Silenced voices at home; orators abroad-the universality of justice


By Kuda Chitsike

One of the major reasons, leading to the negotiation of the Global Political Agreement was that violence during the run off period had reached unprecedented levels. Approximately 200 people were killed, thousands displaced and assaulted, but there was no mention of the rape that women suffered. It is well known that there was widespread violence, but what is less known is that sexual violence was perpetrated against women as a political strategy.  Previously, there was a lot of anecdotal evidence but no proper documentation was available in the aftermath of the election. Civil society organisations, including women’s groups were hesitant to talk publicly about politically motivated rape, even though survivors were seeking refuge in their organisations and their horror stories were known. The silence of the women’s groups muted the voices of the survivors; if well-established organisations were unwilling to speak on their behalf, who would listen to their individual voices? But as time went on the survivors of rape became bold, began speaking out about their experiences during the election period, and demanded to be heard and taken seriously.

The first public report on sexual violence in Zimbabwe during the election period was written by an American-based organisation, AidsFreeWorld, ‘Electing to Rape: Sexual Terror in Mugabe’s Zimbabwe.’ This report was released in December 2009 and it was based on 70 affidavits collected from women who were survivors of rape and were living in South Africa and Botswana where they felt free to speak.  A second report was produced by the Research and Advocacy Unit (RAU) and the Zimbabwe Association of Doctors for Human Rights (ZADHR) in 2010, entitled, ‘No Hiding Place: Politically Motivated Rape of Women in Zimbabwe.’  In these two reports, women reported that they were repeatedly raped and beaten for their support of the MDC, whether perceived or real, as the perpetrators told them so during the ordeal. Some stated that this happened in front of their children and family members, and, as a result of the rape, their marriages broke down. Most of the women did not receive appropriate care for the trauma that they had experienced. The women exhibited high levels of sleeplessness, nightmares, flashbacks, and hopelessness: symptoms, which are commonly associated with experiences of trauma.

These two reports gave credence to the claims that the women were making about politically-motivated sexual violence, and the issue could no longer be ignored.

The recently released findings of the Khampepe report supported what Zimbabwean organisations have been saying for the last 14 years, violence and intimidation are part and parcel of elections.  This report has implications for Zimbabwean women who lodged a case in 2012 in the South African courts with the support of AidsFreeWorld. The women brought their case to a South African court because they had failed to get any recourse in Zimbabwe. When they tried to report their cases to the police they were either turned away, told that the police were not dealing with political violence cases, or told by the police that they gor what they deserved. Sometimes the police outrightly  refused to open dockets, which effectively meant the women were unable to go for medical examinations.

AidsFreeWorld submitted an amicus brief to the South African courts after a case was brought by the Zimbabwean Exiles’ Forum and the Southern African Litigation Centre in 2008 on behalf of MDC supporters who alleged that they were tortured by ZANU PF supporters and state agents. On 30th October 2014, the Constitutional Court in South Africa ruled that the South African Police Service (SAPS) is obliged to investigate crimes against humanity “where the country in which the crimes occurred is unwilling or unable to investigate.” The ruling is based on the fact that South Africa is obliged to investigate because it signed and domesticated the Rome Statute on the establishment of the International Criminal Court.

This ruling has given hope to the Zimbabwean women who were brave enough to tell their stories. Unfortunately not all perpetrators will be brought to justice, but it sends the right message; that sexual violence will not be tolerated in any society for any reason.

Had the election report, which was compiled by the high court judges Sisi Khampepe and Dikgang Moseneke, been released when it was compiled it is highly probable that 2008 might never have happened as a government of national unity could have been negotiated in 2002. The Kamphepe report supported other observers’ groups that stated that there was serious election violence and it would have added to international pressure to end the Zimbabwean crisis.

As we commemorate the 16 days of gender activism, there is hope that justice will be delivered and that the victims of election violence, particularly the victims of rape that have not been acknowledged will get the redress they deserve. Although their voices may have been largely silenced at home, they can get justice abroad-proving that justice is a universal principle and that no atrocity committed against another human being can be hidden forever.

