Musings on the ConCourt judgment

26 Aug, 2018 - 00:08 0 Views
Musings on the ConCourt judgment Chief Justice Luke Malaba

The Sunday Mail

Below are excerpts from Constitutional law expert Professor Lovemore Madhuku’s interview with Zimpapers Television Network (ZTN) on the Constitutional Court application made by the MDC-Alliance to nullify the July 30 Presidential election results


Significance of evidence

Everyone should appreciate that when you go to a court of law, it’s different from going to a court of public opinion. The only aspect required in a court of law is evidence and the best evidence is primary evidence.

That is what the court was saying. This is why the court was saying if you wanted to produce the primary evidence you had to go through the process of recounting to at least get the evidence that there was some form of manipulation, not just to speculate. That is what the courts said.

Independence of Judiciary

I think there is no reason to doubt the independence of Judiciary. The reason why this process was open to everyone and broadcast live on national television and radio was for everyone to see what was going on. What you saw was the clear presentations by the applicant. The applicant brought in the evidence.

There was some evidence that was missing and the judgement came out clearly saying that all you needed to prove your case was just your V11 forms. The courts said if you are saying the elections were rigged, just bring to us the 10 985 V11 forms so that you can prove your case. That did not happen. What then do you expect the court to do?

I think the issue of the independence of the Judiciary does not arise in this case because this matter was decided purely on the absence of the evidence from the applicant.

I think the issue of the independence can be decided on another matter, not on this one. It would be very unfair to raise the issue on this case. You cannot go to court with political arguments.

Political arguments without legal leg

You had the best examples of political arguments in that case. For example, saying that I heard over the news that 100 000 people voted in Mashonaland Central by a certain time and that by 7 pm when there was the counting, the votes were over 400 000. On that basis of a news item, you cannot surely consider that as evidence.

Accommodation of late application

I think that clearly the court should be strict with its rules, but justice overrides the rules and in this case the court did the right thing.

It is a well-established principle that the court controls its own processes, it controls its own procedures and must take into account the public interest.

If they had gone with the rule, I’m sure there would have been an outcry, like the court is being technical.

But in this case, they hinted that that was the way to go, when they heard the matter they said we will hear all things together.

So today (Friday), they said the applicant had not followed the proper procedure, they had breached the rules notwithstanding the way they were arguing on social media, but we will condone that; let’s go to the evidence. They didn’t have the evidence; that could not be condoned because they are now bound by law to decide matters strictly in accordance with the evidence.

They have a discretion in condoning departure from rule or breach of rule, but they have no discretion to condone departure from the law.

Regional lawyers

I must emphasise that we have some of the best lawyers in this world, we compete very well with any country.

In many instances, we have better lawyers than the lawyers in South Africa and to actually then go out and say for this particular case I want to get three lawyers from South Africa when you saw the talent that was coming out on Friday, it is undermining the national pride.

Secondly, it shows that he is not Presidential material. He is not fit to be President. If you want to argue a matter and you were almost elected by the people, but you have no faith in your own colleagues around you. . .He is just a recent graduate from our university, we are proud of the legal skills of our graduate.

Actually, I know those three lawyers that were here, they would not have done any better than what the three of ours did.

Concept of just and equitable

That is not an independent provision which would allow the court to abandon the other aspects and start thinking about what is considers just.

I must explain that Section 92 allows an aggrieved candidate to challenge the validity of an election.

So the only question that was before the court is: was this a valid election?

And they must answer that question.

And when you talk about whatever is just and equitable, they must answer the question: was this a valid election on not?

If it is not a valid election, then that is when that thing arises as they are required to order a new election within 60 days.

If they do not order a new election, they might have room for what is called a run-off, they would have found one of the candidate declared may not have the 50 percent plus one vote.

It is totally outside the scope of the court (to order a GNU) because that matter is simple – was this the winner validly elected?

The issues to do with how do you create governments, these are covered elsewhere in the Constitution and the court is just a creature of the Constitution and can only act within it.

So just and equitable is not a license for the court to order anything.


Zimbabwe no longer requires any of these things. We need to work with other countries. It is not acceptable for any country in the world to start saying this is the way I want to relate with Zimbabwe, then that is not correct.

And I think we should try to unite as Zimbabweans and say we will deal with our problems. We will improve our democratic frameworks and economic management systems, but let us do it together without any form of sanctions.

