HARARE – Zimbabwe’s controversial July 2018 parliamentary elections, which saw President Emmerson Mnangagwa returned to power in the face of national and international disputes about both the process and results, are once again in the spotlight – this time about one of the initial election court challenges.

Gift Konjana, who won the Chegutu West constituency parliamentary seat for the opposition Movement for Democratic Change Alliance (MDC-A) party, is still being prevented from becoming a Member of Parliament two years and eight months since winning the majority vote, despite appealing to the courts for justice.

Last week, Supreme Court judges Justices Bharat Patel and Chinembiri Bhunu dismissed Konjana’s appeal challenging the pronouncement of the ruling Zanu PF party’s candidate, Dexter Nduna, as the winner.

Justice Patel, while admitting that the appeal had merit, said the case could not be heard because it had exceeded the time limit stipulated by the Electoral Act.

Background to the Controversial Case

After the Zimbabwe Electoral Commission (ZEC) had added up the votes incorrectly and announced Nduna as the winner of the Chegutu West parliamentary seat, ZEC quickly admitted their mistake, corrected their figures and declared Konjana the winner.

However, ZEC then claimed that only the Electoral Court could reverse their wrongly announced result. An application was therefore filed immediately with the High Court on August 6, 2018.

According to the Zimbabwe Constitution and electoral law, the State must “ensure the timely resolution of electoral disputes.” (Section 155 (2) (e) of the Zimbabwe Constitution).

More specifically, cases have to be finalised by the Zimbabwe courts within six months of the election: “Every election petition shall be determined within six months from the date of presentation.” (Section 182 (1) of this Act). Appeals “shall be determined within three months from the date of the lodging of the appeal.” (Section 182 (2)).

After 14 separate visits to the High Court to get the case finalised and the correct ZEC result confirmed, Justice Mary Zimba-Dube dismissed the case on a technicality. She claimed that the case had been wrongly presented by Konjana’s lawyers.

An appeal to the Supreme Court was immediately launched by Konjana’s legal team and was lodged at the beginning of November 2018.  According to the Electoral Act, the Supreme Court must finalise such electoral cases that go to appeal within three months, in this case by the beginning of February 2019.

Despite this requirement, it took until May 24, 2019, for the Supreme Court to finally hear the case. When they did, Justice Rita Makarau, a judge of the Supreme Court who has had significant experience with ZEC and electoral issues, accepted that the case should be heard.

Heads of Argument had not been filed by Dexter Nduna’s lawyers, however, so the Supreme Court postponed the case.

Two months later, on the July 29, 2019, the Supreme Court convened again, this time with a different bench led by Justice Bharat Patel. Once again, the court did not look at the substance of the matter because Justice Patel was concerned that he needed to consider whether the case could continue, given that appeals should have all been finalised by the Supreme Court within a maximum of three months. The requirement would have therefore been early February 2019 – nearly seven months previously.

After that, another 20 months went by, and despite letters to the Registrar of the Supreme Court and the Judicial Services Commission, as well as various meetings and visits, no judgment was forthcoming by Justice Patel and his fellow judges.

Dexter Nduna Sworn-in Despite Losing Election

In the meantime, Zanu PF’s Dexter Nduna was sworn into parliament as a lawmaker – with the substantial salary and other benefits that accrue to a member of parliament – even though ZEC had recognised that he had received fewer votes than Gift Konjana.

“We are appalled at the way in which our legal system and judges have unlawfully delayed this case,” said Ben Freeth, spokesperson for SADC Tribunal Rights Watch. “The Constitution and Electoral Act compel the judges of the Supreme Court to follow laid down time periods. The Supreme Court was 27 months late in finalising the appeal according to the stipulated time periods in Zimbabwean law. Put plainly, the Supreme Court of Zimbabwe has not followed the law.”

It has also taken the Supreme Court two years and eight months after ZEC’s acknowledged error for the Supreme Court to finally hand down judgment on the case. Additionally, it has flouted democracy by stating that the rightful winner is unable to take up his seat in parliament because of delays by the courts.

“This is nothing short of ridiculous,” said Freeth. “It demonstrates starkly the desperate state of democracy and the rule of law in Zimbabwe and sends a worrying signal to both the traumatised Zimbabwean people and the international community.”

As the Zimbabwe Human Rights NGO Forum commented in its August 2019 report titled: “The New Deception: What Has Changed?”, the disputes resulting from 2018 elections have “left the country more deeply divided than at any other time in the past, with government struggling to build consensus around unity, national dialogue and almost everything else.”

EU Election Observer Mission Report

As the European Union’s Election Observer Mission pointed out in the executive summary of its 2018 election report: “[Zimbabwe’s] legal framework provides for key rights and freedoms for the conduct of competitive elections. However, …. delays in adjudication, dismissal of court cases on merely technical grounds and a number of controversial judgments compromised the right to an effective legal remedy.”

SADC Tribunal Must Be Restored

“This debacle in the Zimbabwean courts demonstrates the critical need for the reestablishment of the regional human rights court, the Southern African Development Community’s SADC Tribunal,” said Freeth.

The SADC Tribunal was illegally closed down in August 2012 at the instigation of then President Robert Mugabe, with the support of South Africa’s previous president, Jacob Zuma, and the other SADC heads of state.

President Zuma was taken to court by the Law Society of South Africa for his participation in the closure of the SADC Tribunal, which was the court of last resort for the 345 million SADC citizens.

On December 11, 2018, South Africa’s Constitutional Court ruled that President Zuma’s participation in the decision-making process and his own decision to suspend the operations of the SADC Tribunal were unconstitutional, unlawful and irrational.

Similarly, the Tanzanian High Court ruled that the Tanzanian government had violated its obligations under the SADC Treaty.

Kaajal Ramjathan-Keogh, Executive Director of the South Africa-based Southern Africa Litigation Centre, which supported the legal cases against Zuma, said the Tanzanian High Court’s ruling reinforced the view that decisions of the SADC summit “must be founded in law”. She noted that for the original tribunal to be revived, any other SADC member states that had signed the 2014 protocol would also have to withdraw their signatures.