11 5. The Election Petitions The petitions were historic, both because such petitions were unusual in Zimbabwe and because of the sheer number of petitions brought. Prima facie, the petitions were a source of discredit for the freedom and fairness of the General Election, and were additionally a severe threat to the credibility of the Zanu(PF) Government. The President and the ruling party seemed determined to derail any legal challenge to the election results; partly because such a challenge would provide a convenient forum in which the human rights abuses condoned and conducted by the government would be disclosed; and partly because the ruling party’s parliamentary majority would be threatened by any overturning of the results and subsequent bye-elections. Understandably, the President, by using his Presidential Powers, sought to nullify the MDC’s attempt to petition the High Court. The amendment to the Electoral Act sought to make legal all the results of the General Election by preventing any decision of the High Court from overturning the result. But in early January 2001, the full bench of the Supreme Court declared unconstitutional this presidential decreexii, and the High Court was forced to begin hearing the cases. The three judges initially assigned to hear the petitions were Justices James Devittie, Vernanda Ziyambi and Paddington Garwe. Although circumstances later forced the re-assignment of the petitions to two new High Court judges, for the purposes of this work, we will only look into the cases where judgments have been already handed down. The two new judges, Justices Rita Makarau and Ben Hlatswayo have both reserved judgment on the cases they have overseen. At the time of writing, Justice Devittie had handed down four judgments, Justice Ziyambi three, and Justice Garwe, only one. In the sections that follow, we will examine the judicial opinion from 8 of the decided cases to see how each judge treated the evidence before the High Court, and how the judge ultimately interpreted the law. Attention was given to a number of questions. How did each judge treat the concept of free and fair elections? What was the judges’ demeanour in court? How did they treat the witnesses? What overall picture did the judge glean from the evidence and what picture emerges in each constituency challenged? 5.1 J. Devittie: Hurungwe East Despite the array of charges laid out by the petitioner in the Hurungwe East petition, Judge Devittie decided to limit the court’s inquiry to the charge that general violence was of such a scale, as to render the election result void. Accepting general violence and intimidation as a sufficient ground to vitiate an election is not specifically expressed in the Electoral Act. Rather, section 124 of the Electoral Act specifically states that an election may be nullified if: Any corrupt practice or illegal practice has been committed with reference to the election…by or with the knowledge and consent or approval of the candidate…or by or with the knowledge and consent or approval of any of his agents. xiii Furthermore, Section 105 of the Electoral Act defines “Undue Influence” as a corrupt practice. It defines someone who is guilty of undue influence as: Any person who, directly or indirectly, by himself or with any other personMakes use of or threatens to make use of any force, violence or restraint or any unnatural means whatsoever upon or against any person; or Inflicts or threatens to inflict by himself or by any other person any temporal or spiritual injury, damage, harm, or loss upon or against any person; or Does or threatens to do anything to the disadvantage of any person; xii xiii The Herald, 31/1/01, p.1 See Electoral Act, Part XX, Section 124 AMANI TRUST: Neither Free nor Fair: High Court decisions on the petitions on the June 2000 General Election.