Human Rights and Zimbabwe

Zimbabwe’s State President has extensive law-making powers, under two separate statutes. Both preceded the executive presidency created in 1987. They appeared relatively innocuous while we had a titular head of state, but might have raised questions had they been seen deliberately to have given an executive president law-making powers. The constitutionality of both has recently been challenged.

Under the Presidential Powers (Temporary Measures) Act, enacted in 1986, s/he can make ‘regulations’ for ‘urgent’ matters ‘such … as he considers will deal with the situation’ (s 2(1)). These regulations ‘may provide for any matter or thing for which Parliament can make provision in an Act’, except the withdrawal of monies or condonation of over-expenditure from the Consolidated Revenue Fund, and meddling with the Constitution or issues which it requires be provided for ‘by, rather than in terms of, an Act’ (s 2(2)). Such regulations may be published without prior notice of intention, but must be laid before Parliament within eight days of its next sitting after their publication. This Act was not used during the March 2002 Presidential Election.

In 1985, s 158 (‘Regulatory Powers of the President’) had been inserted into the Electoral Act, and this provision was used extensively during this election, as it had also been used during and after the June 2000 Parliamentary elections.

(1) Notwithstanding any other provision of this Act but subject to subsection (2), the President may make such statutory instruments as he considers necessary or desirable to ensure that any election is properly and efficiently conducted and to deal with any matter or situation connected with, arising out of or resulting from the election.

(a) suspending or amending any provision of this Act or any other law in so far as it applies to any election;

(b) altering any period specified in this Act within which anything connected with, arising out of or resulting from any election must be done;

(c) validating anything done in connection with, arising out of or resulting from any election in contravention of any provision of this Act or any other law;

(d) empowering any person to make orders or give directions in relation to any matter connected with, arising out of or resulting from any election;

(e) penalties for contraventions of any such statutory instrument, not exceeding the maximum penalty referred to in section 155.

Among many other pleas, Morgan Tsvangirai asked the High Court to invalidate section 158 of the Electoral Act as ultra vires the Constitution (as a delegation of law-making functions from Parliament to the State President). On 25 January 2002, Justice Makarau declined to ‘express an opinion’, accepting the respondents’ argument that ‘the court cannot exercise its jurisdiction over the speculative assumptions of the applicant that the powers might be used’ against him.[1]

On three occasions subsequently (5, 8 and 11 March 2002), Robert Mugabe used his powers under this section twice to reinstate regulations distinctly detrimental to his main opponent in the Presidential Election, including legislative provision which less than a week earlier had been voided by the Supreme Court.[2] As these Statutory Instruments were being issued, the Supreme Court itself reserved judgment on Tsvangirai’s appeal against Justice Makarau’s non-decision.

Electoral Law

(a) The General Laws Amendment Act (No 2 of 2002) (GLAA)

The GLAA, first gazetted on 24 September 2001, was subjected to a number of unusual procedures in its passage through Parliament. After its second reading, a swathe of amendments to the Electoral Act were tacked onto it, described by the opposition as ‘undemocratic and contrary to the SADC Parliamentary Forum Norms and Standards for Elections in the SADC Region’.[3] These amendments briefly became part of Zimbabwe’s electoral law between 4 and 27 February 2002.

Patrick Chinamasa[4] described the policy intent of these proposed amendments to the Electoral Act – ‘to kick out from our politics the influence of foreign money and foreign interests’[5] and to limit severely the input of private organisations to ‘voter education’, reserving this as the preserve of the Electoral Supervisory Commission appointed by the State President. MDC MPs saw in it different policy intentions: to increase the difficulties of registering as a voter (particularly for the poor, homeless, and women) and thus to disenfranchise those likely to vote against the ruling party.

These proposed amendments to the Electoral Act were not gazetted. They were simply printed on the Parliamentary Order Paper for that day,[6] to which the Deputy Speaker drew parliamentarians’ attention. David Coltart noted that such illegalities ‘can be set aside in a court of law’.[7]

These amendments were not referred to the Parliamentary Legal Committee or the Justice Portfolio Committee. Opposition MPs objected to these infringements of s 20 of the Constitution of Zimbabwe and Parliament’s own rules and traditions in the government’s failure to inform the public – as well as parliamentarians – of laws being planned. Even the chair of the Electoral Supervisory Commission (ESC) reportedly complained about not being given ‘an adequate opportunity to make representations regarding these amendments’.[8]

As opposition MPs indicated, the appointment of the ESC ‘by one of the interested parties without the participation of other stakeholders’, together with the whole of s 158 which empowers the President to amend the Electoral Act and make electoral regulations, gave one candidate in the Presidential Election the capacity – as an unfair advantage – to determine the rules of engagement in this election.

