Paul Zibi

 Dr Simbarashe Tembo 

Zimbabwean Constitutional Lawyer based at the University of KwaZulu-Natal, Durban, South Africa

On Wednesday 23 August, Zimbabweans will be flocking to various polling stations across the country to exercise their right to vote. This will be the second election without the late strongman Robert Mugabe who was deposed through a coup d’état led by the current leader Emmerson Mnangagwa. Zimbabwe’s democratic progression has been perennially hindered by disputed elections and this has led to general political and economic instability in the country over the years.

Zimbabweans have yet another chance to exercise their democratic right to vote in the upcoming harmonized elections. The main battle is on the presidential ballot pitting two candidates - the incumbent President Emmerson Mnangagwa of ZANU PF and Nelson Chamisa of the Citizens Coalition for Change (CCC).

This election has already been marred by controversy and one Presidential Candidate, Douglas Mwonzora of the Movement for Democratic Change has since withdrawn from the race citing electoral irregularities. In all this controversy, the judiciary has not remained unaffected. The most prominent feature of the current pre-election period is the lack of judicial independence and substantial electoral irregularities. These have already cast a shadow of doubt on the prospect for free, fair and credible elections. For instance, the judiciary has been tasked with adjudicating some election-related disputes and some bizarre decisions have been made. The irregularities and the controversial decisions of the courts have tainted this election and it is falling short of a free and fair plebiscite in terms of regional and international standards. Others have indicated that the courts have already demonstrated outright bias, and there is now pessimism around their impartiality should the election outcome be disputed.

A partisan judiciary

When the President proclaimed the election dates, the Nomination Court sat and accepted candidates’ nominations to participate in the election as required by the law. One of the Candidates who successfully filed their nomination papers, surprisingly, was Saviour Kasukuwere- an exiled former ZANU PF Minister of Youths. Kasukuwere’s entrance into the race was met with much disdain by the ruling party and its surrogates. The reason was that Kasukuwere would effectively divide ZANU PF votes - he leads a de facto ZANU PF faction. One ZANU PF surrogate then made an application to the High Court challenging the validity of Kasukuwere’s nomination on the grounds that Kasukuwere had been absent from the Republic for a period of more than 18 months therefore he is not a registered voter. According to Kasukuwere’s lawyers, this application was flawed in many respects. Firstly, it was an appeal which was disguised as an application. The contention was that the Nomination Court is a court with the same status as the High Court therefore its decision can only be either reviewed or appealed against. No new application to the High Court can invalidate the decision of the Nomination Court. Secondly, it was averred that a factual search of Kasukuwere’s name in the voter’s roll shows that he is a registered voter, there is no such thing as de jure expungement from the voters roll. Constitutional issues were also raised in that a strict construction of the 18 months rule will result in disenfranchisement of millions of Zimbabweans in the diaspora. The court ruled in favor of the Applicant and Kasukuwere was effectively barred from contesting the election. The matter went as far as the Supreme Court and the Supreme Court upheld the decision of the High Court.

Interestingly, while the Kasukuwere’s matter was still before the Supreme Court, Mwonzora of the MDC withdrew his candidature citing a number of irregularities and an unfair playing field. At that time, the Zimbabwe Electoral Commission was not supposed to have commenced printing ballot papers because the nomination issues were still before the courts. It however, turned out that the ballot paper (as seen on the Postal Voting ballot) included Mwonzora, but did not include Kasukuwere. This is a huge cause for concern in that the ZEC knew the outcome of the Kasukuwere matter before it was heard and by the time Mwonzora withdrew from the election, they had already printed ballot papers with Mwonzora but not Kasukuwere.

Kasukuwere has subsequently made several attempts to seek audience with the Constitutional Court, including for application for leave to appeal. The Constitutional Court has now resorted to giving Chief Justice’s directions without having audience with the parties. One such direction declined Kasukuwere’s leave to appeal for the reason that the election of the 23rd of August is imminent and the courts cannot determine the appeal on an urgent basis. These decisions seem to favor the position of the incumbent who will be directly affected by Kasukuwere’s presence on the ballot.

The electoral irregularities

The impending election has been described by several commentators as a farce. The election is marred by several irregularities and illegalities. There has not been transparency on the final voters roll to be used on the election day, there has not been disclosure of pertinent information such as who printed the ballot papers, when and how many. All this is information that the Constitution dictates that it be disclosed. However, it seems that the Zimbabwe Electoral Commission has already presided over the printing of the ballot without disclosing such information. MDC President, Douglas Mwonzora, while explaining his rationale for withdrawing from the presidential race said “Participating in this election is an act of foolish bravery.” He added that the playing field is not even, and there is outright bias from state institutions such as the police- applying the law selectively.

The spectre of a partisan judiciary and a biased electoral management body casts a long shadow over the democratic process in Zimbabwe. The potential repercussions are dire. The very foundations of a free, fair and credible election in Zimbabwe are threatened. These concerns are further amplified by the shear arrogance that these bodies have demonstrated in the past few days. The upcoming elections stand as a pivotal moment, one where the nation's commitment to a just and equitable democracy is truly tested.

Cite as: Thembo, S. (2023)  A partisan judiciary and a biased election management body taint Zimbabwe’s upcoming elections. Available at: https://ancl-radc.org.za/blog/a-partisan-judiciary-and-a-biased-election-management-body-taint-zimbabwes-upcoming-elections (Accessed: [date] [month] [year])

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