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'We shall flood the courts with litigation': the leaking of confidential minutes from a Movement for Democratic Change (MDC) meeting has shed light on the thinking of the party as it prepared for the election called by the Head of State, President Robert Mugabe. The strategy they decided on is highly controversial.

ON 3 JUNE 2013, TSVANGIRAI'S MDC-T and some of its affiliate NGOs, notably the Zimbabwe Lawyers for Human Rights (ZLHR), held a strategic election litigation meeting in the boardroom of the ZLHR, where a decision was taken to flood the courts with artificial cases to increase the workload of the Constitutional Court, as a way of getting the election date of 31 July extended. The minutes of the meeting were leaked into the public domain. Below is a reprint of the minutes.

[ILLUSTRATION OMITTED]

1. Welcome remarks and agenda

The chairperson welcomed everyone and thanked them for making it to the meeting at very short notice. The meeting resumed with CM being appointed as the chair. CM gave the agenda of the meeting as:

* Briefing the team on the recent Supreme/Constitutional Court Judgment in the Jealous Mawarire case.

* Strategising on the way forward informed by the judgment.

2. Deliberations

Briefing the team on the recent Supreme/Constitutional Court Judgment in the Jealousy Mawarire case

CM asked TB to outline the position of the party now and also due to the fact that the party was represented in the Jealousy Mawarire matter as the 2nd Respondent.

TB indicated that the party wished to be informed by the legal team, particularly CM in his capacity as the 2nd Respondent's legal practitioner in relation to how the matter unfolded. He also stated that at party level, they were concerned by the three key issues:-

(i) Implication of the judgment on a credible and legitimate election

TB noted that legitimate elections, the reform agenda were very important and must not be fast tracked. There was concern about voter inspection, as a political party the period of voter registration preparation, and voter inspection remained essential for a credible poll outcome. ZEC had been furnished with US$20 million for the voter registration exercise within the course of the preceding week but nothing tangible could be seen on the ground. It was not feasible to have an election before July 29 2013, if there was to be compliance with the key process required by the Constitution such as voter registration, voter inspection and nomination processes.

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(ii) The precedence being created by the Constitutional Court

TB further stated that there was concern about the precedent being created by the Constitutional Court of allowing the court to interfere in matters of executive discretion when they had a right of review after specific action had taken place. The precedent set is that any kind of executive function is capable of infraction by the judiciary. There was a positive element in the judgment however, in that the threshold of locus standi had been lowered.

(iii) Composition of the bench (Constitutional Court) and transfer of the Jealousy Mawarire matter from Supreme Court to Constitutional Court

TB indicated that the composition of the constitutional bench and appointment of some judges was a point of concern. Two judges were promoted to the Supreme Court before the publication of the new Constitution on June 22. Two more judges were appointed on May 25 2013. These are key appointments in respect of which the Prime Minister ought to have been consulted. The appointments are therefore irregular.

Further, the Mawarire matter was filed before the Constitution became operative. There was, therefore, need to understand the stage at which the Supreme Court case (SC146/13) became a constitutional court matter. It had to be clarified whether this was by consent of the litigants or there was invocation of a clause in the Constitution.

TB concluded by indicating that all the issues raised deserve attention and relief must be sought. He further stated that as a lawyer he was concerned since when the Constitutional Court normally issued a judgment, it is a declaratory--and not give a judgment as an operational court.

DM confirmed that the party had come up with a position on the required reforms before the election is held. These reforms include voter registration, media, end of state sponsored political violence, code of conduct for security forces, and common legislative reforms.

DM further stated that the reforms are [sic] supported by specific provisions in the Constitution and these need [sic] to be achieved before the election. He further said that they have [sic] become constitutional rights that must be respected. Anyone can be affected by these issues and bearing in mind the lowered threshold of locus standi anyone can approach the Constitutional Court and insist on these reforms being carried out.

CM asked if there was anything to add from the office of the PM. ATM concurred with all the issues raised.

EM said that he was more persuaded in looking at issues in a practical and robust manner to achieve what we want to achieve. There was a need to set out what the party wanted to be done and marry with what is provided in the Constitution. The first step would be setting out what the party wants to achieve before going for election. EM cited the following examples:-

Security sector reforms: Security sector realignment could now be achieved by going through the Constitution; by going through the constitutional provisions laws to be amended can be identified. There is a need to go through each and every legislation to check if it complies with the Constitution. EM gave the example of Defence Services and said constitutionally it is now possible to demand for such a piece of legislation to be amended.

Other legislative reforms: The Constitution requires several laws to be amended and aligned to it. There is need to see that the Constitution is actualised and put into effect by amending these laws. Examples of laws such as AIPPA, POSA, Defence Act, and Electoral Act was [sic] given.

POSA-and AIPPA put against the provisions of the Constitution and there is need to convince the people looking at the situation in Zimbabwe such as Sadc at the next summit that these issues have been constitutionalised and need to be actualised. The amendments can be done within a week if there is agreement by parties. He further stated that as a party they had a trump card and it was not possible to have an election by 31 July if the Constitution is followed. EM further stated that i the above processes were to be carried out, it will [sic] not be feasible to hold elections by July 29 2013. He provided the estimate time frames that would be required for some key pre-electoral processes as:-

* Publication of new Constitution--May 23 2013 (done).

