Human Rights and Zimbabwe's Presidential Election: March 2002
A Special Report by the Research Unit
May, 2002

Chapter 5: Presidential, Mayoral and Municipal Elections in Harare and Chitungwiza

The courts and Harare’s elections       

Nominations

Treating

Problems

Results

In March 1999, the then executive mayor (Solomon Tawengwa) and the entire Harare City Council were suspended and later relieved of their (elected) offices by the Minister of Local Government and Housing. The reason given was corruption, although no charges were preferred. The Minister appointed an ‘interim administration’ to run the affairs of Zimbabwe’s capital city.

Harare ratepayers were incensed. Firstly, independent as well as ZANU-PF councillors had been fired. Secondly, the term of office of the ‘interim administration’ was recurrently extended, well beyond the six months permitted by the Urban Councils Act. Third, vast and financially-unaffordable increases in the city’s budget were proposed before the June 2000 Parliamentary and again before the Presidential elections, without seeking ratepayer approval. Finally, service delivery deteriorated still further even as massive rates increases were announced.

During 2001, three elections were held for executive mayors of two towns and one city. Bulawayo, Chegutu and Masvingo ratepayers all elected MDC mayors. Ratepayer protest in Harare took two forms, monetary and legal. Financial withholding of rates won High Court endorsement in January 2002. Those withholding their rates paid their backlog after the elections had returned a new city council.

The courts and Harare’s elections

Legal action eventually culminated, on 23 November 2001, in Justice Hungwe’s High Court order for elections on or before 28 December 2001.[1] The State appealed to the Supreme Court, which confirmed on 7 December 2001 that the ‘interim administration’ was indeed illegal, having long outlived its legally-permitted tenure, and upheld Justice Hungwe’s ruling but extended the deadline to 11 February 2002. The State did not comply, even though over the weekend before the judgment was confirmed, justice minister Patrick Chinamasa

‘denied allegations that his ministry was crafting statutory instruments to amend the Urban Councils Act in order to postpone the much-awaited elections under the Presidential Powers Act. “We are doing everything to fulfil the court order.”’[2]

He did, however, refer to while refusing to elaborate, on ‘administrative problems’ in compliance.

On 14 January 2002, in the Supreme Court, Chief Justice Godfrey Chidyausiku, sitting with justices Wilson Sandura and Vernanda Ziyambi, again ordered that municipal and mayoral elections be held on or before 11 February 2002.

The State President then issued, on 23 January 2002, the Electoral Act (Modification) (Postponement of Harare City Council Elections) Notice (SI 13A/2002) in an attempt to vary the Supreme Court decision, using the Registrar-General’s lack of resources as a justification.

‘3.  Notwithstanding any provision of the Urban Councils Act [Chapter 29:15], the Electoral Act [Chapter 2.01] or any other law or order of court to the contrary, the Harare City Council elections shall be held on the 9th and 10th March, 2002.

4.  Notwithstanding anything in the Urban Councils Act [Chapter 29:15], the Electoral Act [Chapter 2:01] or any other law or order of court to the contrary—

(a)  the commissioners appointed for the Harare City Council in terms of section 80 of the Urban Councils Act [Chapter 29:15] shall continue in office and exercise all of the functions of Harare City Council until the last day of the Harare City Council elections;

(b)  all decisions and acts of the commissioners referred to in paragraph (a) made before the date of commencement of this notice, in the exercise or purported exercise of the functions of the Harare City Council, are hereby validated.’

The two-years-overdue municipal and mayoral elections in Harare were thus by presidential fiat linked to the Presidential election.

The Harare Combined Residents’ Association (HCRA) took Robert Mugabe and, repeatedly, the Registrar-General (Tobaiwa Mudede) to court.

High Court judge Moses Chinhengo found for the HCRA, ruling that Statutory Instrument 13A/2002 was invalid. ‘Section 158 of the Electoral Act does not empower the President to issue a notice or a statutory instrument which has the effect of setting aside a court order.’[3] He also found that, in not effecting the earlier Supreme Court order, the Registrar-General was ‘more than just prima facie in contempt’ of that order. He therefore refused to allow any appeal by the State to delay the interim relief he granted (namely to hold the Harare elections as ordered earlier by the Supreme Court on or before 11 February 2002), and permitted the applicants, if necessary, to seek an immediate final order to jail the Registrar-General if he failed to comply with the new High Court order.

The Registrar-General was ordered on 28 January 2002 to give notice of Harare’s elections on or before 31 January, to hold the Nomination Court not later than 4 February, and the elections by 11 February.[4] If he failed to do this, the ratepayers could apply for his immediate imprisonment. He published notification of the Nomination Court (to be held on 4 February) on Friday 1 February 2002.