‘In this election, the President is a player and as a result he should not have any role whatsoever to regulate anything to do with elections’.[9]

They similarly – and this time successfully – objected to giving the Registrar-General the capacity to select the election monitors who would be tasked with scrutinising the performance of his own Office.

They also condemned what they claimed to be the illegal and unconstitutional approach of government in putting ‘obstructions in the way of people seeking to register and exercise their vote’.

‘Whether they are street kids without a permanent address or whether they are the sons and daughters of millionaires, they are entitled as of right to vote in the Presidential election once they attain the age of 18 years and are citizens. They are entitled to be registered on the common roll without any need to provide proof of residence’.[10]

And perhaps above all else, MDC MPs objected to what became s34(1)(a) of the GLAA:

(1) In addition to other powers of alteration conferred by this Part, a voters roll may be altered –

(a) by the Registrar-General at any time to correct any error or omission or to change (whether on the oral or written application of a voter or not) the original name or address of the voter to an altered name or address’.

This provision permitted the Registrar-General to change (not ‘correct’) any voter’s registration without even informing the voter that it had been done. It facilitated rigging the roll by altering voters’ personal identity particulars, moving voters between constituencies without their knowledge, or even throwing them off the roll altogether. It briefly became part of Zimbabwe’s electoral law, even though the chair of the ESC[11] objected to notifying the public of such changes only through the Government Gazette, which most people do not read. Despite being voided, it was re-presented to Parliament in the Electoral Amendment Bill.

On 8 January 2002, the General Laws Amendment Act (GLAA) was defeated on its third reading in Parliament by 36 MDC legislators when only 22 ZANU-PF members were present. Two days later, ZANU-PF successfully moved a motion to rescind this vote and the Speaker suspended Standing Orders to allow the Leader of the House (Patrick Chinamasa) to re-present the bill at its third reading to a ZANU-PF-dominated House. It was then passed by 62 to 47.[12] We are not aware of any precedent for such action, reportedly described by the MDC’s House leader, Gibson Sibanda, as ‘a blatant contravention of the Constitution’ and unlawfully contravening standard Commonwealth practice that prohibits a defeated bill from being reintroduced in the same Parliamentary session.[13] Its legality was questioned in various news reports, despite information minister Jonathan Moyo’s claim that Chinamasa had acted in accordance with Parliament’s Standing Rules and Procedures.[14]

The GLAA became operational on 4 February 2002. However, the MDC challenged the legality of its passage through Parliament. On 27 February 2002, the Supreme Court nullified the General Laws Amendment Act, on the grounds of the illegal rescinding of the third reading vote which had defeated it in Parliament on 8 January 2002, and its illegal re-presentation for another third reading two days later.[15] Only Justice Malaba dissented, but even he reportedly regarded as ‘moot’ whether ‘what the minister did was lawful or not’.[16]

This voiding of the GLAA meant that the accreditation of observer and monitors, together with voter education, was no longer under the control of the Electoral Supervisory Commission; that – had this decision been made more timeously than on the closing day for application – Zimbabweans resident abroad could have applied for postal votes; that had the roll not ostensibly been closed (while in fact registration was ongoing unknown to all but ZANU-PF), people without proof of address could have registered as voters. Most importantly, it meant that the ballot boxes could be sealed on the seams, and monitors and polling agents could accompany the boxes on the same vehicles (which had in fact been approved earlier, on 22 February 2002, in SI 34/2002,[17] under pressure from international observers).

Robert Mugabe used his authority under s 158 of the Electoral Act to re-enact key provisions of the legislation defeated by the opposition and later struck down by the Supreme Court, and to validate all actions taken while the GLAA was in force.[18]

Anything which has been done before the date of commencement of this notice in the purported exercise of any of the provisions of the Act as amended by the General Laws Amendment Act, 2002 (No. 2 of 2002), and which would have been lawfully done if the General Laws Amendment Act, 2002, had been validly enacted on the 4th February, 2002, shall be deemed to have been lawfully done.

