Zimbabwe: 2008 Post-election - rising tensions and legal manouevres

Updated 25 August 2008

The continual delay in the release of the presidential results and the high stakes at risk in a constitutional regime where, such as in Zimbabwe, the presidency wields enormous power have fuelled mutual suspicion and tension between Zimbabwe African National Union - Patriotic Front (ZANU-PF) and the Movement for Democratic Change-Tsvangirai (MDC-T). ZESN (2008a) warned: "the delays [in releasing the presidential results] are now causing anxiety and speculations that are detrimental to the maintenance of peace and tranquillity. The continued delay by ZEC [Zimbabwe Electoral Commission] to announce the official Presidential result, might lead to suspicions of vote manipulation". Suspicions were further heightened when the ZEC closed the National Command Centre that was responsible for the verification and tabulation of the results, leading ZESN (2008b) to protest: "Considering all the anxiety and confusion that has been caused by the delayed announcement of Presidential results, ZESN expected the ZEC command centre to be open and accessible to accredited observers until the Presidential election results are announced".

The MDC-T, motivated by exactly the suspicions warned of by ZESN, instituted an application to the High Court for an order compelling the ZEC to release the presidential results that was heard on 6 April 2008 (Guma 2008a). On the other hand, at the same time, ZANU-PF alleged widespread irregularities and fraud in the count of the vote and demanded a recount in 16 constituencies, but later increased the number to 22 (Guma 2008a; Veritas 2008a). In General Notice 58A/2008 (12 April 2008) the ZEC ordered a recount of the Presidential, House of Assembly, Senatorial and local authority ballots elections in 23 constituencies on 19 Apr 2008 (Veritas 2008a). The MDC-T launched a further court application for an order that would declare a recount illegal; the High Court ordered a halt to the recount while it considered the matter (Muleya 2008).

On the 14 April 2008 the High Court dismissed the MDC-T's application for an order compelling the immediate release of the presidential results by the ZEC, without giving reason for the judgement (Muleya 2008; Mpofu 2008) In response the MDC-T called for an indefinitely prolonged general strike while the government ordered the deployment of security forces to quell civil unrest that might emerge and public gatherings and rallies were banned (Muleya 2008; Nyamhangambiri 2008; Mpofu 2008). In the meanwhile it emerged that the MDC-T had challenged the results of about 60 House of Assembly constituencies in the Electoral Court, accusing "Zanu-PF candidates and supporters of vote-buying, intimidating and interfering with presiding election officers and other election malpractices" (SABC News 2008). ZESN (2008c, 3) disclosed that the actual number of seats contested by MDC-T was 68, while ZANU-PF challenged the results of 53 constituencies.

Also on 15 April 2008, two would be presidential candidates whose nomination applications had been refused by the nomination court, Justin Chiota and Daniel Shumba (see 2008 Presidential candidates), sought an order from the Supreme Court, Zimbabwe's final court of appeal, declaring them legally nominated as candidates; should this application succeed the presidential election in it's entirety would have to be re-run (AllAfrica.com 2008).

The call for a general strike went largely unheeded and MDC-T leader Morgan Tsvangirai backtracked on earlier rejections of a run-off and expressed willingness to accept one if the poll was overseen by international observers (Marawanyika 2008). However, on the 17 April 2008 Justice Minister Patrick Chinamasa accused Tsvangirai of treasonous plotting with the United Kingdom to illegally overthrow the government, by requesting military intervention from the British government prior to the election (Mail & Guardian 2008b). The British Embassy (2008) issued a statement declaring that the letter on which the accusations of treason were made was a forgery. In the meanwhile the situation in the country, especially in the rural areas, descended rapidly into conditions of extreme violence (see Post-election violence).

The hearing of the MDC's petition to declare a recount of the votes illegal was postponed to 17 April 2008, and then again to 18 April (Mafaro 2008; Sibanda 2008). On the 18 April the MDC's petition was dismissed and the partial recount in 23 constituencies commenced on the 19 April (Veritas 2008b; New York Times 2008). The partial recount was finally completed by 30 April and the original winners of the House of Assembly and Senate constituencies were confirmed (see Post-election - the partial recount). On the 29 April, when it was clear that the recount would not affect the balance of power in Parliament, the two factions of the MDC, headed by Tsvangirai and Arthur Mutambara respectively, announced a cooperation agreement to ensure that the MDC gained control of the House of Assembly (Mafaro & Nyathi 2008).

