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Court to Decide Legality of 2002 Zimbabwe Presidential Elections - 2003-10-31

The much delayed legal challenge to the 2002 Zimbabwe presidential election is scheduled to begin Monday in the High Court in Harare. President Robert Mugabe was returned to power in March 2002 in an election many observers categorized as neither free nor fair. Among other problems, they cited widespread violence, intimidation and vote-rigging. Mr. Mugabe's challenger, Morgan Tsvangirai of the Movement for Democratic Change, or MDC, immediately announced his intention to contest the result.

The election was held at the end of two tumultuous years of political change in Zimbabwe, which began with the formation of the MDC in 1999. It was the first significant opposition party since Zimbabwe's independence.

Less than a year later, in February, 2000, the MDC was part of a coalition that successfully campaigned against a government-sponsored constitution, which the voters rejected. In June of the same year, the party won 57 of the 120 contested seats in parliament, after a bloody election campaign, during which the ruling party declared certain parts of the country 'no-go' areas for the opposition. Two years later, the party expected growing popular discontent to catapult its leader to the presidency and oust Mr. Mugabe. But that did not happen in the disputed election.

It has taken 18 months for the opposition's challenge to come to court. Constitutional lawyer Lovemore Madhuku says the electoral law, under which elections are held in Zimbabwe, is not specific on the timeframe in which the courts should hear challenges of election results. "The electoral act says you must bring your petition within 30 days of the announcement of the result and that then, a petition must be expeditiously heard," he said. "But thereafter, there is no specified time limit within which an election petition must be heard. But the courts have said that election petitions should be heard as quickly as possible, which would mean that if you go beyond a year without hearing a petition, that is already contrary to general principles of the law." Even so, Mr. Madhuku said, this particular challenge has come to court much more quickly than some of the challenges arising from the year 2000 parliamentary elections. He said at least half of the more than 30 challenges lodged by the MDC against the results of that election remain outstanding. The challenge of the presidential election results angered Mr. Mugabe and his ZANU-PF party so much that, last year, they withdrew from the talks aimed at resolving the country's political and economic logjam. Earlier this year, the president said talks would only resume, if the opposition withdrew its challenge. "I am president of the country. I have legitimacy from the election and from the process that swore me [in] as president of the country," said Mr. Mugabe. "The MDC has said, 'we don't recognize you.' Does the MDC now say they recognize me? If they do, well, that means the action in the courts has got to be withdrawn, and we start talking, and I talk to them, knowing that they now recognize [me], and we can move ahead." Conditions have changed somewhat since Mr. Mugabe made his statement.

In part at the urging of South African President Thabo Mbeki, low-level talks have resumed between the two Zimbabwean political parties. Mr. Mugabe has also recently softened his hard-line rhetoric against the opposition. But the opposition party says it will only suspend and not withdraw its election challenge, and only if serious talks get underway. There are some factors that could push the dispute toward some sort of resolution. President Mugabe, 79, has more than four years remaining in his term. He has hinted he might be willing to step down, but analysts believe he is not likely to do that under the current constitution, which would require elections within 90 days. The opposition might also need more than 90 days to prepare for elections.

Meanwhile, the government is pursuing two treason charges against Mr. Tsvangirai, which he would like dropped.

So insiders say there is at least some hope the two sides could negotiate a settlement that would involve Mr. Mugabe's retirement, with a guarantee his party could remain in power for some limited period, to be followed by new elections, along with the dropping of the charges against Mr. Tsvangirai. But so far, that is all just talk.

University of Zimbabwe lecturer and political analyst Brian Raftopoulos says he does not expect significant progress toward solving the country's political deadlock any time soon.

"I think ZANU-PF are in a dilemma," he said. "On the one hand, they have given [South African] President Mbeki - at least President Mugabe has - the assurance that something would move, in terms of the dialogue, by the end of the year. I think, at this stage, they are likely to drag out the question of dialogue and to use the excuse of the upcoming trial as the reason why the discussions are not moving forward." So, the opposition's challenge goes before the High Court on Monday. Some observers, including constitutional lawyer Lovemore Madhuku, say it is not likely the court will actually annul the election and order a re-run, if only because, they say, the High Court bench is now stacked in favor of the ruling party. "I don't think that there is anyone in the MDC leadership who actually dreams that they will win that case," said Mr. Madhuku. "If there is anyone there who thinks they will win the case, then they are not suitable to be in charge of a political party that must operate on the basis of what is possible and what is not possible." But MDC Spokesman Paul Themba Nyathi says his party has put together 167 pages of what he calls devastating revelations of electoral misconduct that would be difficult for any judge to ignore. He says, whatever the outcome, the hearings will expose the way the elections were conducted.