However, under s 158(2)(c) of the Electoral Act, the State President does not appear to have the authority to validate actions taken under an unlawful statute which has been struck down. So the Electoral Amendment Bill also sought retrospective application, to 4 February 2002.

After the Supreme Court nullified the GLAA on 27 February 2002, Chinamasa intended ‘to make specific regulations under the Electoral Act providing for certain [unspecified] matters … of an essentially administrative nature designed to deal with certain procedural steps and requirements’ already taken that had been reversed by the court’s ruling.[19] Using s 158 of the Electoral Act, Robert Mugabe reinstated the rescinded GLAA provisions regarding postal voting, the supplementary role, and the ‘white list’ of ‘disqualified’ voters, as detailed later. Patrick Chinamasa used his ministerial authority to reinstate others as electoral regulations concerning polling agents, monitors, observers and journalists (in SIs 41F, 42A and 42C).

(b) Electoral Amendment Bill (No 4 of 2002)

The Sunday Mail wrongly headlined ‘Electoral Act comes into effect’ in respect of the Electoral Amendment Bill gazetted on 1 March 2002. Section 15 of this Bill did indeed seek retrospective application, to the date on which the GLAA had become effective (4 February 2002), but Parliament had been recessed until after the election.

A series of Statutory Instruments (8A, 17A, 34, 35, 41B, 41F, 42A, 42C) amended the Electoral Regulations of 1992 (SI 28/1992) ahead of the poll.[20] The voters roll was ‘closed’ three times before polling – on 10 January, 27 January and 3 March 2002.[21] Reports from Manicaland stated a thousand new voters had been registered in Mutare after the roll had been closed.[22] However, the total number of voters registered between 27 January and 3 March 2002 was not made public.

Disenfranchisement by law

(a) Permanent residents who had become citizens

(1) Subject to the provisions of this paragraph and to such residence qualifications as may be prescribed in the Electoral Law for inclusion on the electoral roll of a particular constituency, any person who has attained the age of eighteen years and who –

(b) since the 31st of December, 1985, has been regarded by virtue of a written law as permanently resident in Zimbabwe;

Over 5 000 permanent residents (including former prime minister Garfield Todd), who had failed formally to renounce their foreign citizenship to the state concerned within six months of the Citizenship of Zimbabwe Amendment Act becoming law on 6 July 2001, or had renounced their Zimbabwean citizenship,[24] received letters dated on or after 25 January 2002 from their constituency registrars, stating:

‘You are hereby notified that I have reason to believe –
(a) that you are not entitled to be registered as a voter in_________________ constituency
(b) that you are not qualified for registration as a voter in _________________ constituency
on the grounds that you have in terms of Schedule 3 section 3(3) of the Constitution of Zimbabwe ceased to be a citizen of Zimbabwe and that, unless you give notice of appeal on the form annexed hereto before the expiration of seven (7) days from the date of this notice, or unless on representations made by you, I withdraw this objection -
(a) your claim to be registered as a voter will be rejected;
(b) your name will be struck off the roll.
If you give due notice of appeal, the matter will be set down for hearing before a magistrate of the province in which you reside and the day and place appointed for such hearing will be notified to you in due course.
Dated this _____ day of ___________ 2002. Constituency Registrar'

These notices were presumably sent under the provisions of Part VII of the Electoral Act:

(b) a claimant is not entitled to be registered on the voters roll on which he has claimed to be registered; or

he shall send to the claimant or voter, as the case may be, written notice of objection to which a form of notice of appeal shall be annexed:

Provided that no such objection shall be taken or notice sent during the period between the issue of a proclamation referred to in section 38 or 39 and the close of polling at the election to which such proclamation relates.’

Sections 38 and 39 do not refer specifically to Presidential, only to Parliamentary general and by-elections and vacancies. However, under Part XIX of the Electoral Act, ‘Provisions Relating to Elections to Office of President’, no specific provisions alter the earlier provisions for registration on the voters roll. The only specific provision relates to the date of closure of the roll for the Presidential election, which s 94(1)(c) allows ‘may be on or after the date of publication of the notice [fixing the polling date(s)] or not more than 31 days before that date’. Therefore, the earlier provisions regarding voter registration and what may be altered on the voters roll also apply to Presidential elections.

