Court Watch 8-2014

COURT WATCH /2014

[16th May 2014]

Post-July 2013 Election Petitions:  Part III  
The Chebundo & Timba Petitions

Court Watches 6/2014 of 24th April and 7/2014 of 28th April were devoted to election petitions following last year’s harmonised elections that were either dismissed by the Electoral Court, or withdrawn by the petitioners, because of lack of funds or procedural defects, and without the court having heard evidence about or come to conclusions on the validity of the complaints raised by the petitioners. 

This bulletin concentrates on the only two petitions that survived the weeding-out process outlined in those two bulletins:

- Blessing Chebundo’s petition challenging the KweKwe Central result in the Electoral Court, Bulawayo, in which judgment was handed down on 30th April; and

- Jameson Timba’s petition challenging the Mount Pleasant result in the Electoral Court, Harare, in which the decision of the court is still awaited. 

In each case, the petitioner had held the seat in the previous Parliament, stood for re-election on 31st July 2013 under the MDC-T banner, and lost the seat to a ZANU-PF candidate.  

Reminder: Deadlines for Deciding Election Petitions

Presidential election petitions  The Constitution itself, in section 93, provides that an election petition challenging a Presidential election must be:

- lodged with the Constitutional Court within seven days of the election result being announced, and

- decided by the Constitutional Court within 14 days after its lodging. 

Mr Tsvangirai’s election petition was lodged in good time, and the Constitutional Court duly rejected it and confirmed Mr Mugabe’s election as President within the 14-day period stipulated by section 93.   

Other election petitions   The Constitution fixes no specific deadline for deciding Parliamentary or local authority election challenges, saying only that the State, including legislature, executive and judiciary, must “ensure the timely resolution of election disputes” [section 155(2)(e)].  But, the Electoral Act, in section 182, says an election petition challenging a parliamentary or local council result must be decided within six months of its presentation, and any appeal to the Supreme Court from a decision of the Electoral Court within six months of the appeal being lodged.  

In the KweKwe Central and Mount Pleasant cases the six months allowed for the Electoral Court’s decision expired on 16th February.

Mid-February deadline missed in these cases  Despite the statutory deadline, both the Timba and Chebundo petitions remained undecided by 16th February.  There were hearings in both cases after that date [see below] until legal arguments had been concluded, and the presiding judges then reserved judgment.

Effect of missing the deadline  In both cases the lawyers presented legal argument on the meaning of the deadline provision and the effect of the failure to meet the deadline.  Counsel for the sitting MP in the Mount Pleasant case submitted that the deadline provision meant that Mr Timba’s petition had automatically lapsed and become a nullity on 16th February.  It remains to be seen what the Electoral Court decides on this issue.  Will it, perhaps, conclude that a petitioner can hardly be blamed for a situation not really under his or her control, and therefore that a court’s failure to comply with a deadline of this sort does not cause automatic nullity because that would be neither reasonable nor fair?

Blessing Chebundo v Masangano Matambanadzo [KweKwe Central]

Granting of default judgment ordering by-election  Mr Chebundo’s petition for the setting aside of the ZANU-PF victory in Kwekwe Central was set down for hearing on 2nd December in the Electoral Court in Bulawayo.  Neither the winner of the election – the sitting MP Mr Matambanadzo – nor his lawyers were present in court.  Justice Mutema heard submissions from Mr Chebundo’s lawyer and then proceeded to grant a default judgment in favour of Mr Blessing Chebundo, ruling that Mr Matambanadzo “was not duly elected as a member of the House of Assembly for KweKwe Central during the July 31 elections.” 

The judge declared the Parliamentary seat for Kwekwe Central vacant and ordered that the Zimbabwe Electoral Commission [ZEC] should set a date for the necessary by-election within 10 days.

Default judgment suspended  Mr Matambanadzo’s lawyers in Harare promptly announced that the reason for non-attendance in court was that neither they nor Mr Matambanadzo had been notified of the date of the hearing.  An urgent chamber application was accordingly made for a temporary stay of execution of the default judgment, and this was supplemented by an application for the default judgment to be rescinded.  On 5th December the judge suspended the default judgment by granting a stay of its execution pending the hearing and finalisation of the application for its rescission. 

This preserved the situation as it had been before the granting of the default judgment:  Mr Matambanadzo continued to be the duly elected member of the National Assembly for KweKwe Central and ZEC was for the time being relieved of the burden of organising a by-election. 

Hearing of application for rescission of default judgment, and petition  On 17th March the parties argued on both the rescission application and the election petition itself.  On the election petition, Mr Gijima, representing Mr Matambanadzo, argued that the petition should be dismissed for non-compliance with several procedural requirements spelled out by rule 21 of the rules of court [SI 74A/1995].  He mentioned the following: failure to specify the exact date on which polling took place and the date on which the election result was announced in the constituency; and failure to state the exact nature of the order applied for.

Petition dismissed  On 30th April Justice Mutema granted Mr Matambanadzo’s application for rescission of the default judgment he had granted in December.  He then dealt with the election petition itself, and upheld the procedural objections to the petition, declared Mr Chebundo’s election petition “a nullity, void and of no force or effect for want of compliance with Rule 21 of the Electoral Court (1995)”, dismissed the petition, and declared Mr Matambanadzo the duly elected member of the National Assembly for KweKwe Central.

Merits of Mr Chebundo’s petition not decided  This result means that all the election petitions so far decided by the Electoral Court have been dismissed for failure to comply with procedural requirements.  In none of these cases, therefore, did the court reach the stage of hearing and evaluating evidence in support of the petitioners’ complaints – which included vote-buying, vote-rigging, improper use of voter’s registration slips as proof of entitlement to vote, voter intimidation, interference of traditional leaders with voters’ rights, and ZEC’s failure to make available a soft copy of the voters’ roll.  It now seems certain that only in the Mount Pleasant case [see below] will the Electoral Court have an opportunity to come to a conclusion on the merits of MDC-T complaints about the validity of the harmonised election results.

Jameson Timba v Jason Passade [Mount Pleasant]

Mr Timba has two electoral cases awaiting finalisation by the courts:

- his election petition challenging the election result in the Mount Pleasant constituency, in which evidence has been led and legal arguments presented and what remains is for Justice Bhunu to hand down the decision of the Electoral Court

- his appeal to the Supreme Court against a January 2013 decision by Justice Mavangira dismissing a separate but related application by Mr Timba for an order compelling ZEC to make available its voting materials and records for the Mount Pleasant election.  This appeal has been set down for hearing in June.

These will be covered in greater detail in a separate bulletin.

 

 

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