The Herald (Harare)

7 August 2013

Zimbabwe: Tsvangirai Risks Embarrassing Himself - Analysts

Legal experts and political analysts say MDC-T leader Mr Morgan Tsvangirai will embarrass himself if he approaches Sadc, the African Union or the courts complaining about the electoral outcome. Observer missions from Sadc, AU and other regional and international organisations have already endorsed the polls saying they were conducted in a peaceful, free and fair environment.

Several heads of state from across the world have congratulated President Mugabe on his win and Zimbabweans in general for conducting a peaceful poll. The experts said approaching the same organisations with unsustainable claims was tantamount to insulting the bodies.

The MDC-T has disputed the elections outcome that saw President Mugabe winning the Presidential race by over 61 percent to Mr Tsvangirai's 34 percent. He said his party was going to approach Sadc, the AU and the court to ensure another election is called.

Former Attorney-General Mr Sobusa Gula-Ndebele said the AU and Sadc have already made their comments about their observation of the electoral process.

"I suppose if you want to hit the wall, it's your democratic right. I suppose in this environment he is free to approach whoever he wants to but what result he will get out of it is something else," said Mr Gula-Ndebele.

University of Zimbabwe law lecturer Professor Lovemore Madhuku said Mr Tsvangirai was free to approach any organisation but would embarrass himself. "Their (Sadc and AU) decision will be informed by their own observer missions. Even if someone goes to the AU, it will not start afresh. It will rely on what its missions have said. There is nothing new in this. It has happened in other countries as well. Once an observer mission has given a position that is the position that binds.

"The fact that it sends an observer mission in the first place is to be the basis upon which they will make any decisions. So he is entitled to go to those bodies but I think he is almost assured of getting an answer which is consistent with the views that have already been made.

"It will be like insulting those organisations going to them when they have already advised him to concede defeat. Our advice to him is that he should just concede defeat," said Prof Madhuku, who is also chairperson of the National Constitutional Assembly.

Prof Madhuku said going to Sadc, AU and the Court at the same time were inconsistent remedies. "You have to choose one. In terms of Section 93 (3) of the Constitution, it clearly indicates that the Constitutional Court must hear and determine a petition or application and that its decision is final.

"Once our court has agreed that the President was duly elected then there is nobody in the world that can change that position. They must just make a hard choice between going to Sadc and AU for political reasons or to the Constitutional Court where they will be expected to leave the matter entirely in the hands of the court which court is unlikely to interfere with the gap of about a million between the winner and the loser. The only remedy available is to concede defeat," said Prof Madhuku.

Another lawyer Terrence Hussein of Hussein and Ranchod Legal practitioners said it was a futile exercise to expect the African bodies to change their position that the elections were successfully conducted.

"They have made a pronouncement that people on the ground who were qualified to observe who did the observation, I think two bodies cannot overrule what their own bodies saw with their own eyes on the ground.

"I think he knows that it is a losing battle but I think he doesn't care about the outcome. He just wants to put as much pressure as he can to try and comfort himself about the results that came out.

"I think he wants to do as much as he possibly can to keep the question of the election in doubt. He wants to try and prevent finality in the whole thing as a political strategy.

"He is pretty welcome to go to the courts but the problem that he has is that courts work with facts. So political grandstanding and hashed up figures that we have seen flying around may not be sustainable in court," said Mr Hussein.

Political analyst Mr Godwine Mureriwa said Mr Tsvangirai was going to embarrass himself if he approached Sadc, AU or the courts.

"It's an exercise that is going to be futile because Sadc has been involved throughout the process just like the African Union as they monitored and observed the elections. For anyone to approach those organisations again and try to seek recourse over issues that are not substantial, I think it's just a waste of time," said Mr Mureriwa.

He said approaching the courts over unsustainable claims would not help the MDC-T as well.

Zimbabwe Union of Democrats founder Mrs Margaret Dongo said the MDC-T was supposed to just accept defeat than embarrass themselves and their followers.

"Tsvangirai's intention to go to court is self defeating. I think he will be exacerbating the damage of his party to the extent that they won't be able to stand up. Going through the court is not an easy thing because if they lose the case, it further de-motivates the supporters.

"I wish he had accepted defeat because his loss is not because of anyone but his weakness. There are multiple factors that led to his loss. This is what he is forgetting.

"Suppose if I was his advisor, I wouldn't advise him to go to court because the margin is too high. The first question is, are his supporters agreeable that he should go to court? What about people from MDC-T who won the elections, are they agreeable to that because if the election result is turned down what guarantee do those people have that they will win the seats again? He is further creating disunity within his party. He should remember that it is not the first time that Zanu-PF has achieved a two-thirds majority in Parliament," said Mrs Dongo.

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