.
Tsvangirai further cited the restrictive timelines imposed by Chief Justice Godfrey Chidyausiku in filing all paperwork related to the case, Mugabe’s pronouncements on Heroes Day that he will not go back on his victory and adverse pre-trial publicity by the state media.
Tsvangirai’s lawyers included Tarisai Mutangi, Selby Hwacha, Chris Mhike Alec Muchadehama and Lewis Uriri, some of them considered relative lightweights compared to experienced lawyers such Advocates George Bizos, Jeremy Gauntlet and even Adrian de Bourbon who are senior counsels in South Africa and have successfully represented Tsvangirai in the past.
However, despite these impediments, analysts believe Tsvangirai’s petition was an exercise in futility from the onset considering the porosity of his evidence and the lightweight legal representatives he hired to represent him in the matter.
Zimbabwe Democracy Institute (ZDI) chairperson Rashweat Mukundu thinks the case was doomed to fail from the start saying: “The MDC-T case was always going to be difficult to prove in the absence of a forensic investigation of the voters’ roll. Without these the MDC-T cannot prove anything. In this regard, one would agree with Welshman Ncube that challenging this election result is a futile exercise.”
Interestingly, Ncube, who dismally lost the presidential race and a lawyer by profession, was pragmatic from the beginning that a court challenge was not the best option to tackle this matter.
Although Ncube described the whole process as flawed, he suggested not wasting time going to the courts, but instead to start preparing for the next elections.
Harare-based political commentator Jonathan Gandari added his voice saying the MDC-T blundered by making bold unsubstantiated claims.
“It may be very well that they lack the skills needed to unearth the evidence. I am not sure that the MDC-T has experts in fraud, which they claimed. What I find as a problem is trying to uncover something without the proper tools,” Gandari said.
The petition, according to the constitution, had to be concluded within 14 days from the date the case was filed.
Hopewell Gumbo, another Harare-based political commentator, said Tsvangiari’s petition may only have been a political statement by the MDC-T and had no prospect whatsoever in a competent court of law.
“While it may have been a mere political move, it arguably was not the best at the moment where the party needs to pick up the pieces from the defeat by Zanu PF. The courts are arguably compromised, and it is naïve for one to put trust in them,” Gumbo said.
Veritas, a Harare lawyers grouping, argued that Tsvangirai’s withdrawal of his petition did not stop the Concourt from hearing the matter and making a determination according to the constitution.
“Section 94(1)(b) of the new constitution states that, once challenged by an election petition, a president-elect can only be sworn in after the Constitutional Court has declared him/her to be the winner of the election. In the event of a challenge to the validity of (his/her) election, the oath must be taken within 48 hours after the Constitutional Court has declared (him/her) to be winner,” Veritas said.
Even if Tsvangirai had not withdrawn the case, he was set to fight from an extremely difficult corner after Mugabe’s lawyers had argued that the petitioner had approached the court with “dirty hands” given that the MDC-T dossier attached to Tsvangirai’s affidavit, in an assessment of Zimbabwe’s compliance with the Sadc Election Guidelines, stated that the judiciary is compromised.
When all is said and done, analysts agree that Tsvangirai and MDC-T were naïve in the first place to engage in a battle they were certain to lose from word go.