On the 2 May 2008 the results of the presidential election were announced (see Presidential election results - first round). These disclosed that no candidate had won an absolute majority and that in terms of section 110 of the Electoral Act (Chapter 2:13 as amended), a rerun was required between the two leading candidates, Morgan Tsvangirai and ZANU-PF's Robert Mugabe. The MDC-T rejected the results, maintaining that according to their projections Tsvangirai had won with an absolute majority (see Post-election - parallel vote tabulations). Notwithstanding this, on the 10 May 2008 the MDC-T agreed to participate in a run-off, under certain conditions (Veritas 2008c; AFP 2008):

Run-off to take place within two weeks, not later than 23rd May
Cessation of violence
Unfettered access for international observers
SADC peacekeeping force on the ground
Re-constitution of ZEC
Free press - local and international

However, Patrick Chinamasa, the Minister of Justice, rejected "any outside interference - or 'any conditionalities outside our legislation'" (AFP 2008). Thereafter the chairperson of the ZEC, Justice Chiweshe, announced that the run-off would be held as soon as was practicable, but said that it was not logistically possible to hold the election by 23 May 2008 (Press Association 2008).

On 9 May, in response to a petition by an independent candidate in the postponed the Pelandaba-Mpopoma House of Assembly constituency election, the Electoral Court ordered that the President proclaim the date for the nomination court, for a by-election, within two weeks (Nhuka 2008). The elections in Pelandaba-Mpopoma, Gwanda South and Redcliff constituencies had been postponed as a result of the deaths of candidates, but no date for the nomination courts and by-elections had been proclaimed.

On 15 May ZEC gazetted Statutory Instrument 73A/2008 (in terms of the Electoral Act (Chapter 2:13), 192), which provided for the run-off to be held within 90 days of the 2nd May, that is on or before the 31 July 2008 (Veritas 2008b). The Statutory Instrument also postponed the proclamation of the date for the by-elections for the three National Assembly seats where voting was postponed due to the deaths of candidates; the intention expressed was to hold them concurrent with the run-off (Veritas 2008b). In further statutary instruments (78/2008, 79/2008; 16 May) ZEC fixed 27 June 2008 as the date of the run-off the by-elections (Veritas 2008e).

On 19 May the Electoral Court began to hear electoral petitions filed by ZANU-PF and MDC-T; in an attempt to meet the deadline prescribed by the Electoral Act 182, "Every election petition shall be determined within six months from the date of its presentation", the number of judges appointed to the court was increased (Sibanda & Nyamhangambiri 2008).

The MDC member of the House of Assembly for Buhera West, Advocate Matinenga, obtained a provisional High Court order on 23 May that the Commander of the Defence Force take "immediate measures to ensure that the army officers seconded to rural areas, particularly Buhera West, confine their operations within their constitutional duties in terms of section 96(1) of the Constitution" (Veritas 2008f). The text of the Constitution (1980) here reads that the Defence Force may be constituted for the "the purpose of defending Zimbabwe"; it was Matinenga's contention that the army was engaging in a campaign of terror in his constituency (Veritas 2008f).

On the 22 June 2008 Tsvangirai (2008) announced that the MDC-T had decided withdraw from the presidential run-off, citing as reason the violence unleashed on the people of Zimbabwe as a result of the MDC-T's victory in the 29 March election and claiming that: "This violent retributive agenda has seen over 200 000 people internally displaced and over 86 MDC supporters killed. Over 20 000 homes have been destroyed and over 10 000 people have been injured and maimed in this orgy of violence". The run-off proceeded under conditions of intense violence, however, and Mugabe was declared the winner (see 2008 Presidential run-off for more details).