Costs in a legal ruling

The issue of the costs is just a technical thing. When you say dismissed with costs, you mean that the applicant will have to pay costs…not all. These are whatever the lawyers for ZEC, the lawyers for Mr Mnangagwa, they charged their clients some money but then you don’t pay everything, there is some tariff that the court charges.

So the winning parties will actually prepare a bill in accordance with the tariff of court for everything that they did, including drafting letters.

There are two types of costs: there are costs on an ordinary scale and costs on a client and legal practitioner scale. If he has been asked to pay on a client and legal practitioner scale, he would actually refund the winning parties, that is ZEC and President Mnangagwa, whatever they would have paid their lawyers.

So this is on an ordinary scale, there is a tariff, if a lawyer spends a day in court, there is a tariff which is not the usual charge.

Zimbabwe’s Constitution

There are so many areas which need to be addressed (in the Constitution). That’s why we are a separate party different from other parties, we are maintaining the name NCA (National Constitutional Assembly) so that we focus on the Constitution.

The main problem with our Constitution is the absence of checks and balances in that it creates an all-powerful President. Under President Mugabe, we all know how powerful the President was. The current President may just be opening up space, but if he chooses to go strictly by the Constitution, he can still become a very powerful President.

There is one area which was challenged in the Concourt although it was ill-founded on the basis of absence of evidence. Let’s say how you put in place the electoral commission. We still have a commission which is put in place by a Presidential appointment. The chairperson is appointed by the President and then the other eight people are appointed through some Parliamentary committee. Political parties in Parliament do get involved.

In other countries, it’s a very different process of appointing, you really need a consensus on a candidate to be a chairperson, and you get what is called an all-party consensus. You don’t want to be dictating as to what should go in. I think there is need for a discussion which is well-informed on it.

Take the gender composition of Parliament and all other institutions, we are now having less women in Parliament than we had previously. Even the attempt to have 60 women, it’s because of the absence of a broad-based approach to proportional representation. It will be better you split the MP into not just the 60 women, but still have a hundred of so MPs getting in under proportional representation so that even small parties can get candidates.

What you got into the Constitution was a compromise between political parties. I think what you should have is an independent body that goes to the people and genuinely asks. Politicians can come later. For example, the argument that you should amend the Constitution to increase the age of being a President from 40 years, it is something that you should not implement as politicians but you should go to the people and see if that is what they want. Its broad-based debate that is required.

Amendment of Electoral Act

One of the problems in the last election was political parties saying they want electoral reforms two weeks before the election when they had five years to do that. After the Concourt declaration and inauguration, we have about five years, let’s talk about Constitutional reform and electoral reform. For example, the V11 forms, there should be no ballot boxes to move as long as you have people at each and every polling station confirming the number of votes at each polling stations. It will remove this thing of suspected ballot stuffing.

Polling agents

Zanu-PF and the MDC-Alliance got support for polling agents per polling station. I do not know administratively why they didn’t turn up. You choose your own polling stations but the State will support. You get the State support to get agents so that you don’t say I don’t have. You must have a polling agent per polling station who will declare and finalise the result there.

Difference between an Advocate and a lawyer

There is not much difference. In our case, there is no difference but there are countries that use two groups of lawyers. There are lawyers that will be applied to set their parties as a partnership and to take up clients from the streets. There would also be those kinds of lawyers that have a limited audience for superior courts such as Supreme Court and Constitutional courts. Some lawyers sit there, they do not get clients. There can be lawyers that will look for clients and they will be lawyers to instruct or to go to court. There will be lawyers who will just be there to prepare the papers and go to court, having been asked by another.

In Zimbabwe, Advocates are self-titled. You finish your training as a lawyer and you can just call yourself Advocate. We have what we call a fused profession, any lawyer can go to any court.

Legal jargon

These terms, which are not common to many people, are the terms that the lawyers prepare to use in court. Out of those three presentations by lawyers in the Constitutional Court, you saw presentations by (Tawanda) Kanengoni; he was speaking very simply. A lawyer can choose to be very simple. This was a high-profile case and some of the lawyers may have deliberately chosen to be flamboyant. I should state that people must not have a problem with any of the styles.

Closing remarks

I would really urge Zimbabweans to get a hold of the Constitutional Court and use it as a basis for electoral reforms. That is the best way of getting value. Everything that he complained about, let’s look at each of these things and see how we can improve our laws so that we do not have to face it again.

Each election should allow us to improve efficiency for the next process, that is what all societies do.


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