An opinion circulated by the Citizens Coalition for Change explaining its decision not to go to court to challenge President Emmerson Mnangagwa’s disputed re-election on August 23, 2023:

Article 11.7.1 of the SADC Principles and Guidelines Governing Democratic Elections reads as follows:

POST-ELECTION PERIOD: 11.7.1 During the post-election period, the SEOM shall Observe:

11.7.1.1 The conduct of procedures and processes concerning electoral complaints and challenges by citizens, prospective voters and those seeking election, including the provision of effective remedies for violations of electoral-related rights.

Inherent in this principle is that domestic remedies available in terms of the laws of a member country must be effectual. An aggrieved party who can show that domestic remedies are not effectual, is not obliged to exhaust them.

Domestic remedies present themselves largely in the availability of judicial remedies. It is those that must be evaluated before a party can be required to exhaust them.

In the case of Zimbabwe, those remedies are not available at all. The Zimbabwean judiciary is fully and faithfully captured. Infamously, President Emmerson Mnangagwa has bragged that he is the army, the police and “the judiciary”, a claim typified by the continued incarceration of Citizens Coalition for Change (CCC) senior official Job Sikhala on trumped up political charges which were meant to exclude him from the elections. Indeed, one of the CCC candidates, Godwin Hakata, won the national assembly elections whilst in prison, having been arrested for taking part in a car procession on his way to a sanctioned rally.

Zimbabwe lacks a functional separation of powers. The executive fully controls the judiciary and that has been enabled by a skewed appointment system in terms of which President Emmerson Mnangagwa has stuffed the courts with his sympathisers. Though Zimbabwe has a public interviews system, that precedes the appointment of judges. It is an open secret that the results of those interviews have been religiously ignored.

This lack of separation of powers has led to the politicisation of judicial institutions. Various judgments that have come out of the courts show beyond any doubt that the judiciary is disposed towards Mnangagwa and does not consider itself bound to the constitutional ideal of independence.

For this reason, even judges whose behaviour has been errant, have upon pledging loyalty to Mnangagwa, been spared from giving account. A case in point is that of Justice Webster Chinamora whom the Judicial Service Commission recommended must face a tribunal arising out of misconduct.

Though Mnangagwa is constitutionally enjoined to appoint such tribunal, he has not done so to date.

Going into the elections, justice Chinamora heard more than ten electoral challenges, found in all against the challengers and is definitely paying back Mnangagwa for his decision to protect him.

In that regard, it must also be noted that the Chief Justice designated all High Court judges as Electoral Court judges but only a handful, being not more than five judges, heard matters in the Electoral Court.

The following, however, puts beyond any doubt the fact that no judicial remedies are available to the CCC in the aftermath of the disputed non-election of August 23, 2023.

The Chief Justice

In terms of the Constitution of Zimbabwe 2013, Chief Justice Luke Malaba ought to have retired on May 15, 2021, when he turned 70 years. In a bid to ensure that he would be available to deal with

any electoral disputes in 2023, having come to his aid in 2018, Mnangagwa unlawfully amended the Constitution and extended Malaba’s retirement age to 75, the first time a whole constitution was amended to accommodate one person, and a judge at that. The extension was a fool’s errand because in terms of the constitution, any extension of a term limit must not benefit the incumbent.

The matter was litigated upon. At the High Court, three judges, all of whom have now been victimised in various ways, held that Malaba’s term could not be extended and he was obliged to proceed on retirement. Mnangagwa’s government was incensed and responded through the minister of justice Ziyambi Ziyambi in contempt of court and issued various threats to those and other judges.

In a bid to rescue Malaba, Mnangagwa had a third party bring litigation before the Constitutional Court which sought to nullify the judgment of the High Court. This notwithstanding that Malaba and his fellow judges, who had been cited in the litigation, had themselves appealed to the Supreme Court.

Notwithstanding that the Constitutional Court judges were cited in the litigation and had exercised their right of appeal, they sat as a court, in a matter in which they were interested and nullified the judgment of the High Court.

As a result of this judgment, Malaba has continued in office.

In the run up to the elections, Malaba issued orders in Chambers in the Saviour Kasukuwere matter without hearing parties. He solely dismissed applications that could only be dealt with by seven judges. He has shamelessly played the part for which he was hired.

