Justice Tendai Uchena, recently sworn in to hear electoral disputes in the
Electoral Court, made the observation at the opening of hearings of 105
electoral petitions filed by both the ruling MDC and the opposition Zanu
(PF).
Justice Uchena made the comments this week as he heard opening submissions
for the court to nullify the results of 105 constituencies won by both Zanu
(PF) and the MDC.
Zanu-PF is challenging results in 53 constituencies while the MDC is
contesting those in 52 constituencies. Under the law, the court has six
months to deal with the cases, with another six months allowed for appeals.
But constitutional lawyers say the cases should not disrupt the work of the
government and that parliamentarians can still be sworn in.
This week the Electoral Court started hearing 11 cases.
Justice Uchena said if the electorate is subjected to beatings, torment,
diverse brutality and humiliation, designed to subjugate its freedom of
choice during an election, a nullification of that poll might be warranted.
MDC lawyer Andrew Makoni argued that the MDC’s supporters had been denied
the opportunity to vote because of violence or that they did not have
lodgers cards and were thus unable to prove their status. He produced
affidavits of eight people in support of his claim.
Justice Uchena said the court had full jurisdiction over all matters
pertaining to electoral disputes save where the resolution of the dispute
might involve a breach of the privilege of Parliament. He said in such
instances, the jurisdiction it had was regulated by the Electoral Act which
did not oust or replace the court’s existing jurisdiction, but expanded it.
The judge said to give a topical example gleaned from current events, one
would have to be singularly isolated from public affairs to be unaware of
current unrest and political discord in the country.
“Even an ivory tower would not be above the news,” he said. “As far as a
court of law is concerned, whatever might be the knowledge or belief of
those closer to events than our lofty judicial detachment, none of the
allegations I am about to repeat can be regarded as anything other than
unproven allegations. They serve, nevertheless, to illustrate the point I
wish to make. One hears the charges that people are being murdered by reason
of their candidacy for, or contributions to, a certain political party. The
people are being subjected to beatings and torments for their political
adherence; that agents provocateurs induce people to betray their views by
simulating the gesture and slogans of those they wish to persecute; that
whole communities of people are herded into ‘re-education’ centres and then
subjected to diverse brutalities and humiliations designed to subjugate
their freedom of choice. If any such misdeeds were established in any
particular constituency, then that may be an irregularity or transgression
of the electoral ethic and might justify the inference that the result must
have been affected. The nullification of the poll at that constituency might
be warranted,” he said.
Justice Uchena said no matter what perception or notoriety may attend such
allegations, no court would act upon them unless they were proven.
“Once proven, whether before polling, in order to restrain such practices,
or thereafter, to impeach them, then the court has full power to intervene.
Power, of course, in the sense of jurisdiction and moral authority. The
court, like the Pope, has no divisions. For the efficacy of its orders the
court relies upon the submission of the executive to the rule of law.” he
said.
This recognition by the judiciary is bound to set aside several electoral
victories by Zanu (PF) which, in most instances, allegedly used violence to
disenfranchise MDC supporters from voting. Analysts say this was likely to
extend the MDC’s lead in the House of Assembly, where the party boasts of
109 seats as compared to the opposition Zanu (PF)’s 97.
Post published in: News