'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

Article excerpt

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.

[ILLUSTRATION OMITTED]

(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. …