MDC Legal Affairs Department report 2000 to 2005

General

When the first congress of the MDC was held in January 2000 very few people would have predicted that the ZANU PF regime would be prepared to go to such extreme lengths to hold onto power. Very few people anticipated that so many MDC activists would suffer at the hands of the ZANU PF regime as they have in the last six years. Over 300 MDC supporters had been murdered in cold blood. Hundreds of MDC supporters had been tortured.  Thousands of MDC supporters have been arrested, detained and prosecuted for spurious "offences".  Virtually every single MDC leader of any consequence has also been arrested and prosecuted. These cases ranged from the high profile treason or murder cases involving the likes of Morgan Tsvangirai, Welshman Ncube and Fletcher Dulini Ncube to literally thousands of other cases involving rank-and-file members who were charged with breaching fascist laws such as POSA.

During the same period the ZANU PF regime did all it could to subvert the electoral process and to frustrate the will of the Zimbabwean electorate. Accordingly it was necessary to challenge these unlawful actions through the courts to expose the fraudulent conduct of the regime. In this regard some 39 electoral challenges were brought following the June 2000 general elections, a major electoral challenge was brought challenging Robert Mugabe's election in March 2002 and some 15 electoral challenges were brought following the March 2005 general elections.  They were numerous supplementary applications brought around these cases, such as the application brought to the Supreme Court to obtain a copy of the electronic/computer version of the voters roll.

It has always been very important to remind Zimbabweans that the current fascist order Zimbabweans are subjected to is not the norm and that the MDC has a vision for a new Zimbabwe which embraces the rule of law, democracy, transparency and freedom.  Integral to that vision has been the development of a justice policy which was the responsibility of the legal affairs Department.  A concomitant role was to use Parliament as a forum to explain the MDC justice policy and the MDC's vision for a new constitution and a new democratic order in Zimbabwe. The legal affairs Department provided the MDC caucus with input in this regard.

A justice is not only achieved in the courts; it is achieved as well through the rehabilitation of the victims of human rights abuses.  In this regard the legal affairs Department has worked very closely with churches, other civic organisations and the MDC welfare officers to identify MDC members who have suffered materially and psychologically at the hands of the regime.  In the course of the last two years several hundred victims have been identified and a programme is under way to help these MDC members pick up the pieces of their lives through, for example, the reconstruction of their homes.  This is a massive programme which will require the raising of billions of dollars if the plight of all of these victims is to be addressed.

Defending MDC members arrested, detained and prosecuted

Regrettably accurate records are not available for the period 2000 to February 2003 as the party had not anticipated the onslaught that would befall MDC members and the recording of cases was done on an ad hoc basis rather than according to any system. Much of the abuse is recorded in the report entitled "playing with fire" produced by the Zimbabwean Institute in March 2004. An extract from the report gives some idea of the scale of the abuse:

	“Human rights violations

1.	Violations against self
More than 90% of MPs reported violations that had directly affected their own person, such as murder attempt, torture, assault, arrest, detention. MPs were almost twice as likely to report violations against themselves personally as candidates were, with 50% of the latter reporting violations against themselves. 
24% of MPs reported surviving murder attempts, and in some instances, MPs reported surviving several such attempts. 
22% of candidates reported surviving murder attempts. 
42% of MPs reported being personally physically assaulted and 16% reported torture. Torture included electro shock torture, being stripped naked and whipped, being beaten on the soles of the feet. In some instances such torture is reported as having taken place in police custody. 
32% of candidates reported assaults and none reported torture. 

2.	Disruption of campaign
Candidates were 3 times more likely than MPs, to report their campaign activities had been interrupted or that access to their constituency was limited during election 2000.  
100% of candidates reported interference with their campaign, compared to 30% of MPs.  Interference ranged from police refusal to allow rallies, or violent disruption of rallies, to arrest and assault while trying to enter a constituency to campaign. Candidates also mentioned not being able to access all or part of their constituencies because ZANU PF war veterans and supporters created “MDC no-go” areas. 

3.	Property violations
44% of MPs reported their homes vandalised, and in 6% of these cases this meant 100% loss of house and all property through arson. 
48% of MPs reported vehicles vandalised and 14% reported businesses vandalised, and in some cases loss was total. 
More than 50% of MPs reported at least one type of property loss, and 22% reported property losses in more than one category, such as vandalism of business and home. 

4.	Violations against family or staff
More than 60% of MPs reported attacks and/or threats involving immediate family, and nearly 80% of candidates reported this. 
Actual violence against family members was reported in 22% of MP families and 18% of candidate families. In one instance a candidate’s brother was beaten to death with iron bars (Pfebve) and in another instance a candidate from 2000 was himself beaten to death in 2002 (Nheya). 
In 3 instances, MPs reported murders of their staff.  One candidate reported staff murders. 
Nearly 40% of MPs reported having to relocate their families for reasons of safety after threats or attacks, and 64% of candidates reported this.” 

It should be stressed that these were violations against MPs. Thousands more MDC members were subjected to similar, and in some cases worse, abuse. Where possible and where necessary the Legal Affairs Department attempted to provide legal representation to those subjected to abuse. Since February 2003 accurate records have been kept which are in summary as follows:

Total cases handled 8th February 2003 – 31st January 2006

a)	Total number of cases reported to and logged 				  668
b)		Number of Victims arrested					              	3468
c)		Numbers reported to have suffered abuse during arrest or detainment 	  968

Of the total of 668 cases, details of 186 cases are still awaited.  “Harassment” has been used to describe these incidents when people have been detained for no reason but are or are perceived to be opposition supporters. There is often no charge or charges are dropped after harassment.
 