Many, perhaps most of the letters sent by the constituency registrars were received after the 7-day appeal deadline had expired. Moreover, the Presidential election and closure of the voters roll had been proclaimed on 10 January 2002.[25] The General Laws Amendment Act (No 2 of 2002), s 3(h), repealed s 34 of the Electoral Act (Chapter 2:01) and replaced it with the following:

(1) In addition to other powers of alteration conferred by this Part, a voters roll may be altered – …

(b) by the constituency registrar at any time by correcting any obvious mistake or omission, or by changing, on the written application of a voter, the original name or address or the voter to an altered name or address;

(c) by the constituency registrar at any time except during the period between the issue of a proclamation referred to in section 38 or 39 and the close of polling at the election fixed by any such proclamation, by striking out the name of any person, on proof that he has become qualified for and has secured registration on another voters roll.

(2) In the case of an alteration in terms of paragraph … (b) of sub-section (1), a notice of the fact shall be published in the Gazette by the Registrar-general or constituency registrar, as the case may be.’

The new s 34(1)(c) of the amended Electoral Act made it quite clear that the disenfranchisement of permanent residents by the constituency registrars during the period between the proclamation of the Presidential Election on 10 January 2002 and the end of polling on 10 March 2002, was ultra vires. And had it been done under s 34(1)(a) by the Registrar-General during that period, he would have had to publish in the Gazette – but without any time-frame – a list of all those voters struck off the roll. The Supreme Court later nullified all of the amendments to the Electoral Act contained in the General Laws Amendment Act. But the State President purported to validate these actions, in an action that seems, itself, to have gone beyond his legal authority.

The letter referred to hearing in a Magistrate’s Court upon receipt of any objection. Section 25(3)(b)(ii) of the Electoral Act requires that, when notice of appeal is given by a voter struck off the register, ‘the designated magistrate shall appoint a day and place for the hearing, the day so appointed being not more than 30 days after the date of receipt of the notice of appeal’.

Clearly, the magistracy did not have the necessary staff to hear at least 3 000 cases[26] within 30 days, before the Presidential Election. Therefore an urgent class action was launched against the Registrar-General in the High Court, not least because Justice Makarau had earlier ruled that permanent residents had the right to vote and that the names of any voters which had been removed by 18 January 2002 must be restored to the roll before polling. This case was not decided before polling.

A week before polling, even the state-controlled media still did not know whether the Supreme Court had decided

‘on the fate of thousands of people who were affected by the amendment to the Citizenship Act that abolished dual citizenship… If the [Supreme] court has not decided to the contrary, holders of dual citizenship, who have not yet renounced the second, can now vote in the … Presidential Election’.[27]

The reason why the Supreme Court’s decision was awaited was that the Registrar-General had appealed against the High Court order of Justice Adam on 27 February 2002[28] that the Registrar-General

‘shall, within seven days of this order, in terms of section 19(2) of the Citizenship of Zimbabwe Act (Chapter 4:01) extend the period [for renouncing foreign citizenship]… from 6 January 2002 to 6 August 2002’.

In a 52-page judgment clearly aiming to be both comprehensive and definitive, Justice Adam had reviewed complicated facts as well as domestic and international law pertaining to citizenship and residence. From that review, he had also decided that born Zimbabweans of foreign parentage, like Zimbabweans born elsewhere, had to renounce foreign citizenship only if they actually held it, but not if they had never activated a potential entitlement to it or had earlier renounced it; and that

‘a person that was a citizen of Zimbabwe on 31 December 1985 who has ceased to be a citizen of Zimbabwe … is since 31 December 1985 regarded as permanently resident in Zimbabwe and shall be qualified for registration as a voter on the common roll in terms of paragraph 3(1) of Schedule 3 of the Constitution’’

According to Justice Hlatshwayo,[29] on a unspecified date the Supreme Court, in a judgment not publicly available,[30] apparently overturned Justice Adam’s findings in holding that ‘A citizen loses his or her right to vote upon ceasing to be a citizen … in terms of sub-paragraph 1(b) of Section 3’ (of what, was not specified, but presumably Schedule 3 of the Constitution). ‘Where the loss of citizenship is common cause, the consequent loss of the right to vote is by operation of the law’, thus rendering ‘superfluous’ the fact that the legalities of notification of objection by the constituency registrars had not been complied with in depriving former citizens of their votes.