Where’s Wally*? Looking for my member of parliament


Since the elections were held in July 2013 I have not received a notice of a meeting called by my Member of Parliament or even heard that he came to the constituency, at least to my ward. A whole year has passed and I am asking myself where is he, what is doing that is keeping him so busy that he does not come? When he is in parliament what issues is he bringing up and/or debating? Whose interests is he representing if he doesn’t come to us the people to find out what our issues are, and how we want them to be addressed?

Every five years we have elections, and, in the last 15 years, I have had the same MP, Dr. Tapiwa Mashakada, but what has he done in my constituency for him to be voted for consecutively? Are we as Zimbabweans voting for a political party rather than for an individual we think can represent our interests and who will work towards getting these interests addressed at a national level? From where I am standing, it looks very much like the former.  Dr. Mashakada has not done much in my constituency to warrant re-election and yet he continues to be elected.  My constituency is well known for water challenges and occasional refuse collection yet people are billed consistently. How then do we raise our issues if we never see the Honourable MP?

In the previous term, Dr. Mashakada was in government as the Minister of Economic Planning and Investment Promotion, so he can be forgiven for not visiting the constituency as often as he should. According to Occasional Visitors: Attendance in the Seventh Parliament of Zimbabwe’ his attendance in parliament between June 2012 and June 2013 was not impressive at 29% and yet he was re-elected. Twenty nine percent is a fail grade under any circumstances, so why is he back in parliament; what did he do to deserve re-election?

There is urgent need for us to understand the roles and responsibilities of MPs; i.e. law-making, fostering public debate, oversight, and representation; this is in accordance with the constitution, section 117 (2) “The legislative authority confers on the legislature the power to:

  1. Amend this Constitution in accordance with section 328;
  2. b)  Make laws for the peace, order and good governance of Zimbabwe; and
  3. c) Confer subordinate legislative powers upon another body or authority in accordance with section 134.”

About a month ago RAU held workshops with approximately 100 women and the majority of them did not know the role of parliament, yet most of them had voted. When asked what they expect from their MP, they said that he/she should attend to ZESA issues, attend functions in the constituency, i.e. weddings and funerals, provide food assistance among others, none of which fall under the broad outline stated above. It is important for the general public to know that MPs are there because we voted them to be our representatives in Parliament; they work for us, and just as we chose them we can as well get rid of them for non-performance.  If we all take the time to understand our governance structures and the constitution, we will take our power back and ensure that MPs are working for us and raising issues that are important to us.  The power resides in us the people and not in the MPs, but this is not as it is perceived or portrayed.  It is critical for the MPs themselves to know that they are there to serve, and not to claim allowances and demand vehicles under the guise of needing them to carry out their duties, yet few of them are serving their constituencies let alone going there.

During the campaign trail, MPs were ubiquitous and full of promises: now that they got what they wanted most of them are nowhere to be seen.  Many will only resurface during the 2018 pre election period.

If you not in parliament or working in the constituency where are you, what are you doing and who are you representing, pray do tell?!

* A series of children’s books created by Martin Handford. In the series children are challenged to find Wally hidden in a group.

The Succession debate reaches new lows.


So the debate over the appointment of Grace Mugabe reaches new constituencies. The National Council of Chiefs has now weighed in and has endorsed her candidacy. This once again reinforces the point made in RAU’s recent report on succession; that the national constitution and the ZANU PF constitution have become inextricably linked. But it raises also the more serious issue about what does the National Council of Chiefs, or least the President of the National council, think that he or they are doing here taking sides in an internal debate within ZANU PF, and, much more seriously, have they read the new constitution at all.

For those traditional leaders that might be in any doubt about how they should be approaching the succession problem, we invite them to consult the constitution, and particularly Section 281. It is very explicit about what they should actually be doing in respect of the succession debate and leadership in ZANU PF.