* Voter registration (30 days) starting from May 23 to June 21 (it is not factual that voter registration started on May 23 2013, it is just hypothetical).

* Nomination process and at least 15 days' notice period. EM indicated that if nomination ends on July 21, the earliest election date will be August 7 2013, and that is way past the July 29 deadline.

EM further stated that Sections 162 (5), 157 (5), say once the President proclaims then no amendments will be effective for the purpose of the new Constitution, the process of amendment is critical and affects the timeline. EM again stated that it was not clear if the President will follow this patent reasoning and it was imperative for the process of amending the laws to be expedited.

CM asked if ZLHR had anything to add. DC said that it was not clear which court heard this matter. It was very interesting as it seems two different courts, one constituted under the Lancaster House Constitution and the one under the new Constitution. He further stated that if you look [sic] at the things that have to be done constitutionally, according to calculations elections, elections can [sic] only be held on August 9 2013.

Another issue was that the legislative amendments that have to be done need to be brought before Parliament. The last issue was that even when there is a legal strategy, the judges are a cause of concern, for example Hlatswayo, Gowora, Guvava. They even had acting judges such as Chiweshe, there was a need to look at the calibre of judges and their past record.

DC further stated that there was a need to have a position before the Sadc summit with facts and numbers, etc. RH added that there was a need to remember the Sadc extraordinary sum mit starting on 9 June 2013.

EM stated that before the President of Zimbabwe comes back, there was a need to do comprehensive papers for the principals so that they are confronted with this.

TB stated that he was against putting eggs in one basket, there was need to take advantage of the pancake meetings, media strategy, and not create a mood that we are not ready for elections as the party is ready and primaries will be concluded in the coming week. On Saturday a huge rally will be held. He further stated that the judgment cannot [sic] be left as it is.

TB addressed the issues of amendment by indicating that there had been debates and some agreements reached on proportional representation, method of electing two representatives of the disabled, they reached agreement on residence, agreed on movement of results so that they are declassified on basis of polling station when they go to the presidential command centre.

There was agree three persons and two can sign [the] form to be submitted to ZEC and ZEC has obligations to say if [the] form is not valid and must be amended).

TB stated that they had not reached agreement on Section 57 of the Electoral Act. Zanu was also refusing to budge on need to amend the Rural District Councils and Urban Councils Acts saying Zanu was refusing to align any law that has to be aligned and saying that was for the next government to do.

TB further stated that Sadc facilitation team will be in Zimbabwe on Wednesday. The meeting was informed that at the negotiators platform, Zanu had seemingly demoted Nicholas Goche and replaced him with Emmerson Mnangagwa.

CM asked if there were any additions to the discussion. EM said that Section 57 was ultimate in producing free and fair elections, that is an issue which cannot be compromised and this issue was very dear not only to the party but to [the] generality of the people. EM enquired about planning of the arguments in the Mawarire case and whether the case was finalised within the parameters of the Constitution. LU advised that the argument had not been heard by [the] Supreme Court on urgency but the registrar through minutes which were on a letterhead of the Constitutional Court indicated that heads must be filed within a stipulated time, this was more of a directive from the registrar.

[ILLUSTRATION OMITTED]

[ILLUSTRATION OMITTED]

CM suggested that there was a need to get a litigant who will allege that rights have been violated as ZEC failed to register them as a voter. He asked what others thought about the proposal to challenges the composition of the bench. TZ enquired whether it was possible to use the electoral reform as a hostage situation to force Zanu to amend, June 29 cut-off date was looming and he wanted to find out what happens?

TB indicated that naturally if parliament is [sic] dissolved there will [sic] be a crisis and the Presidential Powers are [sic] likely to be used. LU indicated that the existing legislation had to be interpreted in a manner that is [sic] consistent with the new Constitution. TB added that without the new law there is a vital lacuna that cannot allow elections.

DM asked if it was possible to compel ministers to bring legislation to parliament. He also stated there were litigants out there and there was a need to take Mawarire case against Zanu. TB suggested that there was a need to have a principal application based on compliance with [the] Constitution and outline things that need to be done that cannot be achieved by July 29.

There was a need to have a document that will be used by the principal. He further stated that there was a need to challenge the composition of [the] court, ie. appointment. He agreed with the idea of flooding the courts as suggested.

[ILLUSTRATION OMITTED]

EM agreed with multiplicity of actions but advised there was a need to draw a line. CM indicated that the litigants do not need to be the party MDC.

AT added that there was a need to expose failure of judicial reform. There was an opportunity to demonstrate that Zimbabweans have no confidence in the justice system. He also said that there was need to consolidate the democratic transition. Applications could be done by CSOs [civil society organisations] on violence, lack of prosecutions, lack of accountability, general institutional failure to protect fundamental rights making it impossible for Zimbabweans to participate.

EM said that academic arguments were very good but asked which bench was going to hear this. CM advised that when Mawarire made the application, it was deemed to be academic. TB further stated that from the heads of arguments filed in the case it was clear that they did not expect anything.