On 1 July the African Union (2008) summit in Egypt passed a resolution that called for negotiations between Robert Mugabe and Morgan Tsvangerai and for a government of national unity. On 21 July 2008 a "Memorandum of understanding" (MOU 2008) was signed by the leaders of ZANU-PF and the two MDC factions in Harare under the auspices of South African President Thabo Mbeki as SADC Facilitator. The MOU committed the parties "to a dialogue with each other with a view to creating a genuine, viable, permanent and sustainable solution to the Zimbabwean situation" (MOU 2008, 2). The agenda of the talks included the objectives and priorities of a new government such as the restoration of the economy, the creation of a new political order, the ending of violence and the media; a framework for a new government; mechanisms for implementing the MOU; and a global political agreement (MOU 2008, 4).

On 1 August 2008 the Supreme Court ruled that the rejection of the nominations of Justin Chiota and Daniel Shumba as presidential candidates for the first round of the presidential election by the nomination court was invalid and Chiota then applied for an order from the Supreme Court nullify the results of the presidential election (Veritas 2008g).

References

AFRICAN UNION 2008 "Summit resolution on Zimbabwe", 1 July, http://www.kubatana.net/html/archive/demgg/080701au.asp?sector=&year=0&range_start=1 [opens new window] (accessed 5 Mar 2010).

AFP 2008 "Tsvangirai opts to fight Mugabe in Zimbabwe runoff", 10 May, [www] http://afp.google.com/article/ALeqM5geDTn30NAir2cqbQyMmCoTAC9ipw [opens new window] (accessed 5 Mar 2010).

ALLAFRICA.COM 2008 "Election shocker: Supreme Court could order re-run", 17 April, [www] http://allafrica.com/stories/200804170702.html [opens new window] (accessed 5 Mar 2010).

BRITISH EMBASSY 2008 "Alleged letter from the British Prime Minister to Morgan Tsvangirai", 17 April, [www] http://www.kubatana.net/html/archive/demgg/080417be.asp?sector=ELEC [opens new window] (accessed 5 Mar 2010).

CONSTITUTION 1980 (incorporates all amendments until October 2007), [www] http://aceproject.org/ero-en/regions/africa/ZW/zimbabwe-constitution-of-zimbabwe-2008-1 [PDF document, opens new window] (accessed 5 Mar 2010).

ELECTORAL ACT (CHAPTER 2:13), incorporates all amendments until 17 March 2008, [www] http://aceproject.org/ero-en/regions/africa/ZW/zimbawe-electoral-act-2008 [PDF document, opens new window] (accessed 5 Mar 2010).

GUMA, L 2008a "Judge defers ruling on MDC demand for election results", SW Radio Africa, 6 April, [www] http://www.swradioafrica.com/news060408/judge060408.htm [opens new window] (accessed 5 Mar 2010).

MAIL & GUARDIAN 2008b "Zim govt accuses Tsvangirai of treason", 17 April, [www] http://www.mg.co.za/article/2008-04-17-zim-govt-accuses-tsvangirai-of-treason [opens new window] (accessed 5 Mar 2010).

MAFARO, W 2008 "MDC election petition further delayed", ZimOnline, [www] http://www.zimonline.co.za/Article.aspx?ArticleId=3052 [opens new window] (accessed 5 Mar 2010).

MAFARO, W & NYATHI, P 2008 "Zim opposition unites against Mugabe", ZimOnline, 29 April, [www] http://www.zimonline.co.za/Article.aspx?ArticleId=3099 [opens new window] (accessed 5 Mar 2010).

MARAWANYIKA, G 2008 "Tsvangirai warms to run-off as strike flops", Mail & Guardian, 15 April, [www] http://www.mg.co.za/article/2008-04-15-tsvangirai-warms-to-runoff-as-strike-flops [opens new window] (accessed 5 Mar 2010).

MOU 2008 "Memorandum of understanding between Zanu PF and MDC", 21 July, http://newzimbabwe.com/pages/mbeki106.18509.html [opens new window] (accessed 5 Mar 2010).

MPOFU, P 2008 "Police accuse MDC of plotting violence", ZimOnline, 15 April, [www] http://www.zimonline.co.za/Article.aspx?ArticleId=3037 [opens new window] (accessed 5 Mar 2010).

MULEYA, D 2008 "Showdown As MDC Goes for Broke", AllAfrica.com, 15 April, [www] http://allafrica.com/stories/200804150001.html [opens new window] (accessed 5 Mar 2010).