281       Principles to be observed by traditional leaders

(1)        Traditional leaders must—

(a)        act in accordance with this Constitution and the laws of Zimbabwe;

(b)        observe the customs pertaining to traditional leadership and exercise their functions for the purposes for which the institution of traditional leadership is recognised by this Constitution;  and

(c)         treat all persons within their areas equally and fairly.

(2)        Traditional leaders must not—

            (a)        be members of any political party or in any way participate in partisan politics;

            (b)        act in a partisan manner;

            (c)         further the interests of any political party or cause;  or

            (d)        violate the fundamental rights and freedoms of any person.

Our reading of Section 281 does not reveal any ambiguities in how the National Council of Chiefs should approach the problem: do not say anything, do not endorse anybody at all, let alone the First Lady, and, above all remember, that it is their duty to treat all persons within their areas equally and fairly.

In addition to the provisions of the new constitution is the Traditional Leaders Act [Chapter 29:11],  promulgated before the new constitution, but saying essentially the same things about the non-partisan nature of traditional leadership. Section 46(1) of the Traditional Leaders Act states clearly that in carrying out their duties the traditional leaders must not be “influenced by any considerations of race, tribe, place of origin, creed, gender or political affiliation”. And the duties of chiefs are equally clear in the Act:

  1. a) promoting and upholding cultural values among members of the community under his jurisdiction, particularly the preservation of the extended family and the promotion of traditional family life;
  2. b) carrying out the functions of a Chief in relation to provincial assemblies (see below);
  3. c) nominating persons for appointment as Headmen by the Minister;
  4. d) approving nominations by Headmen of Village Heads for appointment;
  5. e) supervising Headmen and Village Heads in the performance of their duties;
  6. f) discharging any functions conferred upon him in terms of the Customary Law and Local Courts Act;78
  7. g) overseeing the collection by village heads of levies, taxes, rates and charges payable in terms of the Rural District Councils Act;
  8. h) ensuring that Communal Land is allocated in accordance with the Communal Land Act79and to ensure that the requirements of any enactment in force for the use and occupation of communal or resettlement land are observed;
  9. i) maintaining up-to-date registers of names of villages and their inhabitants
  10. j) preventing any unauthorised settlement or use of any land;
  11. k) notifying the Rural District Council of any intended disposal of a homestead and the permanent departure of any inhabitant from his area, and, acting on the advice of the headman, to approve the settlement of any new settler in his area;
  12. l) adjudicating in and resolving disputes relating to land in his area;
  13. m) and ensuring that the land and its natural resources are used and exploited in terms of the law and, in particular, controlling:

(i) over-cultivation; and

(ii) over-grazing; and

(iii)the indiscriminate destruction of flora and fauna; and

(iv) illegal settlements

and generally preventing the degradation, abuse or misuse of land and natural resources in his area;

  1. n) ensuring that no public property, including roads and bridges, telephone and electricity lines, dip tanks and animal health centres, clinics, churches, cattle-sale pens, schools and related establishments, is damaged, destroyed or misused by the inhabitants or their livestock;
  2. o) notifying the Rural District Council for the area concerned, as soon as is reasonably practicable, of the outbreak of any epidemic or prevailing disease, flood or other natural or unnatural disaster affecting the inhabitants, livestock, crops, the land, flora or fauna in his area;
  3. p) liaising with and assisting development committees established in terms of the Rural District Councils Act in all matters relating to the planning and implementation of local development programmes; and
  4. q) under the direction of the District Administrator or the Rural District Council, as the case may be, assisting drought and famine relief agencies in coordinating relief and related matters in his area.

As can been, these duties are all important aspects of rural life, many of which can be the focus of disputes between citizens, and citizens living within the area of jurisdiction of a chief can have the expectation that dispute will be dealt with in a non-partisan and impartial fashion uninfluenced by any considerations of race, tribe, place of origin, creed, gender or political affiliation. So, the constitution and the Traditional Leaders Act are not in conflict, and traditional leaders need to take heed of both, and take the lead in constitutionalism for the sake of those for whom they are responsible.