It was reportd that at least 1 500 cases were referred by magistrates’ courts to the Bulawayo High Court and another 700 to the High Court in Harare.[31] In Harare, all were given to recently-appointed Justice Hlatshwayo[32] to determine. He was perceived by the lawyers acting for the appellants as distinctly unsympathetic. And despite the original statutory provision (overturned by the Supreme Court when it nullified the General Laws Amendment Act) for individual hearings in Chambers, Justice Hlatshwayo required that all cases be classified into one of three categories: immigrants who had become permanent residents before taking out citizenship and who had not renounced their foreign citizenship(s) as required;[33] those born in Zimbabwe with parents of foreign descent who had been permanently resident since 31 December 1985 or earlier; and those who had never activated their potential claims to foreign citizenship. On 7 March 2002, two days before polling started, these categories were then determined, in a form of involuntary class action (quite contrary to the provisions of the Class Actions Act), in order to ensure that no appellants were allowed to vote simply because their legal hearings were still pending. In terms of this judgment, he vote was denied to the first two categories, but those in the third category were allowed to vote.

In contrast, and in compliance with the presidential directive contained in SI 41D, s 6(4)), Bulawayo High Court judge George Chiweshe reportedly ruled in some 1 500 cases that those removed from the roll had to produce documentary proof to the Registrar-General that they were still Zimbabwean citizens before they would be allowed to vote.[34] In fact, as voters calling SW Radio Africa complained, Bulawayo presiding officers refused to accept such documentation even when it was provided.

The Supreme Court, in a 4-1 ruling in which Justice Sandura was the only dissenting voice, had earlier reportedly held that permanent residence was legally suspended during any period of citizenship. (The judgment itself was not, at the time of writing, available.) As a result of this particular ruling, and contrary to legal and popular understandings of the Constitutional and statutory positions, after 1986 citizens who became permanent residents lost their votes, whereas those permanent residents who by then had not become citizens, retained their votes.

It was, at that stage, still unclear whether names had already been removed (illegally) from the voters’ roll. Government said it would provide for a supplementary voters roll in each constituency listing those who had been affected by the Citizenship Amendment Act. Two days before the High Court hearings on the legality of disqualification, on 5 March 2002, Robert Mugabe used s 158 of the Electoral Act to disqualify from voting all those who were deprived of or renounced their Zimbabwean citizenship but who had been permanent residents since before taking out citizenship.[35] Many were white Zimbabweans whom he had repeatedly vilified in public and clearly did not expect to vote for him.

6. (1) Notwithstanding any provision of the Act but subject to this section, the Registrar-General is empowered to prepare a list of persons to whom the Registrar-General or any constituency registrar has sent notices of objection in terms of section 25 of the Act on the grounds that such persons became disqualified to vote by reason of—

(a) renouncing their citizenship of Zimbabwe pursuant to the Citizenship of Zimbabwe Amendment Act, 2001 (No. 12 of 2001); or

(b) losing their citizenship of Zimbabwe by operations of the Citizenship of Zimbabwe Amendment Act, 2001 (No. 12 of 2001); or [sic]

(2) Every presiding officer shall keep at each polling station a list of persons referred to in subsection (1).

(3) Subject to subsection (4), any person whose name appears on the list referred to in subsection (1) shall not be entitled to vote at the election, notwithstanding that his name appears on the roll for any constituency.

(4) If any person whose name appears in the list referred to in subsection (1) can prove to a presiding officer that—

the voter shall be entitled to be handed a ballot paper and the presiding officer shall delete his name from the list.

This last concession was re-amended three days later (on the day before polling, 8 March 2002, in SI 42B, and apparently without reference to the High Court decisions taken by justices Hlatshwayo in Harare and Chiweshe in Bulawayo), as follows:

(4) If any person whose name appears in the list referred to in subsection (1) can prove to a presiding officer that—

(b) his appeal was successful or, if it is still pending on the first polling day, he has not become disqualified to vote on either of the grounds referred to in subsection (1);

the voter shall be entitled to be handed a ballot paper and the presiding officer shall delete his name from the list.