Period 8/02/03 – 30/09/95	
Current Period   Total to Date

a)	Public Order and Security Act (POSA)	 274		    12 		286
b)	Miscellaneous Offences Act	 (M o A)	   63		      8	        	  71
c)		Alleged Criminal Offences (Arson, Stock
Theft, Assault, GBH, Att. Murder, Robbery  	   93		      9	            102
e)	Electoral Act					   17		      3	              20
f) 	Treason                                                                1			                1
g)	AIPA						     2			                2
h)	Details still to be received (Harassment)	  191		     (5)	            186

There are currently a possible 373 cases still to come to court of which 152 had charges withdrawn before plea.  This leaves 211. Of the total 668 cases 186 cases have never been identified. It is more than possible that the 152 cases withdrawn before    plea may still be brought to court by way of summons. This has occurred twice in the current period.  This was the case in the run up to the elections where it was noted that a marked increase of summons were issued.   This was generally viewed as a further form of intimidation.

Charges are withdrawn before plea when the state has failed to provide evidence or have “mislaid” the docket.	

The State is entitled, under Zimbabwean law, to re-commence prosecution in any or all of those cases at any time. The activists who were charged in those cases therefore live permanently with the fear of re-arrest on charges which were false to begin with.

Four cases have resulted in a dubious “guilty” verdict and are being appealed.

Six cases have been dropped after being identified as being bona fide criminal cases.  These include stock theft, the burning of buses and possession of an unlicensed weapon. 

The number of “not guilty verdicts" and “charges dropped” announced is a clear indication that the charges brought are of a partisan intimidatory nature and harassment.  With the increased number of partisan judicial appointments that have and continue to be made, this trend is not likely to be reversed.

Fines were paid to avoid detention even though victims were considered innocent.
Current Situation:-
Period 8/02/03 
– 30/09/05	Current Period	  Total to Date

a)	Withdrawn before Plea 
(Face possible summons at a later date) 			154	             (2)	    152	
b)	Paid Fines 
(After admission of guilt to avoid imprisonment)			  22            22
c)	Acquitted 						  	  25	             11	      36
d)	Charges Dropped						  40	               6	      46
e)	Guilty							    4 	               1	        5
f)	Cases detail still awaited (Harassment)  
Not expected now						 191	              (5)	    186
g)	Total cases concluded					   91	             (18)	    109
h) 	Continuing cases including Withdrawn before plea	 386	             (13)   	    373
i)	Current Cases with out withdrawn before plea		232	             (22)	    211

Using civil law to expose fraudulent activities of the regime and to promote respectfully electoral process and human rights

One of the most important values of the MDC has been its commitment to the use of non-violent means to achieve political objectives.  Because of this commitment it has made a conscious decision to use the courts, subverted as they have become, as a means to expose the fraudulent activities of the regime and as a means to prove to Zimbabweans and the international community that the ZANU PF regime and Robert Mugabe are illegitimate rulers of Zimbabwe.

Challenges to the results of the June 2000 Parliamentary Elections

Some 40 cases were brought by the Legal Affairs department challenging the results of the 2000 elections results. The details of those cases are as follows:

A	ELECTION PETITIONS FILED BY MDC CANDIDATES WHICH WERE SUCCESSFUL IN THE HIGH COURT.  

CUM 
TOT-
ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT 
JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
1	1	Buhera North	Tsvangirai v Manyonda	Devittie J.	S Jarvis 
(A & C)	Trial commenced on 2/3/01.  Judgment given in favour of MDC candidate on 26/4/2001.  Reported in 2001(1) ZLR 295.  Appeal lodged by Zanu (PF) candidate. Several tapes of the record were stolen from a locked office at the High Court.  Some of the remaining tapes are inaudible.  The Judge’s notebooks are missing.  Consequently, appeal has not yet been heard.
	Preparation of the record, if this is possible.  Thereafter, hearing of the appeal.	
2	2	Hurungwe East 	Chadya
 v 
Maramuhoko	Devittie J.	S Hwacha 
(D M H)	Trial commenced on 16/2/01.  Judgment given in favour of MDC candidate on 26/4/2001.  Reported in 2001 (1) ZLR 285.  Appeal lodged by Zanu (PF) candidate.  A whole section of the appeal record is missing.  However, the Judge summarized the evidence in his notes.  The parties have agreed to proceed with the record as it is.  Appeal has not yet been heard.
	Preparation of the record, if this is possible.  Thereafter, hearing of the appeal.	

CUM 
TOT-
ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT 
JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
3	3	Mutoko South	Muzira 
v 
Muchena 	Devittie J.	T Biti
 (H & B)	Trial commenced on 15/3/2001.  Judgment given in favour of MDC candidate on 27/4/2001.  Reported in 2001 (1) ZLR 308.  Appeal lodged by ZANU (PF) candidate in January 2001.  Record has been transcribed.  Petitioner’s and Respondent's Heads of Argument filed. Appeal was set down for hearing in Supreme Court on 20/9/ 2004.  However, it was postponed on that date at the instance of the Chief Justice. Appeal heard on 4/11/2004.  Judgment reserved. 	Awaiting judgment of appeal from Supreme Court. 	
4	4	Chiredzi North	Mare 
v 
Chauke 	Ziyambi J.	B Mtetwa 
(K & I)	Judgment given in favour of M D C on 20/6/2001.  Appeal lodged by ZANU (PF) candidate on 4/7/2001.  Record recently transcribed. Appeal heard in Supreme Court on 14/6/2004.  Judgment reserved.
	Awaiting judgment of appeal from Supreme Court.	
5	5	Gokwe North  	Mlandu 
v Mkandhla  	Makarau J	L Uriri
 (H &B)	Judgment given in favour of MDC candidate on 15/1/2003.  Appeal lodged by Zanu (PF) candidate on 31/1/03.  Appeal record has been transcribed.   Heads of Argument called for in June 2004 but not received.  Consequently, i.t.o. R44 SC Rules, Registrar of Supreme Court has confirmed that appeal deemed to have been dismissed.  
	The Registrar of High Court should formally inform the Speaker of Parliament that the seat is vacant.  Thereafter, by-election should be held.  However, recently, the lawyer for the ZANU (PF) candidate has applied to reinstate the appeal.  No date yet set for that application.	