From “guided democracy” to “guided succession”?


The debate at the SAPES Trust Policy Dialogue Forum on succession last night, 4th September 2014, offered an insight into why Zimbabwe lurches from crisis to crisis, and why the international community (and investors) is so chary about engaging the country. Derek Matyszak, talking about succession in the Presidency, both the national President and the president of ZANU PF, pointed out that the problem with the new (2013) constitution is that, by default, it imports the ZANU PF constitution into the solution for succession. And as he pointed out, and has argued in a detailed analysis, the problems inherent in the ZANU PF constitution may attenuate the crisis. But since “guided democracy” has always been the way in ZANU PF, perhaps we should worry less about what the ZANU PF constitution says, and try to look into the crystal ball about what exactly are Robert Mugabe’s intentions. Will he guide the succession or leave it to his afterlife?

Stephen Chan, by contrast, offers the “guided succession” view. He did point out how desperately serious is the interaction between succession (and political settlement) and the economic survival of Zimbabwe. He was at pains to point out that, in order for Zimbabwe to attract the critically needed financial assistance, investors and donors need both clarity about the political security of the nation and economic policies that will ensure stability and growth. These latter do not need a genius macro-economist to tell us what to do, and since the SAPES conference earlier this year, it is clear that all local economists, bankers, and business men know what needs to be done. Little happens because the succession problem just won’t go away, and the political governance of both the present and the future remains uncertain.

However, Chan has an optimistic solution: “guided succession”. Offering the view that Mugabe’s elevation to the senior posts in the AU and SADC is a plan by the wise men in Africa to offer Mugabe a graceful exit (no pun intended), and that succession will be a process not an event. Hence, Mugabe will be inveigled to hand over in two years’ time, leaving the party two years to prepare a candidate for the 2018 elections. The question of which candidate is argued to be largely irrelevant since ZANU PF will easily win this election due to the parlous state of the opposition parties.

In Chan’s view, therefore, the anomalies in the ZANU PF constitution and the potential constitutional crisis that could be produced were Mugabe to die, or be unable to carry out his office, are not important. The party will not fragment, but will produce a successor in some fashion.

However, from Matyszak’s perspective, and Zimbabwean citizens generally, will this succession be “lawful”: will the ZANU PF constitution have been followed? The point here is that we, the citizens of Zimbabwe, have had 34 years, during which constitutionalism has been increasingly abandoned, both because of guided democracy and also because it is frequently just too inconvenient, politically speaking, to adhere explicitly to the constitution and the law. This is one of the reasons why there is no foreign direct investment or donor support for balance of payments: no-one is certain that the rule of law will be followed, and surely the manner of succession can strongly reinforce the rule of law or continue to undermine it.

Thus, clarity about succession is critical to restoring confidence and trust in the government.

Firstly, will ZANU PF follow its own constitution in electing a successor for the presidency? And as a starter it would be nice if more than Derek Matyszak knew what was in that constitution, and citizens could be reassured that ZANU PF has some kind of commitment to constitutionalism by making plain to the country (and everyone else) how they go about electing their leadership in a constitutional manner. A constitution that seems a secret document is not a reassuring basis on which to develop trust, and the possibility of a constitutional crisis, which Derek Matyszak suggests can happen, is not a good advertisement for the future, and for present trust in the Zimbabwe government.

Secondly, whether we like the result of the 2013 elections or not, the fact is that ZANU PF will govern until 2018, and may very well, as Stephen Chan argues, win that election too. It does not seem impossible, therefore, for the party to publicly indicate how succession will take place if it is not going to follow the (sort-of) explicit provisions of their constitution. If they are going to give us “guided succession”, well just give it to us, and then one problem can be solved – the matter of political confidence – and we can move onto the more fundamental problem of restoring the economy and giving citizens their livelihoods back.