In any petition, Malaba would be the one to sit in judgment. He has already played his hand in a manner consistent with the unlawful extension of his tenure. It is inconceivable that having had his tenure extended by Mnangagwa under these unlawful circumstances he could turn against him in the most crucial matter of Mnangagwa’s political career.

As it happens, a few months before elections, Malaba was the first to receive undue gifts from Mnangagwa’s administration in the form of an ex-gratia payment of close to US$500,000. This is in direct breach of the principle of the independence of the judiciary. That the gift was received straight from Mnangagwa’s minister of finance and not from the Judicial Service Commission does make a bad situation worse.

The case of Bharat Patel

One of the judges who wrote the Constitutional Court judgment which nullified the High Court judgment which had found that neither Malaba nor any of the constitutional court judges could benefit from the extension of tenure was Bharat Patel. Seven months after writing the judgment, Patel became its first beneficiary and had his tenure also extended by Mnangagwa. He continues to sit on the constitutional court bench and is one of the judges who must hear the presidential petition in the event of it being filed.

Patel, just like Malaba, had his tenure extended for purposes of the 2023 electoral litigation.

The Bribed Judiciary

Just a couple of months before August 2023, all judges of the Constitutional Court received an ex gratia payment from Mnangagwa’s minister of finance. They received some USD$400,000. These payments are not part of their conditions of service. The payments are not loans. No agreements of whatever nature were signed by them and the nature of the arrangement has been left deliberately fluid.

These are bribes and the fact that they were received some few months before the elections is telling.

This matter has been raised in parliament by Temba Mliswa, who was an independent MP until the recent elections.

Now all these judges are expected to sit in judgment and deal with a matter that affects their benefactor, who recently gave them undue gifts.

As it happens, five of these judges also received payment from Metbank in 2018 after the presidential petition hearing. These payments were also never part of their conditions of service and have to this very day not been declared.

Bogus Electoral Judgments

Leading to August 2023, a lot of litigation bearing on the conduct of free, fair and credible elections was brought. All the matters bar one (the Bulawayo 12, and even then on appeal and after a massive push back) produced bogus judgments. As far as the Constitutional Court is concerned, it was predominantly seized with the Kasukuwere matters which were all resolved on bogus grounds.

These challenges brought are key because they speak to some of the matters that must of necessity be raised in any petition. A brief rundown of some of the matters is imperative:

Markham v ZEC. This matter was brought by an opposition parliamentarian who enforced his right to be given a voters roll. The application was dismissed although the Electoral Act (Chapter 2:13), makes it clear that any Zimbabwean is entitled to a copy of the voters roll. The voters roll that was used in the elections was not given to candidates.

Mwonzora v ZEC. This is a matter brought by one of the opposition leaders in which he challenged the delimitation exercise. The application was dismissed although all the political parties concerned accepted that the delimitation exercise was unlawful. In dismissing the application, the courts did not say the delimitation exercise was lawful.

Statutory Instruments and Amendments to Electoral laws. The Mnangagwa administration sought to amend the constitution through a statutory instrument after the proclamation of the election dates. Two issue arose. First, a statutory instrument could not amend the constitution. Second, no law could be amended for purposes of elections once an election was proclaimed. Notwithstanding its clear merit, one of these applications failed and the other is yet to be determined.

Next was the security cantonment case on ring fencing Dzivarasekwa Barracks. It too failed.

Mangwana v Kasukuwere. This is a case brought by a Zanu PF activist which sought to bar a presidential candidate from contesting in the elections. The former Zanu PF candidate enjoys support in the Mashonaland provinces and his participation would have made rigging in those provinces difficult. The relief granted in this matter strengthened Mnangagwa’s hand.

The Bulawayo 12. Twenty four cases were brought seeking to bar the Bulawayo 12 from contesting. In the High Court, the applications were granted on bogus grounds. What is even more illuminating is that the applicants, all Zanu PF activists, relied on documents that the CCC had no access to and which they could only have been given by ZEC.