NEW YORK TIMES 2008 "Election Officials in Zimbabwe Begin Partial Recount of March Vote", 20 April, [www] http://www.nytimes.com/2008/04/20/world/africa/ 20zimbabwe.html?_r=1&ref=africa&oref=slogin [opens new window] (accessed 5 Mar 2010).

NHUKA, I 2008 "Electoral court orders Mugabe to fix by-election date", Association of Zimbabwe Journalists, 15 May, [www] http://www.zimbabwejournalists.com/story.php?art_id=4133&cat=1 [opens new window] (accessed 5 Mar 2010).

NYAMHANGAMBIRI, S 2008 "MDC confirms national strike as tensions rise in the suburbs", Association of Zimbabwe Journalists, 15 April, [www] http://www.zimbabwejournalists.com/story.php?art_id=3936&cat=1 [opens new window] (accessed 5 Mar 2010).

NZOU, C 2008 "'We won't accept MDC preconditions for run-off'", ZimOnline, 6 May, [www] http://www.zimonline.co.za/Article.aspx?ArticleId=3123 [opens new window] (accessed 5 Mar 2010).

PRESS ASSOCIATION 2008 "Zimbabwe run-off deadline extended", 12 May, [www] http://ukpress.google.com/article/ALeqM5jRlI87wvI5z-gk87ue6wQ3nYXxIA (offline 5 Mar 2010).

SABC NEWS 2008 "MDC challenges parliamentary results", 14 April, [www] http://www.sabcnews.com/africa/southern_africa/0,2172,167654,00.html (offline 5 Mar 2010).

SIBANDA, T 2008 "Court delays vote recount hearing - yet again", SW Radio, 17 April, [www] http://www.swradioafrica.com/news170408/court170408.htm [opens new window] (accessed 5 Mar 2010).

SIBANDA, S & NYAMHANGAMBIRI, S 2008 "Court begins hearing election petitions", ZimOnline, 19 May, [www] http://www.zimonline.co.za/Article.aspx?ArticleId=3178 [opens new window] (accessed 5 Mar 2010).

TSVANGIRAI, M "MDC press statement on the presidential run-off", 22 June, [www] http://www.kubatana.net/html/archive/polpar/080622mt.asp?sector=POLPAR [opens new window] (accessed 5 Mar 2010).

VERITAS 2008a "Bill Watch 15/2008", 12 April 2008, Legal Brief, [www] http://www.legalbrief.co.za/article.php?story=20080415110254562 [opens new window] (accessed 5 Mar 2010).

VERITAS 2008b "Bill Watch 16/2008", 18 April 2008, Legal Brief, [www] http://www.legalbrief.co.za/article.php?story=20080421091639861 [opens new window] (accessed 5 Mar 2010).

VERITAS 2008c "Bill Watch 19/2008", 10 May 2008, [www] http://www.kubatana.net/html/archive/elec/080510veritas.asp?sector=ELEC [opens new window] (accessed 5 Mar 2010).

VERITAS 2008d, "Bill Watch Special", 15 May, Legal Brief, [www] http://www.legalbrief.co.za/article.php?story=20080516101119355 [opens new window] (accessed 5 Mar 2010).

VERITAS 2008e, "Bill Watch Special", 16 May, Legal Brief, [www] http://www.legalbrief.co.za/article.php?story=20080519093205164 [opens new window] (accessed 5 Mar 2010).

VERITAS 2008f, "Bill Watch 22/2008", 31 May, Legal Brief, [www] http://www.legalbrief.co.za/article.php?story=20080602092824813 [opens new window] (accessed 5 Mar 2010).

VERITAS 2008g, "Bill Watch 33/2008", 23 August, Legal Brief.

ZESN 2008a "ZESN urges ZEC to release Presidential election results forthwith", 15 April, [www] http://www.zesn.org.zw/newsflash_view.cfm?nfid=30 [opens new window] (accessed 5 Mar 2010).

ZESN 2008b "Serious concerns over closure of ZEC National Command Centre", 9 April, [www] http://www.zesn.org.zw/publications/publication_177.doc [MS Word document] (accessed 5 Mar 2010).

ZESN 2008c "Post-Election Update No 1, 30 March to 7 May 2008", [www] http://www.zesn.org.zw/publications/publication_192.doc [MS Word document] (accessed 5 Mar 2010).