But, thirdly, perhaps the issue is really that which Priscilla Misihairabwi-Mushonga pointed out, and is inherent in the immense powers of the presidency. As she pointed out, whatever constitutions say, Robert Mugabe is his own man, keeps his own counsel, makes up his own mind, and this is wholly opaque. Succession depends on what Robert Mugabe wants, and he gives us no clues. Thus, no matter what the national constitution says, no matter what the ZANU PF constitution says, no matter what the wise men of the AU and SADC think, and no matter what the international community wants, we, the Zimbabwean citizenry, wait for him to decide, as he has always done.

But, and here’s a thought, and raised at SAPES by a young mathematician from UZ, why do we citizens always wait for the elites to decide, and what can we do to get clarity? Join ZANU PF and demand a copy of the ZANU PF constitution? Try to use the courts to see whether there is the possibility that we can force ZANU PF into internal constitutionalism? Since the ZANU PF constitution, courtesy of their “overwhelming” victory at the polls in 2013, now is tacitly incorporated into the national constitution, don’t citizens have right to know explicitly what will happen and who will take charge? Or will we just meander along from “guided democracy” to “guided succession” and back to “guided democracy”? And why even bother with elections, just create a dynasty!

Tony Reeler, Senior Researcher

Key Statistics from the June 2013 Voters’ Roll


Today the Research and Advocacy Unit [RAU] launches a preliminary report on an audit conducted on the June 2013 Voters’ Roll. The audit was done initially at the request of MDC-T, but RAU has done the audit on the understanding that its analysis would be wholly professional and independent of any political party affiliation or consideration. RAU carried out a previous audit of the 2008 Voters’ Roll in 2009 – 2013 Vision – Seeing Double and the Dead. A preliminary Audit of Zimbabwe’s Voters’ Roll.

Embargoed copies of this preliminary report have been given to the Zimbabwe Electoral Commission (ZEC), with a request that the Commission makes this report available to all registered political parties contesting the forthcoming elections. This was done in an effort to assist the Commission, and all interested parties, in establishing the conditions for an election that conforms to the SADC Principles and Guidelines for the Holding of Democratic Elections, one of the conditions suggested by the SADC Facilitator as necessary for Zimbabwe to fully comply with the Global Political Agreement that SADC agreed to guarantee.

This preliminary report, however, raises very serious matters to be considered ahead of the elections, now to be held on 31st July, and, in short, suggests that there are serious shortcomings with the current Voters’ Roll. RAU will, in due course, issue a second, more comprehensive report on the June 2013 Voters’ Roll, and will hope to undertake a further analysis of the final version of the Voters’ Roll to be used in the forthcoming elections.

In brief, today’s report indicates the following:

·         Comparing the June 2013 Voters’ Roll with the 2012 Census, there are 63 Constituencies where there are more registered voters than inhabitants;

·         There are currently nearly 1 million potential voters aged under 30 years who are unregistered, but this may change in the aftermath of the intensive voter registration exercise;

·         There are well over 1 million people on the roll who are either deceased or departed;

·         That 40 Constituencies deviate from the average number of voters per constituency by more than the permitted 20%.

Copies of the full report can be obtained from the RAU website [www.researchandadvocacyunit.org].

The harassment of justice: A tale of a tale


A couple of months ago, I published “The Story of Beatrice Mtetwa-A Red Herring’ in which I posed a number of theories pertaining to Beatrice’s arrest. One of them was that Beatrice’s arrest was an intimidation tactic by state agents of all citizens who would wish to take the same stand as Beatrice; i.e. the stand to fight against any injustice visited upon individuals who are fighting for human rights and fundamental freedoms of citizens. I emphasised that Beatrice’s persecution and vilification was meant as an example calculated to ensure that sufficient fear was planted in all of us so that whoever doesn’t toe the correct political line, will face the full wrath of those in power, under the guise of the law.

This theory seems the most relevant given the continued onslaught that the state has launched against Beatrice. This blog however seeks not to over-analyse the reasons behind the onslaught but rather to give an update of how this case has proceeded.