Double Candidates. During the nomination process, the Forever Association of Zimbabwe (FAZ) lodged nomination papers on behalf of certain individuals in order to create double candidates. The double candidates plainly admitted that they had not paid nomination fees and were accordingly not involved in the process of their nomination. Indeed, when a challenge was brought, FAZ procured for all of them legal representation by a single firm of legal practitioenrs. Although their nomination had nothing to do with the CCC, upon a suit being brought by the CCC seeking a declaration that they were not its candidates, one of the Electoral Court judges who has a complaint pending against him, heard the matter and dismissed the application. An appeal was lodged but the Supreme Court flatly refused to hear it and even rejected heads of argument that had been file by the CCC. Resultantly, there were double candidates during the elections to the prejudice of the CCC.

Final voters roll case. The voters rolls given to candidates had discrepancies with the list of polling stations issued which made it clear that this was not the voters roll that was going to be used during the elections. This matter was placed before the same judge who had heard the first voters roll case and he once again, as he had done with the first one, dismissed it.

Observers. Certain local observers were barred from exercising their functions on bogus grounds. A challenge brought by them was unsuccessful though the action taken against them was both unlawful and unprecedented.

The rallies. The CCC had more than 110 rallies banned in the run up to the elections. Challenges brought against these bars failed. In certain instances, courts would set down the challenges on dates that were after the scheduled rallies. This was particularly the case in Bindura where the CCC was meant to have its election campaign launch rally.

Bail denial. In Seke constituency, CCC members including a chief election agent for a candidate were assaulted by Zanu PF officials. When they sought sanctuary from the police, they were promptly arrested and denied bail. They continue in custody. On the other hand, Zanu PF agents who murdered a CCC supporter lawfully going about his own business in Glenview, were all admitted to bail. Cheza, a losing CCC candidate who narrowly lost to a candidate responsible for the disappearance of a police officer who had refused to be used by Zanu PF, is himself in custody over flimsy complaints, having been arrested a couple of days after the elections.

Ballot papers case. Contrary to its statutory obligations, ZEC did not advise political parties of the details relating to the printing of ballots, their number and related issues. When it was taken to court, it undertook to avail those details by August 19, 2023. It then purported to give such details on the 18th instant but refused to provide the serial numbers. Elections were held before this matter was finalised and it is now known that whilst ZEC claimed to have printed ballot papers, there were no such ballots in all opposition strongholds on voting day.

Inauguration. To crown this all, the Chief Justice has officiated at the inauguration ceremony before the period set by law for a challenge to the presidential election has lapsed.

All these cases demonstrate a pattern, all too perceptible and which it would be ill advised for the CCC to ignore.

Political Judges

Of the seven judges in the Constitutional Court, two of them sat in the MDC matter which led to the eventual enforced formation of the CCC. Although the MDC had held its elective Congress, these judges held that in the interests of democracy, it had to go back to its 2016 structures. The idea was to remove Nelson Chamisa as leader of the MDC.

What is largely of concern is that this unacceptable judgement was handed down when the country was under a complete lockdown. Courts were closed but were only opened for purposes of handing down that judgment. This was a deliberate move meant to ensure that no protests would attend upon the handing down of the judgment. That judges had this for a consideration and were prepared to break the law in order to contain a reaction cannot be got over.

These circumstances show that these judges are unfavourably disposed against the opposition in general and Chamisa in particular.

The 2018 Petition

The judges who must hear any petition in the year 2023 are the very same judges who sat in 2018 and produced a controversial judgment in favour of Mnangagwa, which has been criticised by academics and judges alike. The Supreme Court of Malawi emphatically refused to follow the judgment which has received worldwide condemnation. There is no chance that these judges could dispense any justice this time around.

Threats

Apart from being naturally beholden to Mnangagwa, the Constitutional Court judges, just like all other judges, are routinely threatened by the Mnangagwa regime. The statement issued by the minister of justice is a case in point. It is of significance that even SADC has itself received threats from the Mnangagwa regime. The matter is exacerbated by the fact that Zimbabwe is a securocratic state.

SADC’s and other missions’ own observations

SADC has in its own report, properly noted that the legal playing field is not even and that the judiciary is fully captured. This has been the case with reports by other missions.

Summation

For all these reasons, the Citizens Coalition for Change cannot expect an impartial hearing from Zimbabwean courts. For that reason, there are no domestic remedies available to it.