Justice minister Patrick Chinamasa very publicly expected the Supreme Court to hear the State’s appeal against Justice Chinhengo’s ruling on or before 31 January and then by 4 February (the date of the Nomination Court sitting).[5] The Supreme Court initially refused to hear the State’s urgent appeal, referring it back to the High Court through which the appeal should have been lodged. Justice Chinhengo dismissed this re-submitted appeal for leave to appeal to the Supreme Court as having ‘no prospects of success’.[6]

The Attorney-General’s Office failed to file appeal papers appropriately either on 1 February or – twice – on 4 February. The Chief Justice reportedly tried to accommodate the State in its attempted appeal, by having a full Supreme Court bench available throughout Monday 4 February. But when appropriate procedures were not followed, he struck the appeal off the court register, reprimanding the State’s attorney for inefficiency and treating the Supreme Court (and the judicial process more generally) reportedly ‘like a kangaroo court’.[7]

At issue in this convoluted and poorly-reported appeal was whether Statutory Instrument 13A/2002 was indeed invalid, as ruled by Justice Chinhengo. The State reportedly submitted that

‘it is legally untenable to declare a Statutory Instrument prima facie invalid. Either the Statutory Instrument is valid or invalid.’[8]

If this was indeed the substance of the State’s appeal, it is clear why the appeal was disallowed as having no prospect of success. The executive president clearly considered that he had the right to overturn inconvenient court orders, as he had repeatedly done over the past two years. The state-controlled press reported Mudede’s claim that ‘There is no limit to what the President can make regulations for… He was merely exercising the powers granted to him by Section 158 of the Electoral Act,’ and he had acted in good faith ‘on the basis of that Statutory Instrument which has not been declared illegal’.[9]  Even Mugabe’s own Supreme Court appointees appeared to take exception to the behaviour of public servants which followed from Mudede’s apparent presumption and ignored court protocol.

However, on 6 February 2002, the Supreme Court did eventually hear Mudede’s appeal to be allowed to appeal against what the Attorney-General’s Office alleged to be ‘an incompetent order’ from the Justice Chinhengo in the High Court.[10] It reserved judgment, but only after the Chief Justice had reportedly observed that ‘The President has no powers to run the affairs of the City of Harare but [sic] the conduct of elections’[11] and ‘The President does not have powers to validate the term of the commission running Harare’.[12]

Having initially reserved its judgment, presumably to consider the political consequences of whatever decision it might make, on 8 February 2002, the Supreme Court in a 4-1 decision reversed its own earlier order and equally failed to make a ‘final determination’ as to whether or not SI 13A/2002 breached the Electoral Act. Chief Justice Chidyausiku, with the concurrence of justices Vernanda Ziyambi, Mishek Cheda and Luke Malaba, reportedly argued that Justice Chinhengo had not found whether the SI was valid or not. ‘Until such an adjudication there is a presumption in favour of the validity of the Statutory Instrument’. In other words, his own appointees to the Supreme Court avoided finding Robert Mugabe guilty of breaking the law, even if he had done so, during his election campaign.

The Department of Information and Publicity was promptly reported to be seeking ‘legal opinion on stories published by the Daily News and the Financial Gazette, which alleged that President Mugabe had broken the law in the Harare mayoral poll case’.[13]

In his dissenting minority judgment, however, Justice Ali Ebrahim reportedly agreed with Justice Chinhengo of the High Court and invalidated SI 13A/2002.

‘It is my view … that Section 3 of the Notice is ultra vires the powers conferred on the President in terms of Section 158 of the Electoral Act. The Statutory Instrument goes further than I think would have been intended. It purports to validate all decisions and acts of the Commission whether or not they would have been lawful if taken or done by a lawful Council. It thus purports to grant some sort of general amnesty or blanket pardon for anything decided by the Commission, regardless of incapacity, incompetence or error.’[14]

Following this decision, there was speculation that both judges Chinhengo and Ebrahim would leave the judiciary very shortly.[15] That speculation was enhanced when Justice Ebrahim presided over a five-member Supreme Court bench which found 4-1 that the General Laws Amendment Act had been passed by invalid procedures and nullified it (including the amendments to the Electoral Act which had been tacked onto it at the last moment).

Whether the Attorney-General’s staff were actually responsible for the farce for which they were held responsible by the state-controlled media, remains an open question. It seems quite possible that most if not all of the players involved were taking instructions from a higher level, because on 4 February ‘the government … set February 18 as the date on which the nomination court will sit to register candidates for the Harare and Chitungwiza mayoral and ward elections’.[16] This notification was in fact authorised by the Registrar-General; and The Herald did not emphasise the date set for polling in these municipal elections, set by the State President for 9-10 March 2002.

