Coltart challenges judge’s verdict

Movement for Democratic Change Shadow Minister for Justice David Coltart said High Court Judge Vernanda Ziyambi had misinterpreted the Electoral Act after she dismissed a petition by the MDC seeking nullification of the Zimbabwe African National Union-Patriotic Front victory in the Zvishavane constituency in the 2000 parliamentary elections.

This was the first judgment to be handed down following the MDC’s legal challenge to the results in 37 constituencies.

Ziyambi acknowledged that politically motivated violence and intimidation had occurred in Zvishavane prior to the election but asserted that both sides were responsible.

She ruled against the MDC because it had failed to link the ZANU-PF candidate -Pearson Mbalekwa- to the violence; the violence and intimidation were sporadic and not “of a general nature”; and the witnesses were unreliable.

Coltart insisted that the finding revealed a misinterpretation of the Electoral Act, which required proof of such a linkage only if the plaintiff was seeking the banning of the individual from electoral politics.

In this particular case, however, the MDC had sought only to have the election result overturned.

The United States embassy said although Ziyambi was generally viewed as sympathetic to ZANU-PF, her interpretation in this case appeared to be legally defensible.

Full cable:

Viewing cable 01HARARE1123, MDC LOSES FIRST ELECTORAL CHALLENGE

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This record is a partial extract of the original cable. The full text of the original cable is not available.

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——————D72412 261445Z /38

FM AMEMBASSY HARARE

TO SECSTATE WASHDC PRIORITY 8509

INFO NSC WASHDC PRIORITY

SOUTHERN AFRICAN DEVELOPMENT COMMUNITY

AMEMBASSY NAIROBI

C O N F I D E N T I A L HARARE 001123

SIPDIS

NSC FOR SENIOR AFRICA DIRECTOR JENDAYI FRAZER

LONDON FOR GURNEY

PARIS FOR BISA WILLIAMS

NAIROBI FOR PFLAUMER

E.O. 12958: DECL. 03/21/11

TAGS: PHUM PGOV KDEM PINS ZI

SUBJECT: MDC LOSES FIRST ELECTORAL CHALLENGE

CLASSIFIED BY CHARGE D’AFFAIRES EARL IRVING. REASONS: 1.5

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PAGE 02      HARARE 01123 261445Z

(B) AND (D).

¶1. (U) ON MARCH 23, HIGH COURT JUDGE VERNANDA ZIYAMBI

DISMISSED A PETITION BY THE OPPOSITION MOVEMENT FOR

DEMOCRATIC CHANGE (MDC) SEEKING NULLIFICATION OF ZANU-PF’S

PARLIAMENTARY VICTORY LAST JUNE IN THE ZVISHAVANE

CONSTITUENCY. ZIYAMBI’S JUDGMENT WAS THE FIRST TO BE

HANDED DOWN BY THE HIGH COURT SINCE IT BEGAN HEARING LAST

MONTH LEGAL CHALLENGES TO THE RESULTS IN 37 CONSTITUENCIES.

IN ISSUING HER JUDGMENT ORALLY (THE WRITTEN VERSION IS

LIKELY TO FOLLOW SOMETIME THIS WEEK), ZIYAMBI ACKNOWLEDGED

THAT POLITICALLY-MOTIVATED VIOLENCE AND INTIMIDATION HAD

OCCURRED IN ZVISHAVANE PRIOR TO THE ELECTION, AND ASSERTED

THAT BOTH SIDES HAD BEEN RESPONSIBLE. HOWEVER, SHE RULED

AGAINST THE PLAINTIFFS FOR THREE REASONS: THEY HAD FAILED

TO LINK THE ZANU-PF CANDIDATE — PEARSON MBALEKWA — TO THE

VIOLENCE; THE VIOLENCE AND INTIMIDATION WERE SPORADIC AND

NOT “OF A GENERAL NATURE”; AND THE WITNESSES WERE

UNRELIABLE.