CUM 
TOT-
ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT 
JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
6	6
	Gokwe South	Muyambi 
v 
Machaya	Makarau J.	L Uriri
 (H & B)	Judgment given in favour of MDC candidate on 15/1/2003.  Appeal lodged by Zanu (PF) candidate on 31/1/03.  Appeal record has been transcribed.   Heads of Argument called for in June 2004 but not received.  Consequently, i.t.o. R44 SC Rules, Registrar of Supreme Court has confirmed that appeal deemed to have been dismissed.  

	The Registrar of High Court should formally inform the Speaker of Parliament that the seat is vacant.  Thereafter, by-election should be held.  However, recently, the lawyer for the ZANU (PF) candidate has applied to reinstate the appeal.  No date yet set for that application.	
7	7
	Makoni East	Mudzengerere 
v
Chipanga	Garwe J.P.	S Jarvis
( A & C)	Trial before Garwe JP concluded on 11/10/2001. Judgment in favour of the MDC candidate was only granted two years later on 22 October 2003.  Even later, the reasons for judgment were provided.  An appeal has been lodged by the Zanu (PF) candidate.  The record has not yet been transcribed.	Transcription of record.  Thereafter, hearing of the appeal.	

B	ELECTION PETITIONS FILED BY MDC CANDIDATES WHICH HAVE BEEN DISMISSED IN THE HIGH COURT. 
 
CUM
TOT-
ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
8	1	Chinhoyi	Matamisa 
v Chiyangwa	Garwe J.P	I Chagonda (A & C)	Judgment given in favour of ZANU (PF) candidate on 9/5/2001.  Appeal lodged by MDC candidate.  Appeal record transcribed.  Lawyers presently awaiting instructions whether to proceed.  Next stage is to inspect record of appeal. 	If so instructed, proceed to appeal.	
9	2
	Chiredzi South	Tsumele
 v 
Baloyi	Ziyambi J	B. Mtetwa 
(K & I)	Judgment given in favour of ZANU (PF) candidate on 20/6/2001.  Appeal lodged by MDC candidate on 10 July 2001.  Appeal record not yet transcribed.
	Transcription of record.  Thereafter, hearing of appeal.	
10	3	Chivi North	Chiondengwa 
v Mumbengegwi	Makarau J	 A Tsoka (Wintertons)	MDC candidate did not appear on the initial day of the hearing and, because of this, the Judge dismissed the petition.  Matter closed.
	Nil.  Matter closed.	
11	4	Goromonzi	Mapuranga v 
Murerwa	Hlatshwayo J.	S Jarvis 
(A & C)	Trial held in September 2001.  Judgment reserved.  Election petition by MDC candidate dismissed on 6 March 2002.  However, since then, despite repeated requests, no Reasons for Judgment given.  Consequently, MDC candidate unable, as yet, to lodge appeal.
	Awaiting Reasons for Judgment from the Judge in the High Court.  Thereafter, proceed to appeal.	
12	5
	Mberengwa West	M. Hove 
v 
Joram M.Gumbo	Hlatshwayo J.	B Mtetwa 
(K & I)	Trial commenced on 3/7/2001. Evidence completed on 26/7/2001. Petition dismissed on 6/3/2002. Reasons for Judgment only given on 9/4/2003. Appeal lodged by MDC candidate.  Appeal record transcribed.  Appeal heard in Supreme Court on 5/2/04.  Argued by Mr S Hwacha of D M H.  Judgment reserved.  	Awaiting Judgment from appeal in Supreme Court.	
CUM
TOT-
ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
13	6	Mt Darwin South	Mumbamarwo 
v 
Kasukuwere	Makarau J.	 I Zindi 
(K & I) 	Judgment given in favour of ZANU (PF) candidate in January 2002.  Appeal lodged by MDC candidate on 29/1/2002.  The record has been transcribed but the appeal not yet heard.   
	Hearing of appeal. No date yet set.	
14	7
	Murehwa North	Mudzingwa 
v 
Chitongo	Hlatshwayo J.	I Zindi 
(K & I)	Judgment given in favour of ZANU (PF) candidate in June 2002.  Appeal lodged by MDC candidate on 24/6/2002.  Record not yet transcribed.
	Transcription of record.  Thereafter, hearing of appeal.	
15	8
	Murehwa South	Nezi 
v 
Matiza	Ndou J.	A Mugandiwa (Wintertons)	Petitioner failed to attend court three times.  Court absolved Zanu (PF) candidate.  No further developments.  Matter closed.
	Nil.  Matter closed.	
16	9	Mwenezi	Masekesa 
v 
Shumba	Makarau J.	M Gwaunza (Wintertons)	Trial evidence completed on 25/10/01.  Judgment subsequently given in favour of ZANU (PF) candidate.  Awaiting instructions whether to appeal.	If so instructed, proceed to appeal.	
17	10
	Shurugwi	Matibenga v 
Nhema	Devittie J.	A Mugandiwa (Wintertons)	Judgment given in favour of ZANU (PF) candidate in April 2001.  MDC candidate decided not to appeal.  Matter closed.
	Nil.  Matter closed.	
18
	11	Zvishavane	Maruzani 
v Mbalekwa	Ziyambi J.	B Mtetwa
 (K & I)	Judgment given in favour of ZANU (PF) candidate on 23/3/01.  Appeal lodged by MDC candidate on 26/3/01.  Record of Appeal has been transcribed and now awaiting set down for argument.
	Hearing of appeal.	