  •  17 March: Beatrice Mtetwa was arrested in Avondale. On arrest she was charged with obstructing or defeating the course of justice in contravention of Section 184 (1) (g) of the Criminal Law (Codification and Reform) Act.
  • 18 March: at exactly 0151 a.m.  High Court Judge Charles Hungwe, from his home, ordered Beatrice’s immediate release. He argued that there was no basis for her continued detention since the allegations laid against Beatrice did not reveal a criminal offence.
  • 18 March: around 0230 a.m. Beatrice’s lawyers served Justice Hungwe’s order on officers at Rhodesville police station. The police officers refused to release Beatrice.
  • 18 March: Beatrice’s lawyers lodged an application in the High Court stating that the refusal by the police to enforce Justice Hungwe’s order was in contempt of court.
  • 18 March: Beatrice was told that she would appear in court on 19 March and based on this information her lawyers withdrew their application.
  • 18 March: Justice Hlatshwayo dealt with the withdrawn application and dismissed it with no reasons given.
  • 19 March: Beatrice appeared before Magistrate, Marehwanazvo Gofa, at Rotten Row Magistrates Court represented by Advocate Thabani Mpofu to determine her remand conditions. Advocate Mpofu argued that this hearing should not have been done in the Magistrates Court since an order of the High Court a more superior court had already granted Beatrice’s release.
  • 19 March: Advocate Mpofu argued that Beatrice had not been treated well in police custody because in the dead of the night, on 18 March two male police officers entered Beatrice’s detention cell at Rhodesville Police Station and attempted to uncover her from her blankets. Beatrice feared that she might be raped.  Further, she had not been allowed to bath since her arrest.
  • 19 March: the Magistrate ruled that the case was rightly before the Magistrates Court because the issue of her placement on remand was separate from the issue of her detention in police custody.
  • 19 March: Beatrice’s lawyers proceeded to request that she be remanded out of custody and gave reasons why she should be granted bail including that she is a highly reputable and established lawyer, with no criminal record.
  • 19 March: the Prosecution requested an adjournment to respond to Beatrice’s lawyers’ argument and the Magistrate adjourned the case to 20 March 2013.
  • 20 March: the State argued that Beatrice should not be granted bail because the charges she was facing were very serious, that she would likely abscond because she had a foreign passport, or that she would interfere with investigations if released and that her release would set a dangerous precedent. “Anarchy would prevail”, they argued.
  • 20 March: Magistrate Gofa bought into the prosecutor’s argument and dismissed Beatrice’s bail application and remanded her in custody to 3 April.
  • 21 March: Beatrice’s lawyers appealed this decision in High Court.
  • 22 March: Justice Joseph Musakwa heard the appeal.
  • 22 March: State requested adjournment of the appeal to ‘allow time to submit their response.’ Justice Musakwa agreed to the adjournment and set down the appeal hearing for 25 March.
  • 25 March: Justice Musakwa granted Beatrice $500 bail setting aside the Magistrate’s on the basis that Beatrice’s reputation was too great to be ignored and that the police had not shown how much of the investigation was left to be “interfered with.”
  • 3 April: Beatrice appeared before Donald Ndirowei for a routine remand hearing. Magistrate Ndirowei postponed the matter to 8 April to allow the State to determine a trial date and her lawyers to challenge her being remanded.
  • 5 April: the prosecution served Beatrice with papers setting out their case against her.  The prosecutors added fresh allegations against Beatrice.  The fresh allegations stated that on top of saying “Stop whatever you are doing, it’s unconstitutional, illegal and undemocratic,” as was the case in the initial charge, Beatrice had also said “You confused cockroaches”  “Murimbwa dzaMugabe” i.e. “You are Mugabe’s dogs” and that she had conducted herself in an ‘indecent’ manner when she threatened to relieve herself in a public place.The case named nine witnesses set to testify. These were:
  • Chief Superintendent-Luckson Mukazhi
  • Detective Assistant Inspector-Wilfred Chibage
  • Detective Constable-Ngatirwe Mamizi
  • Detective Sergeant-Taizivei Tembo
  • Assistant Inspector-Thabani Nkomo
  • Chido Chawanikwa-a police officer
  • Stembiwe Vera-a caretaker at Prime Minister Morgan Tsvangirai’s research and development office
  • Brian Mutusva-a computer technician in the Prime Minister’s Office and
  • Zororai Mudariki-a driver.
  • 8 April: Beatrice appeared in the magistrates’ court. The state’s case was led by Tawanda Zvekare, Acting Director of Public Prosecutions in the Attorney General’s Office, assisted by Michael Mugabe, a chief law officer.
  • 8 April: Beatrice was remanded on bail and the case was adjourned to 27 May when the trial was expected to begin.
  • 27 May: Beatrice’s case was set to start at Rotten Row Magistrates Court presided over by Magistrate Tendai Mahwe. The trial failed to start on time because Tawanda Zvekare, the Acting Director of Public Prosecutions in the Attorney General’s Office and Michael Mugabe, the chief law officer who were leading the prosecution did not arrive at the court on time. The trial was also delayed because the designated courtroom did not have the necessary equipment to record the proceedings. Then when eventually a courtroom with equipment was found, power went off.
  • 27 May: Magistrate Tendai Mahwe postponed Beatrice’ trial to 8 June 2013.
  • 8 June: Magistrate Tendai Mahwe recused himself from presiding over Beatrice’s trial after she had filed an application for such recusal stating that Magistrate Mahwe had already heard the testimony that her witness would give in another case.
  • 10 June: Beatrice’s trial kicked off at Rotten Row Magistrates Court presided over by Magistrate Rumbidzai Mugwagwa. She was represented by her lawyer, Harrison Nkomo. Beatrice pleaded not guilty to charges of defeating or obstructing the course of justice.
  • 10 June: Magistrate Rumbidzai Mugwagwa postponed Beatrice’s trial to Saturday 15 June 2013 to allow her lawyer to attend to some other matters in the High Court.
  • Meanwhile the trial continues with hearings held each Saturday and we wait to hear what the final verdict will be.