In practice, however, not all polling stations had copies of the ‘white-list’. After the election, the Registrar-General’s Office sent letters of apology (dated 1 March 2002 but posted after the election) to some of the Bulawayo whites prevented from voting.[36]

(b) Expatriate Zimbabweans

Robert Mugabe also used his presidential authority under s 158 of the Electoral Act directly to disenfranchise another category of voters – ‘refugees’ from Zimbabwe’s collapsing economy and political turmoil – whom he also had good reason to suspect would not vote for him. In s 4 of the Electoral Act (Modification) Notice, 2002,[37] he disenfranchised all potential postal voters save those in the uniformed and overseas state services and their spouses (as well as former dual citizens in s 6). He also confirmed the withdrawal from constituency registrars of the responsibility for issuing postal ballots and its vesting in the Register-General.

4. (1) Notwithstanding Part XV of the Act, no voter shall be entitled to receive a postal ballot paper unless his absence from his constituency or inability to attend a polling station, as the case may be, is or will be occasioned by—

(a) duty as a member of a disciplined force or as a constituency registrar, presiding officer, polling officer or counting officer; or

(a) all applications for postal ballot papers shall be made to the Registrar-General;

(b) applications for postal ballot papers by members of a disciplined force may be made to the Registrar-General through their commanding officers;

(c) applications for postal ballot papers shall be delivered so as to reach the Registrar-General not later than such date as the Registrar-General may specify by notice in the Gazette, either in relation to applications generally or any class thereof;

(d) the Registrar-General shall exercise all the functions of a constituency registrar in terms of the Act and any regulations made thereunder in respect of—

(i) applications for postal ballot papers delivered to him in terms of this section; and

(3) Notwithstanding subsection (2) of section 66 of the Act, a constituency registrar may seal the postal ballot box at any time before the commencement of polling on the polling day or the first polling day, as the case may be, in the constituency concerned, and shall give not less than 24 hours’ notice to candidates or their election agents of the time and place at which he will seal the postal ballot box.

(4) Notwithstanding subsection (4) of section 66 of the Act, where a constituency registrar receives covering envelopes before he has sealed the postal ballot box, he shall retain them in safe custody until he has sealed the postal ballot box and shall then place them unopened therein.

(5) Save as modified by this section, Part XV of that Act, in particular the provisions thereof relating to the completion of postal ballot papers, the posting or delivery of completed postal ballot papers to constituency registrars and the custody of postal ballot papers, shall apply, mutatis mutandis, in respect of voting by post in the elections.

‘… postal voting … has always been problematic. The opposition are on record condemning it in the past because it is so full of loopholes as to be open to manipulation. You cannot kill the perception arising from postal voting and to that extent, we have limited because I do not think we can do it and conduct in a manner that will satisfy all the stakeholders… It is more than a question of money but of logistics. We have never been able to put our act together … we are going to conduct our elections in the same way as we conducted the last elections’.

On 6 February, the Registrar-General advertised only in the state-controlled press that the processing of applications for a postal ballot ‘in respect of qualified persons as specified in Section 34 of the General Laws Amendment Act’[39] would commence ‘on or about 7th February, 2002 … from 7am to 5 pm daily, until 10th March, 2002’.[40] In other words, he was prepared to process such applications for 31 days, up to the time polls closed in the election itself. However, on 27 February 2002 (on the same day that the Supreme Court voided the GLAA), in accordance with (now-nullified) s 61(ii) as amended of the Electoral Act, he gave notice – again only in the state-controlled press – that he would stop receiving applications for postal ballots at noon on that day.

It was unclear until 5 March 2002[41] whether civil servants (widely believed to be mainly MDC supporters) would be able to vote by post, along with 22 000 police and perhaps 30 000 soldiers. The civil servants were seconded to the Registrar-General’s Office as polling officials or to the ESC as monitors, and the police and army were deployed to all polling stations.[42]

The Daily News[43] claimed at least 10 uniformed personnel had contacted them to report that they had already been forced to complete postal ballots in front of their commanding officers. Another asked:

‘We have been advised that we will vote in the presence of our officer-in-charge. He is a war veteran and it will be suicidal to vote against ZANU-PF. Can you, please, expose this because we want to exercise our vote secretly without undue influence.’