C	ELECTION PETITION FILED BY A ZANU (PF) CANDIDATE WHICH WAS SUCCESSFUL IN THE HIGH COURT. 

CUM
TOT-
ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
19	1	Seke	Chiota 
v 
Mutasa	Ziyambi J.	B Mtetwa 
(K & I)	Judgment given in favour of ZANU (PF) candidate on 23/1/02.  Appeal lodged by MDC candidate on 30/1/2002.  Record eventually transcribed.  Set down for hearing in Supreme Court on 7/9/2004.  However the MDC died on 24/7/2004.and as a result the appeal was struck off the list. 

	By-election on 18/9/2004 won unopposed by P Chihota of ZANU (PF).  No MDC candidate stood in line with their recent decision not to contest elections at this stage.	

D	ELECTION PETITIONS FILED BY MDC CANDIDATES IN THE HIGH COURT BUT NOT YET COMPLETED

CUM                                                             
TOT-ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
20	1	Gokwe West	Sithole 
v 
Nyauchi     	No Judge allocated.
	L Uriri
 (H & B)	Petition filed by MDC candidate on 26/6/00.  Same constituency as petition filed by ZUD candidate in No. 41.  Petition filed by MDC candidate not yet heard.	Hearing of trial in High Court.	
21	2
	Marondera East	Munhenzva 
v
Sekeramayi	Initially Ziyambi J and later Ndou J.	I Zindi  
(K & I)	Election narrowly won by ZANU (PF) candidate.  Recount conducted but the original count was upheld.  Petition originally commenced before Ziyambi J before her elevation to the Supreme Court.  Petition then allocated to Ndou J.  However, despite numerous requests for a set down date, the petition has not been set down for continuation of hearing.
	Continuation of the hearing in the High Court.	

CUM                                                             
TOT-ALS	IND
TOT-
ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
22
	3	Mazowe West	Chigonero v 
Kuruneri	No Judge allocated.	S Jarvis 
(A & C)	The factual allegations to be led by the MDC candidate in this matter are similar to those led in the petition in respect of Goromonzi (11).  Because no reasons for judgment have been given in the Goromonzi petition, the petition for Mazowe West has not commenced.
	Reasons for judgment in the Goromonzi petition (11) should be given. Thereafter, the petition for Mazowe West should be heard in the High Court.	
23	4	Mazowe East	Mushonga v 
Chemutengwende	No judge allocated.	S Mushonga (Mushonga & Ass.)	Petition filed but not yet heard.

	Hearing in the High Court.	
24	5
	Mberengwa East	Holland v Rugare A. N. Gumbo	Paradza J.	B Mtetwa 
(K & I)	Hearing of petition commenced but then postponed in March 2002 sine die. The presiding Judge, Paradza J, has since been suspended.  No other Judge has been allocated to preside over the case.
	Continuation of hearing in the High Court.	

E	ELECTION PETITIONS FILED BY MDC CANDIDATES IN THE HIGH COURT BUT NOT PROCEEDED WITH

CUM
TOT-
ALS	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	LAWYER	STAGE REACHED	SUBSEQUENT EVENTS	
25	1	Bindura	Pfebve 
v 
Gezi	S Hwacha (D M H)	Before Petition was heard, Zanu (PF) candidate died.  
	By-election held on 28 – 29/7/2001. Won by Elliot Manyika of ZANU (PF).
	
26	2	Chikomba	Kaunda 
v 
Hunzvi 	B. Kagoro (K & I)	Before Petition was heard, Zanu (PF) candidate died.  	By-election held on 22-23/9/2001. Won by Bernard Makova of ZANU (PF).	
27	3	Chegutu	Matibe 
v 
Ndlovu	I Chagonda (A & C)	The MDC candidate was a successful black commercial farmer.  After he filed his petition, his farm was invaded.  He was forced to withdraw his petition.  
	 The MDC candidate was forcibly evicted from his farm and lost everything.  He has since left the country.	
28	4	Gokwe Central	Nyathi 
v Mupukuta	K Laue (K & I)	Petitioner is missing and his lawyers did not therefore proceed with petition. 
 	Matter closed.	
CUM
TOT-
ALS	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	LAWYER	STAGE REACHED	SUBSEQUENT EVENTS	
29	5	Gokwe East	Mudzori 
v 
Bhuka	A Machingauta (H & B)	Petitioner withdrew petition.  
	Matter closed.	
30

	6	Guruve North

	McCormack v Mazikana
	N Madya (Wintertons)	Delay in hearing.  Petitioner prejudiced and decided not to proceed.  	Matter closed.	
31	7	Guruve South	Chamanikire v Chininga	I Chagonda (A & C)	Petitioner decided not to proceed.  	Matter closed.	
32	8	Gutu North	Musoni v Muzenda	M Gwaunza (Wintertons)	Petitioner decided not to proceed.  	Matter closed.	
33	9
	Hurungwe West	Kanhema v Marko Madiro	S Hwacha (D M H)	Petitioner did not proceed with petition with the petition.  He defected to ZANU (PF).	ZANU (PF) candidate later died.  By-election held on 28-29/9/01.  Won by deceased candidate’s brother Phone Madiro of ZANU (PF).	
34	10
	Hwedza	Tachiveyi v Chigwedere	S Hwacha (D M H)	Petitioner did not to proceed with the petition.  	Matter closed. 
	
35	11	Kariba	Sigobole 
v Mackenzie	S Jarvis (A & C)	Petitioner applied to withdraw his petition after threats were made against him.  Since then, the petitioner has disappeared.  Matter in abeyance. 	Very unlikely to proceed.
	