Anomalies with this case

  • Arrest of a legal practitioner while conducting her duties;
  • Contempt of court by police officers ignoring a High Court order;
  • Retrial by the Magistrates Court of an issue that had already been decided by a higher court;
  • Harassment of a High Court Judge for ordering the release of an upright human rights defender;
  • Display of political intolerance and disregard for constitutional and legal guarantees of freedom and rights of citizens.

**** If convicted, Beatrice stands to serve a maximum penalty of either a fine of $400 or 2 years’ imprisonment, or both fine and imprisonment. ****

 Acknowledgement goes to Zimbabwe Lawyers for Human Rights, Sokwanele, Veritas, Kubatana and a few other independent sources of information for the information resources used to compile this update.

ZIMBABWE’S DUAL LEGAL SYSTEM


Zimbabwe is often stated to have a “dual legal” system, whereby traditional customary laws run parallel to the formal and statutory laws of the State. However, it now seems increasingly possible to say that another duality is emerging, the law as it is and the law as interpreted by ZANU PF, its sycophants, acolytes and supporters, overt or covert. Curiously enough Dr. Madhuku has recently made several odd pronouncements on the law which are closer to the latter than the former and seem more in keeping with his announced intention to venture into politics, than as a legal expert.

His latest such pronouncement, if the Herald of Monday 17th June 2013 is to be believed, is that Mugabe is unable to approach the Constitutional Court, as requested by SADC, to extend the 31st July election date deadline, as was ordered in the Mawarire case on the 31st May, 2013. The apparent basis for this contention is that the Concourt is unable to alter an order which has already been implemented.