The MDC noted many more reports of uniformed personnel being forced to vote in front of commanding officers who were war veterans. The party estimated that some 70 000 votes had been cast ahead of the deployment of army and police to polling venues. However, the Daily News’ estimates of 40-45 000 in the army and 35-40 000 in the police seemed high. Prior estimates have set the ZNA employment figure at 35 000 and the ZRP at 22 000, plus 10 000 reservists. Perhaps the MDC’s figure included some of the 80 000 civil servants reputedly recruited to staff the polling stations – although no provision for their postal votes had been reported up to that time.

There had apparently been no monitoring, much less observation, of the postal voting procedures.[44] No official was reported as saying that those exercising postal ballots had had their fingers inked. Registrar-General Tobaiwa Mudede admitted it was possible that those who had exercised postal ballots might also vote if posted to their constituencies, but refused to give the number of those who had cast postal votes.[45] Police were recorded voting in Makoni North, while in Nyanga only 19 of 193 postal votes had the official stamp on the declaration forms, but all were counted, according to the MDC’s polling agents. In the results, the only reference to postal ballots came from the ESC figures for 1 053 received in Mashonaland West.

Expatriate Zimbabweans in London set up their own mock polling station outside the Zimbabwean High Commission to protest against their disenfranchisement.[46]

Other court decisions affecting the electoral process

In Zimbabwe’s Presidential Elections, the outcome is decided on a national vote count. The winner is s/he who gains most votes, irrespective of where they are cast. Even though the voters roll had for many years been described as ‘shambolic’, it had been announced in 2001 that the 2002 Presidential Election would be held on a constituency basis. That is, all citizens would have to get back to their registered constituencies in order to vote. This requirement was widely seen as a form of electoral manipulation, even though the Electoral Supervisory Commission advertised that ‘it is virtually impossible to rig elections in Zimbabwe’. Ambitiously, it would have affected the voting rights of perhaps two million internally-displaced farmworkers and their dependants, teachers chased out of their schools for supporting the opposition, and an estimated one million expatriate Zimbabweans.

The MDC’s president, Morgan Tsvangirai, therefore appealed to the High Court to allow a free vote in any constituency by any registered voter with confirmed identification. On 25 January 2002, in a judgment that obviously covered everyone entitled to postal votes as well, Justice Rita Makarau[47] ordered that the election be held on a non-constituency common roll, and that Mudede

‘shall make adequate and reasonable administrative arrangements for all voters registered on the common roll who will not be in their constituencies on the polling days, to exercise their vote’.[48]

The government appealed urgently against Justice Makarau’s ruling on the grounds of impracticability. It would take, Patrick Chinamasa was quoted as saying, 976 days to produce the 53 billion lines of printout required for one copy of the six million names on the voters roll for each of 5 400 polling stations.[49]

On 28 February 2002 the Supreme Court upheld 4-1 the State’s appeal against Justice Makarau’s ruling.[50] Justice Sandura dissented from the judgment of his four recently-appointed colleagues, Chief Justice Chidyausiku and Justices Cheda, Malaba and Ziyambi.

Justice Makarau had also ordered the Registrar-General to restore to this common roll all the names of those who, having lost their Zimbabwean citizenship under the Citizenship Amendment Act of 2001, remained permanent residents of Zimbabwe and therefore retained their constitutional right to vote but by 18 January 2002 had been removed from the voters roll. The Supreme Court heard the State’s appeal against this judgment on 15 February 2002 and reserved its decision, apparently indefinitely. It similarly reserved until after the election the MDC’s appeal against the use of the supplementary voters roll, compiled while the register was legally supposed to be closed, and eventually decided 4-1 (Justice Sandura dissenting) that Morgan Tsvangirai lacked locus standi to bring this complaint, thus avoiding the substantive complaint.[51]

Justice Adam ordered Registrar-General Tobaiwa Mudede to provide the MDC with a copy of the voters roll and interdicted him from removing any more names from the roll before complying with sections 25, 30, 31 and 32 of the Electoral Act.[52] An electronic copy of the common roll as at 2 January 2002 was provided to the MDC, some discs being blank. The party had to go back to court to obtain a copy of the final roll used in the election. In another reserved decision, the Supreme Court deprived the MDC of an updated copy of the voters roll before the poll started, after which the Registrar-General resisted providing an updated electronic copy.[53]

[1] HH 22-2002 (in the cases HC 11843/01 and 12015/01).

[2] SIs 41D, 42B and 42E of 2002.

[3] Parliamentary Debates 28,40:3812 (10 January 2002).