36	12	Makoni West	Makuwaza v Mahachi	C. Lloyd (A & C)	Evidence was led at the trial of the election petition before Garwe J.  However, the ZANU (PF) candidate then died.  	By-election held on 8-9/9/01. Won by Gibson Munyoro of ZANU (PF).	
37	13	Marondera West	Chipangura  v Gwanzura	A Tsoka (Wintertons)	Petitioner did not proceed with the petition.  ZANU (PF) candidate later died.  	By-election held on 25-26/11/2000.  Won by Ambrose Mutanhiri of ZANU (PF).
	
38	14
	Masvingo South	Rioga 
v 
Zvobgo	I Chagonda (A & C)	Petitioner reached agreement with Respondent to withdraw petition.  
	Matter closed.  The ZANU (PF) candidate, Dr Zvobgo, died on 22/8/2004. Walter Mzembi of ZANU (PF) was elected unopposed after nomination court sat on 8/10/04.	
39	15
	Zaka West	Musimiki 
v Chindanya	Mwonzora & Associates, Masvingo (through Wintertons)	Petition withdrawn.  
	Matter closed.	
40	16	Zvimba North	Gomba 
v 
Chombo	C. Lloyd (A&C)	Petitioner did not proceed with the petition.  
	Matter closed.	

Challenge to the results of the March 2002 Presidential Election

In the run-up to the March 2002 presidential election numerous cases were brought in an effort to try to level the playing field. Most of them were brought against the Registrar General in an effort to obtain, for example, copies of the voters roll.  A schedule of the cases brought as listed below.

Schedule of main cases prior to and during the Presidential Election on
9 - 11 March 2002

1.	Morgan Tsvangirai vs. The Registrar-General and others:  Case No. HC12015-6/2001

2.	Morgan Tsvangirai vs. The Registrar-General and The Minister of Justice, Legal and Parliamentary Affairs:  Case No. HC11843/2001

3.	Morgan Tsvangirai vs. The Registrar-General and 2 others:  Case No.  HC12092/2001:

4.	Morgan Tsvangirai vs. The Registrar-General:  Case No.  HC65/2002

5.	Registrar-General and another vs. Morgan Tsvangirai:  Case No.  HC185/2002

6.	Morgan Tsvangirai vs. Tobaiwa Tonneth Mudede:  Case No.  HC758/2002

7.	Registrar-General and others vs. Morgan Tsvangirai:  Case No. SC30/2002 (Appealing to the Supreme Court against the order of Makarau J in Case Nos. HC12015/2001 and 11843/2001).

8.	Registrar-General vs. Morgan Tsvangirai:  Case No.  SC40/2002

9.	Morgan Tsvangirai vs. The Registrar-General:  Case No.  HC1847/2002

10.	Biti and another vs. The Minister of Justice, Legal and Parliamentary Affairs:  Case No.  SC46/2002

11.	Morgan Tsvangirai vs. Electoral Supervisory Commission and 2 others:  Case No.  HC1281-2/2002

12.	Morgan Tsvangirai vs. Registrar-General and two others:  Case No. SC76/2002

13.	Morgan Tsvangirai and another vs. Registrar-General and 2 others:  Case No. HC2800/2002

14.	Morgan Tsvangirai and another vs. Registrar-General and 2 others:  Case No.  HC2815/2002

After the election and electoral petition was filed on the half of the MDC President Morgan Tsvangirai on the 12 April 2002 in Case HC 3616. Numerous supplementary cases have been necessary to get the main cases to court. The respondents in that case including Robert Mugabe and the registrar General had done all in their power to delay the main Case. They have been assisted by the subverted judiciary. In a shocking violation of the constitutional right to have a fair trial within a reasonable period of time the presiding judge took over two years to hand down the reasons for dismissing the first stage of the Case which dealt with the legal and constitutional issues. An appeal against that judgement was filed in the Supreme Court in December 2005 and the MDC legal team is struggling to get that appeal set down as soon as possible.

Despite being compelled by the electoral act to deliver the voting materials to the High Court the registrar General, acting in brazen violation of the law and in contempt of the High Court, took over three years to do so. Accordingly an inspection of these voting materials could only commence in July 2005. Since then some 12 constituencies have been examined. A report will shortly be released to the High Court which in summary shows that when the figures arising from the inspection of the 12 constituencies are extrapolated it can be proved that conservatively some 490,000 were unlawfully included or excluded. When it is considered that the “winning margin” of Robert Mugabe was only some 418,000 votes (as announced by the Registrar General), it can accordingly be shown from the contents of the ballot boxes themselves that Robert Mugabe is the illegitimate ruler of Zimbabwe.

A schedule of most of the cases brought around the main case is attached below.

Schedule of main court cases after the Election Petition (Case No. HC3616/2002) was filed on 12 April 2002

A	Applications to Bring Election Documents to Harare

1.	Morgan Tsvangirai vs. The Registrar-General of Elections: Case No. HC 8225/2002

2.	Registrar-General of Elections vs. Morgan Tsvangirai:  Case No. HC8657/2002

3.	Morgan Tsvangirai vs. The Registrar-General of Elections: Case No. HC9021/2002

4.	Registrar-General of Elections vs. Morgan Tsvangirai:  Case No.  HC10149/2002

5.	Registrar-General of Elections vs. Morgan Tsvangirai:  Case No. HC10273/2002

6.	The Registrar-General of Elections Vs Morgan Tsvangirai:  Case No. SC428/2002

7.	Morgan Tsvangirai vs. The Registrar-General of Elections:  Case No. SC51/2003

8.	Morgan Tsvangirai vs. The Registrar-General of Elections:  Case No. HC879/2003

9.	Registrar-General of Elections vs. Morgan Tsvangirai: Application for Directions with Reference to Case No. HC9021/2002

