ON August 24, the Constitutional Court (ConCourt) handed down its abridged judgment in the electoral challenge case brought by the opposition candidate, Nelson Chamisa, against the ruling Zanu PF’s Emmerson Mnangagwa and 24 others.
In this abridged judgment, the court did not give reasons for a number of its findings, noting that these would be made available in its full judgment. One year on, the world in general, and Zimbabweans in particular, continue to wait for the court to explain its order and findings.
In legal proceedings, it is not uncommon for presiding officers to make an order and provide reasons later, or simply reserve judgment until such a time as they can give written reasons. How a presiding officer chooses to proceed is influenced primarily by the nature of the relief sought and the urgency thereof.
No doubt, in the electoral challenge case, the court was required to make a determination timeously due to the nature of the challenge, the order sought and the significance of the outcome. Indeed, Section 93(3) of the constitution prescribes that the court “must hear and determine a petition or application … within 14 days after the petition or application was lodged”. Because of this constitutional prescription, the court had no option, but to proceed as it did—make a finding and explain later.
In many jurisdictions, Zimbabwe included, judges are notorious for “sitting” on cases for unacceptable periods. Take for example the Zimbabwe Law Officers Association vs National Prosecuting Authority and Others case. Argued in 2015, the court only delivered its judgment early this year, on February 19. Such delays annoy litigants and shine the spotlight on the question of what really constitutes justice. Writing on delayed judgments in Jamaica, Sha-Shana Crichton cautioned in 2016 that “… the delay harms litigants and poses significant threats to the country as it signals an inefficient judiciary”. This is as true in Zimbabwe as it is in Jamaica.
Although there are some efficient judges, every judiciary has its “problem” judges. In South Africa, for example, judge Moses Mavundla of the Pretoria High Court suffered the ignominy of appearing before a Judicial Conduct Tribunal in September 2018 for delayed judgments. In his case, some judgments were outstanding for more than two years.
Zimbabwe’s judges are not innocent of this charge, particularly those at the country’s apex court, the ConCourt. The decision in the Zimbabwe Law Officers Association case referred to above was close to four years late. However, more damning is the court’s lack of urgency in another case of extreme constitutional importance. Having heard the case brought by Veritas to force parliament to establish an independent body to deal with complaints against security forces in 2016, the court has simply gone silent.
In September 2018, journalist Carmel Rickard drew attention to the ConCourt’s delay in this matter, underscoring the importance of compliance with section 210 of the constitution. Entitled A Country Waits: When Will Zimbabwe’s Constitutional Court Give Its Long-delayed Decision?, her article was critical of the court’s conduct, adding that had an independent body been in place, it would have come in handy in the aftermath of the post-election violence where civilians were killed by security forces.
The charge that a culture of “sitting” on cases has taken root amongst Zimbabwe’s judges is difficult to defend. In 2006, the International Bar Association sounded the alarm over “unnecessary” delays by the country’s judges in handing down judgments, noting that this was the case even in matters that did not involve complex issues of law. More than 10 years later, there is no evidence to suggest that this criticism was noted. On the contrary, it is getting worse, and the newly created ConCourt is not leading by example.
The call to lead by example is important because, beyond justice, judges have an obligation to adhere to regulations that apply to their profession. In Zimbabwe, the Judicial Code of Ethics stipulates that judges must issue judgments within three months, and only in matters involving complex issues of law can they do so within six months. This is standard across many jurisdictions.
For various reasons outlined below, I argue that the ConCourt’s delay in availing a full judgment in the electoral challenge case constitutes reckless conduct and is unhelpful to the attempts being made to extricate the country from the political and economic quagmire that it finds itself. This piece is not about the court’s decision; it is not about the correctness or lack thereof of the court’s order, but is just about the importance of having the reasons why the court found as it did, and why these should have been made known sooner.
Before hearing arguments on the merits of the case, the ConCourt was called upon to dispose of a number of preliminary issues — so-called points in limine.
Amongst these issues was the argument, by some respondents, that the application was not properly before the court and therefore ought to have been dismissed on that basis. The court disagreed, noting that although the applicant had fallen foul of time prescriptions, the matter was of national importance, hence it would be in the public’s interest to hear it. Other points in limine would be dealt with in the main judgment, the court said.
When Chamisa’s lawyer finally made his submissions, he raised a number of issues. These included the lack of independence of the Zimbabwe Electoral Commission (Zec); failure of state-owned media to comply with Section 61(4) of the constitution; the conduct of traditional leaders and rogue security elements; wearing of partisan clothing; fixing of polling station returns (V11 forms) on the outside of polling stations; postal ballots; counting of presidential ballots; undue influence, threats, injury, damage, harm or loss to voters; and bribery, provision of seed and fertiliser packs.
Again, the court did not deal with these allegations, noting that they would be addressed in the full judgment.
Consequently, the court deferred all other issues and only dealt with the question of whether or not the applicant, Chamisa, had made a compelling case for the nullification of the result as announced by Zec. As is common cause, the court disagreed with Chamisa and dismissed his application with costs.