Nominations

By 8 February 2002, the Minister of Justice was ‘satisfied that the voters rolls for the Harare mayoral and council elections’ were compliant with ‘section 44 of the Local Authorities Election Laws Amendment Act (21/1997).’[17] However, Dr David Samudzimu’s attempt to stand as an independent mayoral candidate was frustrated by finding that 30 of his potential nominators (together with hundreds if not thousands of others) had been removed from the voters roll sometime after 4 January 2002.[18]

On Monday 4 February 2002, the last date specified in Justice Chinhengo’s court order, no-one pitched up from the Registrar-General’s Office to register candidates for the mayoral and council elections who unsuccessfully waited with completed papers to be nominated. The candidates were at Town House to lodge their nominations at 10am and waited until past the revised time of 2.30pm. Clearly, the State had no intention of abiding by repeated court rulings on dates. From the news reports,[19] it was impossible to tell whether Tobaiwa Mudede had accompanied the State’s legal representatives to court, which might explain his (apparently contemptuous) absence from the Nomination Court he personally had gazetted. The HCRA’s David Samudzimu noted that his organisation had no option but to apply to the High Court to find Mudede in contempt of court.

In the meantime, 24 of the dismissed councillors (all belonging to ZANU-PF) applied urgently for enforcement of Justice Adam’s May 2000 High Court order for their reinstatement. This may have been ‘Plan B’ should the president’s legal intervention fail. Their application was heard by Justice Chinhengo on 24 January 2002.[20] He deferred indefinitely his judgment.

Among these applicants was Elias Mudzuri, formerly the HCC City Engineer who had subsequently left council employment and ZANU-PF. He was selected in a secret ballot as the MDC’s mayoral candidate. His selection prompted protests from the chairs of 15 residents’ associations in the capital city, who alleged that ‘there must have been a lot of politicking and vote-buying in the selection process’ which had sidelined by far the most popular candidate, Dr David Samudzimu. Samudzimu had led the HCRA for some years and was instrumental in the legal action which had resulted in the enforcement of the election process just after the local government minister had renewed the interim administration’s mandate until mid-2002.[21]

ZANU-PF was reported to be having trouble finding both mayoral and ward candidates willing to stand for it.[22] By 11 February, it had still not selected a candidate. Former Mount Darwin MP James Makamba declined his selection reportedly on the grounds of his business commitments. [23]  The Harare branch later elected its chair, Amos Midzi, but it was never publicly clear whether the Politburo had endorsed his candidacy.

The third candidate for the Harare mayorship was the little-known candidate for the National Alliance for Good Government (NAGG), Billet Magara.

Treating

The State dusted off its Kunzwi Dam project, to augment Harare’s water supplies, in an attempt to attract external funding. It had been shelved for lack of funds some years earlier.[24]

Local government minister Ignatius Chombo ordered his appointed ‘interim administration’ to ensure that 40 000 housing stands be allocated before the elections.[25] Three days before polling, the City of Harare announced that, in conjunction with the Ministry of Local Government and National Housing, it had allocated roughly 1 100 stands on Hopley Farm to the members of six housing co-operatives, some 580-odd from Hatcliffe in the Harare North constituency.[26] Treating in this and other forms is, of course, prohibited in Zimbabwe’s electoral law.

Problems

What most Harare and Chitungwiza residents found difficult to understand was the intention behind holding their municipal elections concurrently with the Presidential election. All of Harare’s parliamentary seats were won – by very large margins – by the MDC in June 2000. Holding its municipal elections at the same time as the presidential poll seemed designed to increase the voter turnout, to ZANU-PF’s detriment. One speculation suggested that executive mayorships would be abolished before the Harare elections could be held, in order to prevent ZANU-PF’s inevitable defeat in the capital city.[27] If this had been planned, it was not carried into operation. But the triple poll dramatically slowed down the voting process, and led to many tens of thousands ultimately not being able to vote for any of the three vacancies.

‘Queuing for 30 hours to vote is insulting to us all, as is being subjected to the torturous scrutiny of semi-literate election officials who couldn’t tell if ‘Mi’ came after ‘Ma’ or ‘Mu’. There appeared to be a deliberate attempt to frustrate the urban voter…

We have numerous instances of residents being unable to vote in local elections because they were not on the constituency roll (even if they were on the ward roll). The right to vote in local elections is based on residency not on citizenship and all those contributing to the finances of the city should be able to select councillors of their choice…

Many people owning property in Harare but registered outside the area for the presidential poll were similarly denied the right to choose their representatives in the city…

The post-election disqualification of two successful candidates (even though the Registrar-General had accepted their nominations only a few weeks previously) highlights the incompetence and wilfully anti-democratic attitudes of the Registrar-General…

CHRA believes the Registrar-General should be replaced with a civil servant who has both the will and the capacity to perform his or her functions diligently with due humility…

We call for the immediate publication of full election results, including those ballot papers spoiled by being placed in the incorrect box.’[28]

The Electoral Supervisory Commission issued its Message No 3, warning Harare and Chitungwiza residents to vote in their wards, because if they attempted to vote for the presidency outside their municipal wards but within their larger constituencies, their inked fingers would prevent them from casting their municipal votes elsewhere. Yet the number of urban polling booths were slashed, creating additional headaches for urban voters.[29] And confusion was exacerbated by a uniform white colour for all voting papers and boxes for all three polls (presidential, mayoral and ward).