MDC’S REACTION

————–

¶2. (C) IN A MARCH 26 CONVERSATION WITH POLITICAL SECTION

CHIEF, MDC MP — AND SHADOW MINISTER OF JUSTICE — DAVID

COLTART CRITICIZED THE HIGH COURT DECISION. ACCORDING TO

COLTART, THE PRIMARY FACTOR IN ZIYAMBI’S DECISION HAD BEEN

THAT THE ZANU-PF CANDIDATE COULD NOT BE DIRECTLY LINKED TO

THE VIOLENCE AND INTIMIDATION PRECEDING THE ELECTION IN

ZVINAVASHE. THAT FINDING, COLTART INSISTED, REVEALED A

MISINTERPRETATION OF THE ELECTORAL ACT, WHICH REQUIRED

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PAGE 03       HARARE 01123 261445Z

PROOF OF SUCH A LINKAGE ONLY IF THE PLAINTIFF WAS SEEKING

THE BANNING OF THE INDIVIDUAL FROM ELECTORAL POLITICS. IN

THIS PARTICULAR CASE, HOWEVER, THE MDC HAD SOUGHT ONLY TO

HAVE THE ELECTION RESULT OVERTURNED. COLTART ALSO SCOFFED

AT ZIYAMBI’S CONTENTION THAT INCIDENTS OF VIOLENCE HAD BEEN

SPORADIC, NOT GENERAL, EMPHASIZING THAT THE ATMOSPHERE IN

ZVISHAVANE WAS “SO BAD THAT IT SUBVERTED THE ENTIRE

ELECTORAL PROCESS.” COLTART SAID THE MDC WOULD APPEAL TO

THE SUPREME COURT. THE MDC MP EXPRESSED A BROADER CONCERN

THAT NONE OF THE THREE JUDGES HEARING THE ELECTORAL

CHALLENGES — ZIYAMBI, PADDINGTON GARWE, AND JAMES DEVITTIE

— APPEARED INCLINED TO ACCEPT THE OVERWHELMING EVIDENCE

PRESENTED IN THE SEVEN CASES HEARD SO FAR. IN ONE

INSTANCE, JUDGE DEVITTIE HAD REFUSED EVEN TO CONSIDER

DETAILED ASSESSMENTS OF THE ELECTION BY EU AND COMMONWEALTH

OBSERVERS, COMPLAINING IN OPEN COURT THAT HE DID NOT HAVE

THE TIME TO READ SUCH LENGTHY DOCUMENTS.

COMMENT

——-

¶3. (C) THE MDC IS CLEARLY DISAPPOINTED WITH JUDGE

ZIYAMBI’S DECISION, BUT, FRANKLY, WE WERE NOT SURPRISED AT

THE RULING. WITNESSES CAN MAKE OR BREAK A CASE, AND THE

WITNESSES IN THE ZVISHAVANE SUIT WERE NOT PARTICULARLY

CREDIBLE, WERE CLEARLY COACHED ON HOW TO RESPOND TO CERTAIN

QUESTIONS, AND WERE OFTEN SURLY AND DISRESPECTFUL TOWARD

THE JUDGE. DAVID COLTART’S COMPLAINT NOTWITHSTANDING,

REASONABLE PEOPLE CAN DISAGREE IN THEIR INTERPRETATIONS OF

THE FUZZILY-WRITTEN ELECTORAL ACT. ALTHOUGH ZIYAMBI IS

GENERALLY VIEWED AS SYMPATHETIC TO ZANU-PF, HER

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PAGE 04       HARARE 01123 261445Z

INTERPRETATION IN THIS CASE APPEARS TO OUR LAYMAN’S EYES AT

LEAST TO BE LEGALLY DEFENSIBLE. THE ZVISHAVANE JUDGMENT

SUGGESTS THAT ZIYAMBI’S PREDOMINANT CONSIDERATIONS IN THE

REMAINING CASES WILL BE WHETHER THE ZANU-PF CANDIDATE CAN

BE LINKED TO INCIDENTS OF FRAUD, VIOLENCE, OR INTIMIDATION

AND WHETHER SUCH ABUSES AFFECTED SIGNIFICANT PORTIONS OF

THE POPULATION. JUDGING FROM THEIR QUESTIONS IN THE CASES

BEFORE THEM, JUDGES GARWE AND DEVITTIE ARE LIKELY TO TAKE

THE SAME APPROACH. ADDITIONAL JUDGMENTS COULD BE

FORTHCOMING SOON, AS SIX OTHER CASES HAVE NOW BEEN

COMPLETED.

IRVING

CONFIDENTIAL

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