Financial Gazette (Harare)
Ray Matikinye
16 May 2008
Harare — MORE delays are expected in putting the March 29 synchronised elections to rest as both ZANU-PF and the Movement for Democratic Change (MDC) have filed petitions with the Electoral Court disputing some results in a number of constituencies in a bid to increase their parliamentary representation.
ZANU-PF is seeking to overturn results in 53 constituencies and regain control of parliament that it lost for the first time since independence from Britain almost three decades ago while the MDC is contesting 52 others in the hope of fortifying its grip on the House of Assembly.
The current parliamentary configuration, as determined by the initial poll results is untenable for anyone who wins the presidential run-off between President Robert Mugabe and MDC leader, Morgan Tsvangirai, proponents of a government of national unity, say.
But analysts note that the practical effect of such a steady drum-roll of petitions in a single election casts doubts on the electoral process and questions the "manner and integrity" of the Southern African Development Community (SADC) Election Observer Mission (SEOM) mandated to oversee the free and fair conduct of polls in member countries.
SEOM's poll verdict gave the now disputed election a clean bill of health. Officials must be ruing the fact that they seem to have blown the dust off their 2000 and 2005 election verdict template and presented it as fresh work.
The Tsvangirai-led MDC won 99 seats as opposed to ZANU-PF's tally of 97 while the Mutambara-led MDC formation garnered 10 seats. Together the two MDC formations hold 109 seats with polls still to be held in three constituencies, namely Gwanda South, Pelandaba-Mpopoma and Redcliff.
According to the Electoral Act the 105 petitions have to be finalised in six months.
But electoral law expert Chris Mhike expressed doubts that all the petitions could be determined in the stipulated period as required by the law.
"We have the problem of a justice system that is inefficient such that the final verdict might be academic," Mhike said citing cases arising from the 2000 and 2005 polls that were concluded when the outcome had become immaterial to either the petitioner or respondent.
After the 2000 the elections the then main opposition MDC filed 37 election petitions for its candidates.
One of the first petitions to be heard was brought before the courts by Moses Mare, an MDC candidate for Chiredzi North constituency in which the ZANU-PF candidate Elliot Chauke had been declared the winner and Mare protested that the election had not been free and fair.
The petition was heard early in June and the presiding judge delivered her judgment on June 20 declaring that Elliot Chauke was not duly elected as the Member of Parliament and that no other person was entitled to be duly elected.
Chauke appealed against the court decision.
Justices Chidyausiku, Cheda and Malaba eventually heard the appeal on June 14, 2004, almost five years after the petition was lodged.
By that time Chauke had served his five years in parliament and his term of office had expired.
Mhike said Section 172 of the Act gave the Electoral Court authority to make a final decision that was not "appealable on the question of fact but on a question of law."
"That provision takes away the overview role of the Supreme Court," Mhike added.
If, as insiders say, some of the petitions are a replica of the original petition for a recount conducted at the behest of ZANU-PF, which alleged gross irregularities in the electoral process, the electorate has a long, anxious wait ahead of them before the March plebiscite is put to rest.
If the petitions are also premised on claims that the opposition had sourced funds from the West, particularly from Britain, to bribe the Zimbabwe Electoral Commission (ZEC), to secure victory in the parliamentary polls, it would require all genius from the judge to pass a verdict "on a question of law," because both parties are culpable.
In another electoral petition involving Elton Mangoma of the MDC and Didymus Mutasa in Makoni North the judge conceded that good electoral practices had been flouted on the basis of irregularities.
Despite that verdict Mutasa continued to hold office.
Mhike said it seemed "now that contradictions in logic and rationale are becoming more and more a part of our domestic jurisprudence."
He said the workload on the Electoral Court would be enormous, considering that the same judges appointed to the court had to deal with other High Court cases apart from those related to the petitions.
Although judge president Justice Rita Makarau assured the public that the courts would hear the 105 petitions, there is little evidence to invest much faith in her pledge.
Exiled businessman, Mutumwa Mawere, warns about the grave risks that lie ahead for parliamentarians whose constituencies have been targeted for the reversal of results.
Mawere says there is the remote chance that the Electoral Court can rise to the challenge in as much as ZEC did with regard to the politically motivated recount.
"But I still believe that ZANU-PF will do whatever it takes to remain in power," he said.
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