There was enormous confusion, fuelled by the lack of official information, which some commentators thought to be a deliberate attempt to mislead the electorate and so reduce the number voting.[30] Two days before voting, contradicting all prior information to the contrary, and reported only in the independent press, the Registrar-General announced that ‘all people will be able to vote for the mayor and councillor at any polling station as long as they are voting in their constituency’.[31] This was not, in practice, allowed by many polling stations, which enforced the ‘ward only’ rule.

Results

In the Harare mayoral poll, Elias Mudzuri (MDC) was initially announced as having romped home with 262 275 votes, massively defeating both Amos Midzi (56 796) for ZANU-PF and Billet Magara of the National Alliance for Good Governance (3 467). These votes together represented only 87,9% of the ESC’s count of votes cast in the 16 Harare constituencies for the state presidency. On 19 April, the Registrar-General released revised figures, reportedly cutting Mudzuri’s votes to 221 414 and increasing Midzi’s to 58 809.[32]

An interesting aspect of the original results was noted by a letter to the editor of the Daily News, which alleged that while Mudzuri’s total (presumably using the Registrar-General’s figures) was within 217 votes of the figure announced for Morgan Tsvangirai in the 16 Harare constituencies, Robert Mugabe apparently polled 27 646 votes more than ZANU-PF’s mayoral candidate, Amos Midzi.[33]

On the Electoral Supervisory Commission’s voting figures, which diverged significantly from both sets released by the Registrar-General, Mudzuri actually won 5 284 (2,1%) more votes than Tsvangirai (256 991) on the Registrar-General’s first attempted count, and Midzi 25 620 (31,1%) less than Mugabe (82 416).

Frankly, it is highly unlikely that Mudzuri outpolled Tsvangirai in Harare, given the problems that Harare voters had in identifying the polling stations in their actual wards and the fact that many voted outside their wards. Using the ESC figures for the presidential results, Chitungwiza’s new mayor polled 5 461 votes fewer (10,3% less) than Morgan Tsvangirai in the three constituencies involved, while ZANU-PF’s outgoing mayor fell 2 028 votes (10,7%) behind Robert Mugabe. Since Harare constituencies did not differ significantly from those in Chitungwiza in their presidential results, their respective mayoral results suggest very strongly that, within Harare’s 16 constituencies, votes that went to Morgan Tsvangirai in the presidential election did not appear in his final total. The Registrar-General’s revised figures, cutting Mudzuri’s votes, may have had something to do with this problem.

In the Harare City Council elections, ZANU-PF garnered only one of the 45 seats. Two of the MDC’s 44 wins were declared void because the successful white candidates were not permitted to take up their seats on the grounds that they had recently lost their Zimbabwean citizenship. Why their nominations were allowed to stand, if this was indeed the case, remains a mystery. Registrar-General Tobaiwa Mudede did not include, in his list of results for the municipal elections published on 19 March 2002, the votes polled by the losing candidates for the council ward elections.

For the Chitungwiza mayorship, it was a straight run between Misheck Shoko (47 380) for the MDC and incumbent Joseph Macheka (16 953) for ZANU-PF, in a poll totalling 88,6% of that for the state presidency.

Despite its massive success in these ‘fundamentally flawed’ local government elections, neither the MDC nor the CHRA endorsed the results as free or fair, nor the outcome as legitimate. But both agreed to promote working relationships with the newly-elected mayor and council, while stopping short of endorsing such relationships with central government.

It was left to Harare’s new mayor to meet with the Minister of Local Government and National Housing, at which Ignatius Chombo was reported to have ‘told him what we expect of him as government’ and said Mudzuri had agreed to work with government.[34] Mudzuri himself was not, apparently, asked for his version of these assertions. Certainly his views were not published, giving the impression that central government would, in its old ways, dictate to local government what to do.

Which it proceeded to do. Following the new Council’s decision to rescind all probationary appointments (including many prominent ZANU-PF members) made by the Interim Administration in the last six months of its overstay, the Minister instructed that ‘all resolutions relating to labour issues and of a financial nature would now need approval from the Government before being implemented by the City of Harare’.[35] This directive was followed by two others, described by an unnamed city council official as making the minister Harare City’s Human Resources Director and the City Treasurer at the same time.

‘It is a show of strength by the government that the MDC may have won in council elections but ZANU-PF can always use the law to subvert the decisions of the opposition-dominated council.’[36]

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