[4] ‘The General Laws Amendment Act 2002 had amended a total of some 45 Acts of Parliament … [including] the Criminal Procedure and Evidence Act … [which] had only one amendment: this was intended to put a halt to the contempt of court proceedings brought by the High Court, at its own instigation, against Patrick Chinamasa for his public utterances about a Judge when he was Attorney-General.’ (Commentary, MDC -v- Minister for Justice, Legal and Parliamentary Affairs and Attorney-General, R.G. 28/2/2002.)

[5] Parliamentary Debates 28,35:3140 (18 December 2001).

[6] Starting on page 403 (Parliamentary Debates 28,35:3135).

[7] Parliamentary Debates 28,39:3558 (9 January 2002).

[8] Parliamentary Debates 28,35:3151 (18 December 2001).

[9] Parliamentary Debates 28,36:3349 (19 December 2001).

[10] Parliamentary Debates 28,35:3152, 3159 (18 December 2001).

[11] Parliamentary Debates 28,35:3152, 3161 (18 December 2001).

[12] DN 11.1.02; ZI 8.2.02.

[13] DN 11.1.02.

[14] H 11.1.02.

[15] FG 28.2.02. In a re-run of the firing of Chief Justice Anthony Gubbay a year earlier, Justice Ebrahim, who chaired this Bench decision, immediately took leave pending retirement, without giving reasons (H 2.3.02).

[16] H 2.3.02.

[17] But this particular SI, although dated 22 February, did not appear to have been released until 1 March 2002.

[18] SI 41D/2002, 5 March 2002.

[19] H 28.2.02.

[20] A similar raft of SIs had preceded the June 2000 poll, including 141A, 158A, 161A, 161B, 177A, 177B and 180A.

[21] SIs 3A, 14B and 41A of 2002.

[22] DN 26.2.02.

[23] Introduced in 1991 as part of Constitutional Amendment No. 11.

[24] Parliamentary Debates 28,44:3940 (23 January 2002).

[25] ‘4. Voters rolls shall be regarded as closed with effect from 10th January 2002 for the purpose of accepting the registration of voters who may vote at the election of a President’ (SI 3A/2002).

[26] H 16.2.02.

[27] H 1.3.02.

[28] HH 29-2002 (concerning case HC 12092/01).

[29] HC 2434/2002, judgment 7 March 2002.

[30] As yet, subscribers have been unable to acquire copies of any Supreme Court judgment made in 2002.

[31] DN 9.3.02.

[32] Following his pro-government role on the 1999-2000 Constitutional Commission, in 2001 the State President had appointed Ben Hlatshwayo from his lecturing post at the University of Zimbabwe to the High Court Bench.

[33] DN 7.3.02.

[34] H 9.3.02. This requirement was again changed, by presidential action, on the day before polling (SI 42B/2002).

[35] SI 41D/2002, 5 March 2002.

[36] DN 11.4.02.

[37] SI 41D/2002 (5 March 2002).

[38] Parliamentary Debates 28,33:2939, 2955, 2943 (5 December 2001).

[39] Actually s 34 of the Electoral Act!

[40] H 6.2.02.

[41] SI 41D/2002.

[42] ZI 1.3.02.

[43] DN 5, 8.3.02.

[44] FG 7.3.02.

[45] DN 8.3.02.

[46] DN 11.3.02.

[47] She had, two weeks earlier, found the Registrar-General to be in contempt of court when, contrary to a court order by Justice Hungwe, he closed voter registration before this MDC application had been heard (DN 29.1.02).

[48] HH 22-2002.

[49] H 29.1.02. Quite apart from any other consideration, his arithmetic appears to be faulty: 5 400 x 6 000 000 is, according to one calculator, 32 400 000 000, or 32,4 billion. His figures suggested a printing capacity of 54,3 million lines per day which was remarkably small and raised questions as to which organisation(s) would print the roll – most likely ZANU-PF’s cash-strapped and paper-short Jongwe Printing and Publishing, which had singularly failed timeously to produce purchasable copies of the Parliamentary Debates for the previous half-year.

[50] H 1.3.02.

[51] ZI 12.4.02.

[52] DN 14.1.02.

[53] DN 16.4.02.

Chapter 4: Undermining Political Rights: Altering the Politico-Legal Playing Field