The National Executive Committee of the MDC met in Harare today, to review among many other things developments in the courts which have a bearing on the Presidential Petition.
The Executive noted with concern that the Electoral Court has reserved judgement on the issue. It appears unlikely that the material requested will be made available before the hearing of the Constitutional Court. The MDC is extremely worried that the delay in making a determination on the availability of the material will seriously undermine the Presidential challenge, we therefore express reservations on the credibility of the court process in the absence of the crucial material.
1. There will be no trial and therefore no oral evidence will be adduced in this matter. This severely restricts the scope of the matter and any gains that we might have expected in terms of exposing the illegalities and irregularities that marred the credibility and legitimacy of this election.
2. The timelines assigned by the court for specific legal processes are inadequate and favour the opponents. They have had 7 days to study and respond to the petition and yet both are answering affidavits and heads of arguments are expected to be filed in a period of less than 24 hours.
3. Further and in any event apart from the 1st respondent, President Mugabe, the other respondents namely ZEC, its Chairperson and Chief Elections Officer, did not respond by the deadline of Thursday15 August 2013 as appointed by the court. Upon counsel’s enquiry we understand that they have said they have up to 8pm on Friday 16 August 2013. If the hearing is due to commence on Saturday 17 August this means we would have virtually no time to file the answering affidavit to those opposing papers. It means we would have been expected to file heads of argument without having had sight of the other key respondents’ response to our petition.
4. The approach and attitude of the High Court toward our applications for information and material that is necessary for the prosecution of our petition demonstrates the uneven ground upon which we are operating and what we have stated before that the judicial arena is not suitable for the resolution of what is essentially a political dispute. We filed our application last week on Thursday 8 August 2013 but despite the urgency it was only set down for a hearing almost a week later on Wednesday 14 August 2013, after the weekend and 2 days of public holiday.
When the matter was finally heard, after some delay, the presiding Judge, Justice Chinembiri Bhunu reserved judgement indefinitely. The manner in which the case was handled and the indefinite reservation of judgement is not commensurate with the urgency of its circumstances. These are the materials and information we would like to use in support of our petition. We are seriously handicapped by our inability to access these materials and information, some of which by law we should be given by the electoral authorities. Two weeks after the Election Day we still don’t have the electronic copy of the voters’ roll.
5. The concern is that these delays may be contrived to enable the surreptious manipulation of the voting materials and information. We do not have access to these materials and information and we do not know where they are. We might well be given access eventually but to materials and information that would have already been fixed. In the process we would have legitimized the illegitimate.
6. The new constitution guarantees the right to a fair hearing (Section 69). It provides that “in the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law”.
7. Further, the conduct of ZEC and its senior officers cited in the petition, is inconsistent with the requirements for administrative justice as provided for in Section 68 of the new constitution. That provision provides that “every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and substantively and procedurally fair”. On lawfulness, ZEC has failed to provide us with material such as an electronic copy of the voters’ roll 2 weeks after the election. It has not been prompt or efficient in its handling of our concerns as illustrated by its approach towards the voters roll or response to the petition whose deadline they have failed to meet. We have a legitimate expectation that ZEC would discharge its functions fairly and efficiently but this clearly has not been the case.
8. In addition, the management of this case had administrative components which must also be consistent with the right to administrative justice. The periods accorded to the execution of certain functions and processes have to be reasonable and fair. We do not think that the manner in which they have been set is in accordance with the provision of administrative justice.
9. It is clear that without this crucial material being availed, the MDC will be prejudiced in the prosecution of this important case.