Lone judicial voice in runup to Zimbabwe's elections

In Zimbabwe elections on 30 July were followed by violence in which soldiers opened fire on people protesting against what they claimed were “rigged” election results, killing at least six people.  During the months before the elections, however, many court applications tried to ensure broader democracy and a more transparent election process – almost all without success. Read here about the solitary exception in which a judge ordered the ruling party to stop misusing schools and school children for party rallies, only to be overturned on appeal.

OF all the many pre-election cases heard by Zimbabwe’s courts, only one resulted in a judicial decision that broadened and protected democracy. And even in this case, the outcome was overturned on appeal.

The stand-out case was heard by Judge Joseph Martin Mafusire. In Amalgamated Rural Teachers Union of Zimbabwe v Zanu-PF he was asked for an interim order to prevent school pupils, teachers, school buses and buildings from being used as though they were resources belonging to the ruling party.

Evidence before court painted a grim picture: according to the teachers’ union, children were being coerced to attend and participate in political rallies called by Zanu-PF. Schools were also forced to close to accommodate its political activities. Teachers were compelled to attend the rallies and to wear party regalia; buses were commandeered along with furniture and the school premises itself for use by supporters attending rallies.

Judge Mafusire’s decision on this application, only recently available, noted that while the ministry of education had not opposed the application and agreed to be bound by the court’s decision, the party had raised a number of technical problems including the forms used in the application.

The judge said for the party to have raised the point about the incorrect form – Form 29B instead of Form 29 - was “a mandatory ritual”, and a “sterile dispute”. He condoned the error, noting that the respondent had “no choice but to concede” there had been no prejudice from use of the wrong form. There were also complaints about poor drafting and typographical mistakes but, said the judge, while there was “an apparent lack of skill and precision in drafting the certificate of urgency” this was not fatal.

While Zanu-PF argued there was no urgency about the matter the judge considered “that any breach of the rights accorded by the constitution should not be allowed to subsist for any day longer”. Courts would be failing in their constitutional duty if they were “to remain unmoved in the face of reports of such flagrant abuse”.

It could not be a case of “business as usual” for courts: “they should be so concerned as to set aside all other business in order to deal with the situation”.

All in all, he concluded, none of the technical objections should block the court from deciding the matter on its merits, particularly since the complaint related to a breach of fundamental rights and freedoms enshrined in the constitution.

The teachers’ union case was “well supported” with “very strong evidence of abuse” by Zanu-PF in the form of sworn eye-witness statements, pictures, media reports, documents, correspondence and the like.

I was satisfied that the respondents were guilty of the blatant abuse of the rights and freedoms of the school children, their schools and their teachers.

“Evidence before me was that the Chinzanga Primary School event was a political rally … (that) school children had been forced to attend. The evidence also showed that it was rampant practice … to commandeer school premises, buses and other vehicles, and to requisition other school assets such as desks, chairs and sofas for use at its rallies.”

The argument that Zanu-PF might have paid for these resources was “puerile”, and the party was free to hire what it needed from private companies “and leave school assets alone.”

“The high court is the upper guardian of all minor children in Zimbabwe. No one tramples on their rights and freedoms and expects the court to look the other way.”

Reports that children had to walk long distances for rallies should “invoke outrage”. Events at some political rallies were plainly bad for children to witness and to hear. And while counsel argued that the party was now under new leadership and rallies would thus now be different, “I did not agree”.

In a most noteworthy comment the judge added: “Evidence placed before me showed that the first respondent (Zanu-PF) was still the same old creature and still perpetrating the same old abuses.”

He therefore granted the urgent interim order preventing the party from using school children, teachers and school resources.

Shortly afterwards, Judge Mafusire dealt with a follow-up application by the teachers who wanted the order executed, despite Zanu-PF’s appeal scheduled for hearing three days before the election date.

The judge did not back down, however. He noted evidence by the teachers’ union that despite his earlier order, the party had continued to behave as before and concluded that his previous bar on party use of schools should “remain operative” despite the pending appeal.

“In my judgment in the original application, I made a positive finding that the respondents were guilty of flagrant abuse of the rights and freedoms of the school children. … Both parties agree that campaigning for votes … has entered the home stretch. Political parties are leaving no stone unturned. There is heightened political activity. More rallies have been lined up. It is probably now, more than ever, that school children and their teachers in particular, require greater protection from some excesses by political parties.”

The main concern of Zanu-PF seemed to be about negative publicity associated with the court order. “But it is up to it to desist from the conduct complained of. At any rate, that kind of prejudice is incomparable to that being suffered by the school children.”

He therefore approved the execution of his initial order with a costs order against the party.

Judge Mafusire’s decisions in this case are the only ones of their kind made by any court during the pre-election period. And just a few days after his orders, they were set aside on appeal.

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Read the full judgments:

Amalgamated Rural Teachers Union of Zimbabwe & Another v ZANU PF & Another (HMA 36-18, HC 263/18) [2018] ZWMSVHC 36 (28 June 2018);

Amalgamated Rural Teachers Union of Zimbabwe & Another v ZANU PF & Another (HMA 37-18, HC 297/18) [2018] ZWMSVHC 37 (17 July 2018);