Court Watch 9-2014

COURT WATCH 9/2014

[11th June 2014]

Post-July 2013 Election Petitions:  Part IV Jameson Timba’s Petition [Mount Pleasant Constituency]

This bulletin is the fourth in our series on the election petitions that were filed in the Electoral Court after last year’s harmonised elections.  Parts I, II and III appeared in Court Watches 6, 7 and 8/2014.  This part covers the story so far of the challenge launched by MDC-T’s Jameson Timba against the election result for the National Assembly Mount Pleasant seat in Harare. 

Introduction

Timba held the seat for the Mount Pleasant constituency in the previous Parliament.  In the 2008 election he won the seat, polling 3875 votes to the 1738 received by the ZANU-PF candidate, and was subsequently appointed a Minister of State in the inclusive government.  In the 2013 harmonised election, however, the ZANU-PF candidate, Jaison Passade, was declared the winner of the seat; at constituency level it was announced that Mr Passade had received 10333 votes and Mr Timba 6893, but the ZEC national command centre said Mr Passade had gained 7945 votes and Mr Timba 3817 votes. 

Dissatisfied with the way the election had been conducted, Mr Timba brought three separate but related cases to the Electoral Court in a campaign to challenge the Mount Pleasant result in the Electoral Court:

- two applications seeking court orders for access to sealed packets of material relevant to the Mount Pleasant election, held by the Zimbabwe Electoral Commission [ZEC]

- on 16th August, the election petition itself, in which he challenged the election result and asked for it to be set aside and a fresh election ordered.

These cases are outlined in more detail below, starting with the two applications.

The Two Applications for Sealed Material Held by ZEC

The pre-petition application: dismissed as premature

On 12th August, before lodging his election petition, Mr Timba made an urgent chamber application seeking a court order compelling ZEC to produce the “election residue”, i.e., the sealed packets of voting records for the constituency, including the lists of all people who had voted and those who had used voting slips.  Mr Timba believed this material would show the irregularities and inconsistencies he alleged had occurred during the election in the constituency. 

Justice Mafusire dismissed the application, accepting ZEC’s argument that the Electoral Act required Mr Timba to first file an election petition before approaching the Electoral Court for access to the election residue.  [Note: Section 70 of the Electoral Act provides that no-one may open the sealed packet containing election residue except in terms of an order of the Electoral Court, which may only be granted if the court is satisfied that inspection of the residue is required for the purpose of an election petition or for a prosecution for an electoral offence.]

The post-petition application: Supreme Court appeal hearing due 12th June
After the filing of the petition and after Justice Bhunu’s 6th December decision that it should go to trial, a fresh application for the election residue was filed.  Justice Mavangira dismissed it on 9th January, pointing out that the harmonised nature of the election meant that any opening of the sealed packets of election residue would necessarily reveal information about the Presidential election [something only the Constitutional Court could permit] and the city council election [which had not been challenged].  Justice Mavangira said the Electoral Act was at fault to the extent that it failed to provide for separation of election residue for different elections at the same polling station.  [Soft copy of judgment available from the addresses at the end of this bulletin.]  Mr Timba noted an appeal against this decision.  The appeal is due to be heard in the Supreme Court on Thursday 12th June at 9.30 am. 

The Election Petition

Preliminary issues  On 13th November Justice Bhunu heard argument on preliminary objections raised by Mr Passade, including a submission that the allegations made in the petition were not sufficient to justify a trial.  On 6th December Justice Bhunu dismissed these objections and ordered that the trial of the petition would start on 3rd February, only two weeks before the statutory deadline for his final decision on the petition [Soft copy of judgment available from the addresses at the end of this bulletin.]

Mr Timba’s evidence  Mr Timba was the first witness in support of his petition.  His testimony covered:

Irregularities during Special Voting Exercise, 14th-15th July 2013  Special early voting for members of the security forces took place on 14th and 15th July.  Mr Timba alleged that the irregularities that occurred during special voting must have affected the election result.  For instance, senior police officers, using their own lists, had marshaled would-be voters who had then been allowed to vote without ZEC officials checking them against the voters roll; at Mount Pleasant Hall the ZEC presiding officer re-opened polling in the early hours of 16th July, long after the polling station had closed, to allow a busload of alleged police officers to vote.  Mr Timba’s formal written request to ZEC asking for the list of names of those who had been authorised to cast special votes was denied, so he had no way of telling if the persons who had been allowed to vote on the say-so of senior police officers were bona fide registered voters in the constituency.  In addition, in breach of the Electoral Act provision for separate counting of special votes, at two collation centres the special votes had been mixed with the ordinary votes during the counting process.