B	APPLICATION TO PRODUCE DOCUMENTS IN ELECTION PETITION

10.	Morgan Tsvangirai vs. The Registrar-General of Elections:  Case No. HC469/2003

11.	Morgan Tsvangirai vs. The Registrar-General of Elections: Case No. HC470/2003

12.	Minister of Justice, Legal And Parliamentary Affairs vs. Morgan Tsvangirai:  Case No.  HC 471/2003

13.	Morgan Tsvangirai vs. The Registrar-General of Elections and The Minister of Justice, Legal and Parliamentary Affairs: Case No.  HC3175/2003

14.	Morgan Tsvangirai vs. Electoral Supervisory Commission:  Case No.  HC676/2003

15.	Morgan Tsvangirai vs. Electoral Supervisory Commission and Others:  Case No.  HC3922/2003

16.	Electoral Supervisory Commission vs. Morgan Tsvangirai:  Case No.  HC4082/2003

17.	Electoral Supervisory Commission vs. Morgan Tsvangirai:  Case No.  SC243/2003

C	APPLICATION TO PRODUCE VOTER’S ROLLS

18.	Morgan Tsvangirai vs. The Registrar General of Elections:  Case No. HC 3493/2002;

19.	Morgan Tsvangirai vs. The Registrar General of Elections:  Case No. SC 245/2002;

D	APPLICATION TO SET DOWN ELECTION PETITION FOR HEARING 

20.	Morgan Tsvangirai vs. Registrar, High Court and Others:  Case No. HC3653/2003

E	APPLICATION TO REMOVE REGISTRAR-GENERAL OF ELECTIONS AND MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS AS PARTIES TO THE ELECTION PETITION

21	Registrar-General and The Minister Of Justice, Legal and Parliamentary Affairs vs. Morgan Tsvangirai:  Case No.  HC 6168/2003

F	ELECTION PETITION 

22.	Morgan Tsvangirai vs. Robert Gabriel Mugabe and Others:  Case No. HC 3616/2002

In November 2005 a constitutional challenge was brought to the Supreme Court of Zimbabwe alleging that MDC President Morgan Tsvangirai's rights in terms of section 18 of the Constitution, namely the right to have a fair trial within a reasonable period of time, had been violated by the two-year delay occasioned by the presiding High Court judge failure to hand down his reasons for dismissing the first stage of the challenge to Robert Mugabe's election which dealt with the legal and constitutional issues. The Supreme Court in a recent judgement dismissed that application on the basis that the complaint should have been raised with the presiding judge himself!

Challenges to the results of the March 2005 Parliamentary Election results

Following the March 2005 elections the following challenges were brought:

Constituency Challenges of the 2005 Parliamentary Elections (Progress to 31st October 2005)

CUM
TOT-ALS
	IND
TOT-ALS	CONSTIT-UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
1	1	Gweru Rural	Renson Gasela 
V
Manyonda	Cheda	N Matonsi
(C & W)	Appeal to the Supreme Court against Electoral Court Judgement of 24th June 2005 withdrawn 29th August 2005. Petition originally set for 8th September 2005. Pre-trial conference 13th September 2005. Judge insists trial starts 16th September 2005 even in the absence of Respondents Legal Practitioner. Postponed until the 21st September 2005 and lasted nine days being completed on 3rd October 2005. Judgement 13th October 2005
	The court accepted that although food, intimidation etc. was used by PF functionaries as a weapon, this did not prove beyond reasonable doubt that this was instigated by the Respondent. Found in favour of Respondent.	

CUM
TOT-ALS
	IND
TOT-ALS	CONSTIT-UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS OUTSTANDING	
2	2	Makoni Nth	Elton Mangoma
 v 
D N Mutasa
	Uchena/
Makarau	Chris Mhike
(A & C)

T. Hussein, 
(Hussein Ranchod)	Filed 15/4/05. On 1/7/05 Uchena J rejected all challenge to appointments, refused to refer these, and directed P to file & serve docs by 20/7/05; R by 25/7/05; extra PTC on 27/7/05 and trial set for 3/8/05. P filed summary etc & proceeded regardless of validity of judges’ appointment, to highlight urgent issue of food politics.
After numerous witnesses on 10/10/05 Makarau J held that “the people of Makoni North were deprived of a free election” and villagers had been threatened with denial of food and [essential] agricultural inputs by local officials throughout the constituency - but found she was precluded by a new law from setting aside the election unless it was proven beyond doubt both that R /his agents were to blame and that it affected outcome. 	Petition dismissed but no award of costs. District administrator & a chief convicted of corrupt practices.

3	3	Goromonzi	Claudius Marimo
v 
Herbert Murewa 	Uchena/
Makarau	Sheila Jarvis
(A & C)

F G Gijima
F G Gijima & Ass.	Petition filed 15/4/05; recognisance paid 21/4/05   PTC 10/6/05 before Uchena J, switched to Makarau J; referral requested; postponed sine die.  Trial date later set for 30/9/05. No  appearance then for Petitioner who is First Applicant in Constitutional Case, SC 160/05; 	Makarau J formally dismissed EP13/05 with costs.	
4	4	Harare Sth	James Mushonga 
v 
Herbert Nyanhango 	Uchena/
Guvava	Sheila Jarvis
(A & C)
   
T Hussein
(Hussein & Ranchod)       	Filed  15/4/05 ; recognisance paid 21/4/05   PTC 14, 23 & 30/6/05 before Uchena J ; On 1/7/05 Uchena J rejected any challenge to the judges’ appointments, refused to refer these, and directed P to file & serve docs by  11/7/05, R by 18/7/05; and set trial date of 15/8/05  before Guvava J. 	Petitioner declined to appear then, &  Guvava J dismissed case with costs	

CUM
TOT-ALS
	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS/ARISING OUTSTANDING	
5

