Zimbabwe: Courts Ready for By-Elections Aftermath

The appointment of an Electoral Court of 18 High Court judges means that Chief Justice Malaba, the Judicial Service Commission and High Court Judge President Maria Zimba-Dube want to be ready for any eventuality and be able to deal with all challenges and petitions arising from the March 26 by-elections swiftly and effectively.

While only two judges are needed for such a court, putting in a full team takes advantage of the dispersal of High Court judges in recent years and also makes it exceptionally easy if a judge suddenly finds one of the candidates in some matter is a second cousin twice removed for the assignment to be quickly swopped with a judge who is not.

The Electoral Act itself lays down tight timelines for the submission of a petition and to avoid frivolous challenges does insist that a petitioner either deposits enough money to cover the costs of witnesses from both sides if they lose, or at least is able to submit promises by up to four responsible citizens with the adequate means to pay any costs. Winners do not pay costs.

The courts themselves have a degree of flexibility to get at the truth. Sometimes the matter can be decided on documents submitted, but often witnesses have to be called, and what is rare in Zimbabwean courts, an Electoral Court can summon a witness who neither party to the dispute has listed or called, and may very well not want, and that witness has to answer questions from the court and the parties.

In fact all witnesses have to answer all questions and cannot claim that their answer might incriminate them.

The basic function of an Electoral Court is to find out what happened and then see if this could have changed the result and then make the appropriate order, which could even involve declaring the person who originally came second the winner.

Minor mistakes, omissions or errors that have no effect on the result can be accepted, although those making them will have their knuckles rapped and may even have to pay some of the costs.

There is no need for a rerun or a change if it is clear that the winner would still have won easily without that error.

But if the court finds evidence of fraud, corruption or other criminal activity then reports are submitted to the National Prosecuting Authority for urgent investigation and action.

Electoral Court judges can sit alone or can sit with two assessors, chosen from a pre-approved list, to help them establish the facts.

This is important as there is no appeal from an Electoral Court on matters of fact, only on questions of law, and since almost all decisions by the court will be factual matters this means that most challenges will be permanently settled rather quickly and we will not have something lingering for years.

The whole system of handling petitions and challenges is to ensure that what the voters wanted is what the voters get and if there is a dispute a judge of the High Court will be the referee and has the powers to sort out the mess, if there is one.

While timelines and the like will help, as will the ability of the Electoral Court to hear 18 matters simultaneously, we will still have the propensity by some Zimbabwean lawyers to seek postponements and delays on trivial matters as well as substantive matters.

We hope the courts will be firm when dealing with these so the real job of the court, to find the truth, can be done speedily.

It should help that only candidates can submit petitions, with interested outsiders not having this right although obviously some may want to help a candidate. And the courts do require some evidence to be submitted, rather than vague statements or vague rumours. A statement that you should have won is not really good enough.

Candidates have the right to have an electoral agent at every polling station, and one of the reasons for that right is that if something goes seriously wrong then evidence is easy to assemble. A candidate who cannot find the required numbers of committed supporters to fill these slots is probably one who is highly unlikely to get more than a handful of votes.

And it is the losers who challenge. So this should cut delays unless the loser is simply grandstanding, and the courts can cope with that.

With the Chief Justice laying on a large team of judges to adjudicate disputes, there is no excuse for those who feel disgruntled to use other methods or launch popular campaigns, or “unleash their supporters” as one party leader has threatened. If they have evidence they can go to court and get a quick result.

And if they do not they should just keep quiet and congratulate the winner. Every election has winners and losers and, to use a sporting analogy, a loser can appeal to the “third umpire” in the form of the Electoral Court if they reckon the Zimbabwe Electoral Commission made an error that cost them votes, or if they think there was a foul the commission missed.

But disputes should go to those who can decide, and these judges do not indulge in social media debates but rather go flat out to find the probable truth and then in that clear light make the appropriate order.

The Zimbabwe Electoral Commission, of course, should and will go all out to get it right in the first place.

The commission may well want to have its own legal team standing by, if not yet on retainer, to be sent into action to examine the challenges, make the required responses and go into court to bat if a challenge gets that far.

Many challenges can be shot down easily if they are just launched to vex the system or put on some theatre for the supporters, but they still have to be considered and the Chief Justice has made sure they can be.

There might well be something serious that needs a judge to rule on the facts, and since there are 18 judges these can also be dealt with swiftly.

In fact, the Chief Justice reckons, with the appointment of the court running until just the end of August, that everything can be settled long before that date. We do not have to live in legal limbo forever.


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