This contention is bizarre. Subsection 38(4) of the Electoral Act specifically allows the dates given in an electoral proclamation to be changed by the President. According to Dr. Madhuku’s argument, since the Constitutional Court order has already been implemented, the President would be free to use subsection 38(4) to move the election date beyond the 31st July, without being in contempt of court, as he had already implemented the order as required. This is manifestly not so. The clear import of the Concourt order is that whatever election date is proclaimed, either as originally set or as altered, it must be one which ensures that the election takes place before 31st July. (And here we are supposed to ignore the argument advanced by Dr Madhuku and the Minister of Justice in 2008 around the date for the Presidential run-off election, that “the election” does not mean the date of voting but the entire electoral process ending only upon the announcement of the result – an argument which now seems forgotten in applying the Concourt order).

It seems necessary to state the obvious. The logic of the Concourt judgment, and the order issued, is that the election date the President must set, must be one that ensures that the election is held before the 31st July. If he wishes to use section 38(4) to change this date, to avoid being in contempt of court, he must approach the court to indicate why he is unable to apply the order – as he did so many times before in the case of the court orders issued around the by-elections.

There is a difficulty here, however. The basis upon which the extension could have been requested has changed. Initially it seemed that the President could not comply with both the Concourt order and the Constitution and electoral legislation. The Constitution requires a 30 day intensive registration process which the parties agreed in Cabinet had commenced on the 9th June (though which the Minister of Justice has since claimed was somehow self- implementing the moment the new constitution was passed). The Electoral Act provided/provides that voter registration must end the day before the nomination court sits. Thus the nomination court could not sit before the 9th July, and, as the Constitution provides that elections can be held no sooner than 30 days after this, bringing elections to the 9th August, there could be no simultaneous compliance with the Concourt order. Furthermore, the new constitution also provided that the Electoral Act could not be changed once the election dates had been announced. As the constitutionally mandated amendments were unlikely to come before parliament before the 17th June, and the new constitution requires a minimum 44 day period between the proclamation of the election date and the election itself (now interpreted to mean election day), once again it seemed that the need to amend the Electoral Act meant that the Concourt order could not be complied with without breaching the Constitution.

The President attempted to deal with both these problems by use of the Presidential Powers (Temporary) Measures Act (PPTMA). He thus issued Regulations, purportedly under that Act, not only incorporating the amendments to the Electoral Act relating to proportional representation etc, but also, reportedly, to change the Electoral Act so that voter registration may continue after nomination day.

This then supposedly resolved the problem of the constitutional requirement of the 30 day intensive registration period and the difficulty of amending the Electoral Act before proclaiming the election dates. The extension of 31st July deadline on the ground of unconstitutionality was thus seemingly extinguished.

However, the Regulations issued under the PPTMA are themselves unconstitutional. This is not on the basis of section 134 of the new Constitution, which precludes Parliament from delegating its law making authority, as the Prime Minister’s office has suggested, since is not yet in effect. It is because both the old and new constitution specifically require that electoral law is made only “by an Act of Parliament” and emphasises this is so particularly in relation to voter registration, a provision, as noted above, that the President has purported to alter by Presidential Regulation and not an Act of Parliament.

In considering the extension of the July, 31st the Concourt may be asked to rule that using the Presidential Powers (Temporary Measures) Act, as the President has done, to alter the Electoral Act is illegal, and that the problems relating to the amendment to the Electoral Act and the 30 day registration period remain, rendering the 31st July date constitutionally impossible.

However, the same judges who will adjudicate this matter have been reluctant to interpret the PPTMA as being restricted in this way by the Constitution. In 2002 in the matter of Tsvangirai v Registrar General, when precisely this issue was raised, only Sandura JA dealt with the point, holding that the PPTMA could not be used to amend electoral legislation. The remainder of the judges sidestepped the issue, and (astoundingly) held that Tsvangirai did not have the right to approach the court (locus standi) on the matter. Furthermore, if the President or the Minister of Justice makes the application for the extension, neither of the two could be expected to suggest to the court that the use of the PPTMA to amend electoral legislation, was illegal, now the sole basis for the extension.

An alteration of the 31st July deadline will also be a tacit admission by the Court that its order in the Mawarire case was legal nonsense. It will thus be a matter of no little interest as to how these judges will approach the Application to change the date, which has now been filed by the President.

Derek Matyszak

19.06.13.