	5	Marondera East 	Ian Kay
v 
Sidney Sekeramayi 	Uchena/Makarau	Sheila Jarvis
Petition by Hwacha,  
Dube Manikai & Hwacha transferred to S. Jarvis, A& C [to avoid possible conflict]
(A & C)

T. Hussein, 
(Hussein & Ranchod)
	Filed 19/4/05; Recognisance paid 26/4/05; opposition filed 6 /5/05. PTC on 13 & 23/6/05 before UCHENA J; oral and written requests made for referral of appointments; but rejected Friday 1/7/05 by Uchena who instead directed P to file and serve by Monday 4/7/05; gave R until 11/7/05; and set trial date of 18/7/05 before Makarau J	Petitioner declined to appear at that stage, & Makarau J dismissed his case with costs.	
6	6
	Manyame	Hilda Mafudze
v
Patrick
Zhuwao
	Guvava/Makaru	Sheila Jarvis
(A & C)

T. Hussein, 
(Hussein & Ranchod)
	Filed 15/4/05; recognisance paid 21/4/05. On 1/7/05 Guvava J refused request for referral and directed P to file & serve docs by 22/7/05, R to do so by 4/8/05, and fixed trial date of 10/8/05 before Makarau J; Petitioner declined to appear then. 
	Makarau J dismissed her case with costs.	
7	7
	Gwanda	Paul Temba Nyathi
v
Abednicho Ncube

		Josephat
Tshuma
(W L & B)

M.Makonese
Makonese & Ptnrs
	Trial 27/09/05 – 	Judgement in favour of respondent 17th October 2005	
8	8	Insiza	Siyabonga
Ncube
v 
Andrew Langa
		 Josephat
Tshuma

(W L & B)	Could not serve 30th August 2005.Trial 4th October 2005 – 	Judgement in favour of respondent 17th October 2005

CUM
TOT-ALS
	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS/ARISING OUTSTANDING	
9	9
	Bubi Umgusa	Jacob
Thabane
v
Obert Mpofu	Justice Bere	Richard Moyo-Majwabu

(J M-M & N)	Petition lodged on the 14th April 2005 Trial originally set for 24th October 2005. Brought forward to 3rd October 2005 to avoid the deadline of 14th October 2005. Postponed from 3rd October to 5th October 2005. Respondent was not prepared. Pre trial conference 5th October 2005. Trial commenced 7th October 2005. Court also sat on Saturday and Sunday 8th and 9th October because of the dead line imposed of the 14th October. Inspection of ballot boxes and residue materials inspected on 11th October 2005. Trial completed 14th October 2005. Judgement 17th October 2005.	Trial completed 14th September 2005 
The court accepted that food was used by PF functionaries as a weapon, this did not prove beyond reasonable doubt that this was instigated by the Respondent and that such activities affected the outcome of the election. Bere found in favour of the respondent. 
	
10	10	Chimanimani	Heather 
Bennett
v
Samuel
Undenge	Makarau	Bryant Elliot

(C W & G)

F G Gijima
(F G Gijima & Ass).	Trial set down for 21/6/05 before Makarau J.   Adv. H Zhou briefed as Counsel for Applicant.  Counsel challenged Electoral Court not established lawfully and requested stay pending determination of this issue by Supreme Court in test case.  However Judge repeatedly ruled against and ordered to proceed with the Election Petition.   No option but to withdraw but before doing so on 29/6/05 filed an application direct to Supreme Court in terms of Section 24 of Constitution of Zimbabwe.  Application presently outstanding.   Also filed an appeal with Supreme Court against the judgement of Makarau J which is still outstanding.	Petition withdrawn under protest on 29/6/05 after Makarau J rejected any referral and threatened petitioner with contempt	

CUM
TOT-ALS	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS/ARISING OUTSTANDING	
11	11	Gutu South	Eliphus
Mukonoweshuro
 v 
Shuvai Mahofa	Guvava	Bryant Elliot

(C W & G)

W J Mutezo
Mutezo & Co.	Trial commenced 4/7/05 before Guvava J.  Advocate E Matinenga
Briefed as Counsel for the Petitioner who requested referral and stay; Guvava J refused on 7/7/05.  No option but to withdraw under protest on 13/7/05.   An appeal filed with Supreme Court against judgement of Guvava J.  Appeal still outstanding.		
12	12
	Mutasa South	Edwin Maupa
v 
O Muchinguri
	Uchena/Guvava	Sheila Jarvis/Innocent Gonese
(A & C/G & N)

T Hussein
(Hussein & Ranchod)     
	Filed 19/4/05;  Recognisance paid 25/4/05; Opposition filed 19/5/05; PTC 31/5/05 & 30/06/05 before Uchena J;  who refused referral, directed Petitioner to file & serve docs by  1/8/05, Respondent  by 10/8/05; and set down for trial on  22/8/05 before Guvava J. 	Case then transferred to Makarau J, who dismissed it with costs when P declined to appear at that stage.	
13	13	Mutasa North	Eveline Masaiti
v 
Mike Nyambuya	Guvava/Uchena	Chris Mhike
(A & C)

J S Mandizha
(Mandizha & Ass)	Filed 15/4/05; Opposition filed 9/5/05; Formal request for referral made 16/6/05 re validity of appointments, confirmed in writing 20/6/05, opposed 23/6/05;  Guvava J accepted appointments doubtful but refused referral on 1/7/04  & directed P to file & serve Issues, Summary of evidence, &  Discovery Affidavit by 14/7/05, R by 21/7/05; and set case down for Trial before Uchena J on 25/7/05	Petitioner declined to appear at that stage, & Uchena J dismissed case with costs	
14

	14
	Gokwe	Aaron Chinahara
v 
Lovemore
Mupukuta	Uchena 	Alex
Muchadahama

(M M & M)

F G Gijima 
(F G Gijima & Ass)	Filed on 15/4/05.  Pre-trial hearing set for 20/6/05 then re-scheduled for 7/7/05.  Further postponed to 13/7/05.  At hearing Court indicated trial to commence 18/7/05.  PTC postponed again to 15/7/05. Postponements due to parties’ failure to gather evidence and contact witnesses timeously.   An application for postponement of trial till determination of Electoral Court judges’ appointments but this was dismissed.    	Petitioner advised could not proceed and court had no option but to dismiss the petition.   	