AM suggested that one application could be filed on behalf of a victim of political violence making application to the Constitutional Court that they expect the President to make reforms to protect their rights so that they are able to vote. TB added that this could be done in terms of Section 155 as possible litigation.

SH advised that there was need to build a paper trail.

CM said that there was a need to challenge the 31 July date as inconsistent with constitutional requirements and possibly couch it in same language as the Mawarire application. CM further said that the Constitutional Court did not take into account the necessary steps needed in [the] Constitution and this could be in the main application. He suggested that there be sub-applications on the composition of [the] court too.

TB added that aliens, violence, technical applications on composition, legality of [the] Constitutional Court decision in view of the illegal composition can be done separately. DM said that those with slips that show they were registered can then say they want to be afforded the time to do voter registration inspection properly.

Possible litigants were [sic] identified as Maisiri. DC urged people to be aware of the new Constitution and people have to be aware of new [law and] decide where to file applications.

RH advised that Irene had also suggested that an application be made that if the decision is enforced and a date is announced soon to cater for an election before July 31, then the President will be in violation of the constitutional provision stating that once a date is proclaimed, no further amendments can be made to any electoral law or electoral-related law, in effect, the decision of the majority of the court is going to lead to the President violating the Constitution and so they will also be complicit in such violation.

TB suggested that [that should be] included in the main application, and that the respondents that can be sued are ministers, ZEC. CM asked for other non-legal interventions. TB said that this was the strongest case for [the] return of human rights bulletin and he was willing to be part of the editorial and to write papers.

DM suggested that there [should] be a meeting of leaders of political parties to discuss common stance about position before elections, and have application where there are more applicants and not just MDC. TB suggested that applications be done by different litigants.

3. Way forward

CM summarised the discussion indicating that there had been agreement not to dwell much on technical litigation on the MDC side and be more persuaded with litigation that would positively portray it on the moral point of view.

For such litigation, which would be necessary to neutralise the impact of the Mawarire decision, other litigants would be identified. For example, it might be possible to bring side litigation to impugn laws such as POSA and AIPPA. Different law firms could be used to file the identified side litigation matters, that were also considered necessary to increase the workload of the Constitutional Court and embarrass itself in the process by making it realise the impracticality of its Mawarire decision. Potential litigants and possible applications were summed up as:-

1. Main application--highlighting that the Constitutional Court did not take into account the necessary steps needed in constitution, include arguments raised by IP in this application. (Selby Hwacha, Lewis Uriri, Tawanda Zhuwarara).

2. Application on behalf of aliens or disabled people (Bryant Elliot assisted by Jeremiah Bamu).

3. Application focusing on issues of proportional representation (assisted by Belinda Chinowawa).

4. Application on behalf of victims of political violence calling on reforms to enable them to vote, knowing that they will not be victimised (Alec Muchadehama and Chris Mhike).

5. A challenge on the composition of court (Tonderai Bhatasara).

6. Possible application focusing on impugning various laws, i.e AIPPA, POSA (can be consolidated in main application. Other option to be done by Tarisai Mutangi).

The meeting further agreed that it will [sic] be essential to take into account technical consolidations that may [be] raised against the litigation such as [the] choice of court for the litigation and the doctrine of constitutional avoidance, the issue of res judicate (Matamisa decision), timing of the litigation, locus standi, etc. These are issues which will be addressed on the actual pleadings and did not call for further immediate debate.

CM enquired whether there was funding from TB and RH. TB advised they did not have funds, and RH confirmed that funding was available but costs had to be reasonable as funds were limited to cater for potential electoral litigation that will occur later, such as petitions.

She further stated that there may be negotiations on fees and ZLHR will identify specific lawyers and law firms to deal with the cases, and there may be a need for other lawyers to assist here and there on a pro bono basis as part of their constitutional obligation.

It was agreed that MDC will identify the litigants. CM suggested that the minute takers expand minutes to show who may do what.

4. Any Other Business

DC asked who the principal point person for the party was--RZ, Shonhe, TB and EM. It was agreed that RZ would be principal focal person. There being no further business to discuss, the chairmen called the meeting to an end and thanked all who made it to the meeting.

Adopted as a true and accurate record on [...] June 2013.

Meeting on Strategic Election Litigation

June 3 2013, ZLHR Boardroom

Present:

1. Chris Mhike (CM) (chairing)

2. Hon. Eric Matinenga (EM)

3. Hon. Tendai Biti (TB)

4. Hon. Douglas T. Mwonzora (DM)

5. Rose Zigomo (RZ)

6. Selby Hwacha (SH)

7. Alex T. Magaisa (ATM)

8. Advocate Lewis Uriri (LU)

9. Alec Muchadehama (AM)

10. George Gapu (GG)

11. Arnold Tsunga (AT)

12. Dzimbabwe Chimbga (DC)

13. Rose Hanzi (RH)

14. Jeremiah Bamu (JB) (minuting)

15. Tawanda Zhuwarara (TZ)
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Title Annotation:MDC MINUTES
Publication:New African
Geographic Code:6ZIMB
Date:Jul 1, 2013
Words:3202
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