Outsiders wrongly registered on Mount Pleasant voters roll  Mr Timba testified that there were people who resided in Eastlea who were registered on the Mount Pleasant Voters roll. Police and army officials from Cranborne in Harare Central Constituency, ZRP Highlands in Harare East Constituency, Imbizo Barracks in Umguza in Matabeleland North Province, ZRP Camp Chivi Growth Point in Chivi and ZRP Norton were all registered in Mount Pleasant; also, members of the Presidential Battalion residing at Dzivarasekwa Township were registered to vote in Mount Pleasant.  More than 3000 people on the roll had given the Zimbabwe National Army HQ staff quarters as their place of residence, compared to 667 in 2008, even though the physical structures there had not been extended since 2008. 

Bussing of voters   Mr Timba testified that some persons bussed in from outside had been allowed to vote, although not on the voters roll.

Evidence of Registrar General of Voters  Registrar-General Mudede insisted that the electronic voters roll, in a format that allowed it to be analysed and searched, had been available to all political parties and to anybody else who requested it, until the vital server broke down, which was after the registration period had closed, and just before his office was supposed to distribute the voters roll to the provinces.  His office had no funds to replace the equipment.  Until it was repaired or replaced, the voters roll data could not be printed or accessed.  His office had no electronic back-up of the voters roll.  But, he said, the hard copy of the voters roll had been available throughout.  Mr Mudede said Israeli firm Nikuv had been hired as a consultant during compilation of the voters roll, but only to source equipment which was then manned independently, with his office retaining complete control over the server and the voters roll.  

Evidence of ZEC Chief Elections Officer  Mr Sekeramayi agreed that Mr Timba had not been given the list of authorised special voters for Mount Pleasant, but pointed out that public notice had been given in the press on 2nd July inviting all those interested to come and observe the processing of applications for special votes.

He claimed that not having the electronic voters roll was of no consequence to a candidate because the hard copy of the voters roll had been made available to all the candidates and the candidates could have come and checked on ZEC’s electronic voters roll if they wanted to see if their supporters were indeed registered. He was unable to say whether polling stations in the constituency had been equipped with ultra-violet detectors to prevent double voting.

Evidence of ZEC Chairperson  Justice Makarau said Mr Sekeramayi, being responsible for operational matters, would know more than she did on the voters roll aspect.  She stressed that all parties had been equally disadvantaged by not having access to the electronic voters roll.  She confirmed that she had responded to Mr Timba’s complaints about registration of suspected non-residents by saying ZEC had no power to amend voter registration.

Evidence of Tendai Biti  MDC-T Secretary-General Tendai Biti described what he had observed during polling in the constituency, supporting Mr Timba’s evidence and the videos already produced.  On bussing-in of outsiders, he described seeing two ZUPCO buses with blankets and fast food boxes inside and talking to people standing in the queues who could not name a single street in Mount Pleasant and were obviously not genuine Mount Pleasant residents.  He also mentioned abuse of voter registration slips people being allowed to vote without producing identity documents, and the absence of ultra-violet testers to check on double voting. 

Judgment on Petition Reserved

On 3rd March Justice Bhunu heard the closing arguments from both parties on:

-the merits of the petition, i.e., whether Mr Timba had succeeded in proving grounds for setting the election aside.

-the effect on the proceedings of the failure to meet the mid-February statutory deadline [in terms of section 182 of the Electoral Act] for determination of the petition.  Mr Timba’s lawyer argued the deadline provision should not be interpreted to mean that the case could not be finalised.  Mr Passade’s lawyer argued that that the petition had lapsed, with the result that Mr Passade retained the National Assembly seat.

Justice Bhunu then reserved judgment on both issues.  His decision is awaited.

Note: On 24th April, giving judgment on Blessing Chebundo’s election petition challenging the Kwekwe Central result, Justice Mutema expressed the following view on the effect of his having heard the case after the expiry of the six-month statutory deadline: 

During the hearing Mr Gijima broached a novel preliminary point, viz that this petition should no longer be heard by virtue of not having complied with section 182 of the Act since the required six month period within which an electoral petition must be determined has lapsed. He interpreted the word ‘determined’ to mean finalised. … I have not been persuaded that that interpretation is correct, on account of the fact that this petition was affected by the various interlocutory applications launched not by the petitioner but by the respondent. The result of such interpretation of the law would wrought an absurdity not contemplated by the framers of the statutory provision.”

[Soft copy of judgment available from the addresses at the end of this bulletin.]

 

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