CUM
TOT-ALS	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS/ARISING OUTSTANDING	
15	15
	Nyanga	Douglas
Mhonzora
v 
P Kazima	Uchena	Sheila
Jarvis
(A & C)

J S Mandizha  
Mandizha & Ass.                                     

	Filed 21/4/05:  recognisance paid & served 25/4/05; opposition filed 19/5/05. On 17/6/05 & 27/6/05 at PTC Guvava J was requested to refer all judges’ appointments to Supreme Court before proceeding. 1/7/05 she accepted there was real question over these appointments but refused to let it be decided first. Instead she directed Petitioner to file & serve docs by 22/7/05, R by 4/8/05 & set Trial date of 10/8/05 before Uchena J.  Petitioner filed summary etc & on 10/8/05 told Uchena J he would lead evidence regardless of judge’s authority, to highlight urgently issue of food politics. All agreed to proceed to trial but on new trial day a new query was raised re filing date. Judge got a letter from ZEC on official announcing of results [critical to deadline for filing, but had to be done by constituency, not by ZEC] without allowing other evidence of the disputed facts	On 8/9/05 Uchena J dismissed case hearing evidence on petition’s merits, holding it was barred on 15/4/05 by shortened new time limit.	
1	1
	All Constituencies	MDC
v
Chief Elections
Officer		Sheila
Jarvis/Chris
Mhike	A problem was found in all the judges’ appointments, which had not been done in accordance with any of the Constitution’s provisions. The Chief Justice & Judicial Services Commission tried to rectify this, but could not properly do so without authority first from Parliament, which they have not been able to get yet. 

Continued….
	All the judges’ orders dismissing cases for no appearance at this stage will be invalidated automatically if the Supreme Court upholds MDC’s  complaint about their appointments.

Some petitions have proceeded into evidence regardless of this problem so as to urgently draw attention to the politicisation of handouts of food and agricultural inputs	

CUM
TOT-ALS	IND
TOT-ALS	CONSTIT-
UENCY	PARTIES	HIGH COURT JUDGE	LAWYER	STAGE REACHED 	MATTERS/ARISING OUTSTANDING	
1	1
	All Constituencies	MDC
v
Chief Elections
Officer		Sheila
Jarvis/Chris
Mhike	Continued ….

The Minister has refused to accept any error, claiming the legislature could appoint judges for an electoral court however it wanted, while still ousting the jurisdiction of the High Court and severely restricting any appeals to Supreme Court in electoral disputes. 
The issue is now pending in a test case in the Supreme Court. 
The judges in all cases were asked to refer this to the Supreme Court for its decision first, or await its decision before proceeding, as they cannot give any enforceable orders before being properly appointed.
They refused to do either, and petitioners have not appeared further, to avoid an appearance of recognising them now. Their no-shows followed threats from the judges to gaol petitioners   for contempt if they raised the question about their appointments further.
Such threats had forced some petitioners to withdraw under protest.
On 13th May 2005 at a meeting called by the Judge President to discuss rules and procedures, MDC asked for new Rules to give the new electoral court the traditional inquisitorial/investigative powers, as by law no electoral authorities could be cited in these petitions. 

No new rules have been made. Original Application 27th May 2005. Last conference 26th August 2005. No trial date as at 11th October 2005

Conclusion

Some have questioned why so much effort has been taken in challenging these results. Clearly not a single MDC member has got into parliament as a result of these cases and, in the case of the presidential challenge, Robert Mugabe is still firmly ensconced in office. It has either been absolutely vital that these cases be brought for the following reasons. 
1.	The cases reaffirm the MDC's commitment to respecting the rule of law even the when the judicial system has been subverted by the regime.
2.	The cases themselves had served a valuable purpose in destroying whatever legitimacy the regime may have had.
3.	The cases provide a valuable record for the future as they detail numerous human rights abuses including crimes against humanity.  The time will come when this evidence will be used to secure Justice on the half of the thousands of Zimbabweans who have suffered under the brutal ZANU PF regime.  The time will also can win the same evidence will be used to bring to justice those responsible for these human rights abuses and crimes against humanity.

Developing the MDC justice policy

In the courts are last six years very detailed Justice policies have been developed by the legal affairs Department in conjunction with the National Council and the national executive. Time and space to not permit the details of these policies to be included in this report. Suffice it to say that they are comprehensive and when implemented will ensure that Zimbabwe has a new and democratic constitution and a legal order that will usher in a new dawn of freedom, transparency, justice and democracy.

Restoring the lives of MDC members who have been brutalised by the ZANU PF regime

As indicated above of the MDC legal affairs Department has worked very closely with churches, civic groups and the MDC welfare officers to identify several hundred MDC members who have suffered materially and psychologically during the last six years. Whilst this programme is in its infancy scores of MDC supporters have already received assistance through this programme. Ongoing efforts are being made to identify victims and to verify their claims and it is hoped in the course the next few years that some of their suffering will be alleviated. The say there is a mammoth exercise and the success of that is largely dependent on sufficient resources being mobilised to t repair the material and psychological damage which runs into billions of dollars.
 
The Hon. David Coltart MP
Secretary for Legal Affairs
MDC legal affairs Department
20th February 2006