Although the court made a finding on the results and Zimbabwe has “moved on”, in the absence of a full judgment many questions remain unanswered.
Why we need the full judgment
Since the ConCourt’s decision in August 2018, the opposition has refused to engage with the Mnangagwa administration, challenging the legitimacy of the President. Following the establishment of the Political Actors Dialogue (Polad) by Mnangagwa, the platform has been ridiculed because of the non-participation of the main opposition and one can conclude that its contribution will be minimal, if at all, without Chamisa and his MDC Alliance party.
A well-reasoned judgment by the court would come in handy — or would have come in handy (had it been delivered timeously) — in bolstering the president’s claim and convincing the international community that despite the opposition’s claim, a well-reasoned judgment by the country’s top court found otherwise.
Although the image of the country’s political landscape is important to the international community, one can argue, and correctly so, that internal politics supersedes international perception. For this reason, the full (well-reasoned) judgment would also serve to expose the opposition as seeking to score cheap political points by continuing to dispute the President’s legitimacy in the absence of a sound premise to do so.
Need to critique, analyse judgment
Although decisions of the ConCourt in electoral matters, and indeed all other matters, are final, their finality does not shield them and the judges concerned from criticism and analysis. Indeed, this post-judgment exercise is necessary. It sheds light on the independence of the judiciary and the state of democracy in the country, an important conversation in any political landscape.
One can assume that a number of responsible academics and commentators have held back and resisted the temptation to dissect the ConCourt’s decision on the strength of the abridged judgment, and this is commendable.
In its abridged judgment, the court made bold findings and it is only natural that its reasons are of interest. For example, Chamisa made submissions on the pre-election conduct of Zec, the national broadcaster ZBC and the security forces. Because elections are a process, one would therefore be curious to find out how the court interprets the question of fraud. Of course, this interpretation will have to be validated against the constitution, the Electoral Act and regional as well as international standards.
So far, the court has said it will only invalidate a presidential election in very limited and specific circumstances namely: “if the results are a product of fraud”; and “[if] the elections were so poorly conducted that they could not be said to have been in substantial compliance with the law”. How does the court explain the issue of distributing fertiliser to rural voters as anything other than vote buying?
Of interest, too, is the court’s interpretation of what constitutes an electoral process. Does the court adopt an expansive interpretation which takes into the account all the processes leading up to and including the voting itself? Or does it limit it to the actual voting? With this established, one can then test the court’s interpretation against the vast academic literature and international jurisprudence on what constitutes free, fair and credible elections.
The court must also explain why it dismissed the fifth, sixth, seventeenth and twentieth respondent’s papers as not having been properly before the court. Why admit the applicant’s papers despite being defective, while dismissing others? If at the outset the court was inclined to hear the matter because of its importance, why not place/admit all evidence/submissions that can assist in making a finding? Why was Chamisa accorded more weight than other litigants?
Of critical importance in the full judgment will be the issue of primary evidence. The court was not kind to Chamisa for his failure to request the contents of ballot boxes — the actual marked ballot papers. Although there is merit to this position, the court must explain its different attitudes to ballot boxes as primary evidence, and the Zec server as primary evidence. I will explain.
In its abridged judgment, the court noted the following; “… the Zimbabwe Electoral Commission made a critical admission that the exact figures were incorrect and minor adjustments were made after data capturing errors were corrected. It was submitted that this affected the figures relating to the first respondent’s win by 0,1% but did not affect the result of the election”.
Having said that, the court accepted Zec’s submission as factual, true and final. What if Zec was not being truthful? What if the adjustments were bigger than admitted? If the contents of the ballot boxes are primary evidence, should the server not be primary evidence too? One would therefore be interested in the court’s reasoning why it was prepared to take Zec’s word, and believe that the alterations were minor, without the primary evidence, the server.
Finally, the issue of costs. The court must explain why it ordered costs against the applicant in light of its admission that the case was of national interest and importance. In the absence of a credible explanation, the costs order plays into the hands of those who accuse the court of bias and attempting to discourage litigants from bringing cases before it.
Court and accusations of bias
Lastly, when the court issued its abridged judgment, accusations of bias and impartiality were quickly directed at its judges. This criticism was, and remains, unfair. The abridged judgment does not give us enough to substantiate such allegations — except, if one makes them based on previous judgments.
However, one would think that the court would act fast — and provide reasons for its order — to preserve or redeem its status as an independent, impartial and credible institution which acts without fear or favour.
In conclusion, the court’s delay in issuing a full judgment is bad for Mnangagwa. While his supporters will be quick to dismiss continued “noises” against his legitimacy as nothing more than a minor irritation, emphatic reasons by the court why Chamisa failed will be helpful.
Secondly, a full judgment is of interest to commentators and academics. Answering the how and why the court made certain findings will assist in measuring the health of the country’s democracy. Finally, the court needs to issue a full judgment for its own reputation.
However, I must add that a poorly reasoned judgment will do the opposite.
Dr Ncube is a senior lecturer at the University of Johannesburg. He specialises in public international law. — Twitter: @six_ncube.