|
23 June 2008. Attention: Honourable Justice Chiweshe The Chairman Zimbabwe Electoral Commission 7th Floor, Century House HARARE Dear Sir, Re: PRESIDENTIAL RUN-OFF ELECTION SCHEDULED FOR 27 JUNE 2008 I write this letter to advise you that for reasons set
out in this letter, it is no longer possible for the holding of the
Presidential run-off election set for the 27th June 2008. In my considered view, the conditions presently
obtaining thoughout the country make it virtually impossible for a proper
election envisaged in both the Constitution of Zimbabwe and the Electoral Act
[Chapter 2.13] to take place. This being the case, the election scheduled for
Friday 27th June 2008 cannot be an election as provided for by our
law and accordingly, it will be a nullity if it were to be proceeded with. Section 107 of the Electoral Act deals with the withdrawal
of candidature from a Presidential election. Subsection 1 thereof provides that
a nominated candidate for election as President may, by notice in writing
addressed to the Chief Election Officer withdraw his or her candidature before
21 days from the day or first day as the case may be on which the poll in an
election to the office of President is to be taken. This section in my
respectful view does not apply to a Presidential run off election. Section 110
(3) provides that where two or more candidates for President are nominated, and
after a poll taken in terms of subsection (2) no candidate receives a majority
of the total number of valid votes cast, a second election shall be held within
21 days after the previous election. It is quite clear therefore that Section
107 (1) was clearly not designed for a presidential run-off election as it
would not make sense to expect a candidate from a presidential run-off election
to give 21 days notice of his/her withdrawal where such election has to be held
within 21 days anyway. Section 107(3) makes it much more clearer that Section
107 does not apply to a presidential run-off election. It provides that:- “where a candidate for election as President has
withdrawn his/her candidature in terms of this section, the sum deposited by or
on his behalf in terms of subsection (1) of Section 105 shall be forfeited and
form part of the funds of the commission”. No money was ever deposited for the Presidential
run-off election in terms of Section 105 by any candidate. Furthermore, there has been no rules prescribed for
the conduct of a presidential run-off election and in particular the notice
period set for the withdrawal of candidature by a participant. Accordingly, any
candidate wishing to withdraw his candidature is free to do so at any time
before such an election. In any event, as I have already pointed out, the
election set for the 27th June 2008 is not a proper election but a
nullity. In the circumstances, the question of the withdrawal from such an
election and the notice thereof cannot be an issue. REASONS FOR WITHDRAWAL In terms of Section 61(4) of the Constitution of
Zimbabwe, the Zimbabwe Electoral Commission is obliged by law to ensure that
elections are conducted efficiently, freely, fairly, transparently and in
accordance with the law. Section 3 of the Electoral Act sets out in detail the
principles which must govern democratic elections. This Section provides as
follows:- “Subject to the Constitution and this Act, every
election shall be conducted in a way that is consistent with the following
principles- (a)
the authority to govern derives from the will of
the people demonstrated through elections that are conducted efficiently,
freely, fairly, transparently and properly on the basis of universal and equal
suffrage exercised through a secret ballot; and (b)
every citizen has the right- (i)
to participate in government directly or through
freely chosen representatives, and is entitled, without distinction on the
ground of race, ethnicity, gender, language, political or religious belief,
education, physical appearance or disability or economic or social condition,
to stand for office and cast a vote freely; (ii)
to join or participate in the activities or and to
recruit members of a political party of his or her choice; (iii)
to participate in peaceful political activity
intended to influence the composition and policies of Government; (iv)
to participate, through civic organisations, in
peaceful activities to influence and challenge the policies of Government; and (c)
every political party has the right- (i)
to operate freely within the law; (ii)
to put up or sponsor one or more candidates in
every election; (iii)
to campaign freely within the law; (iv)
to have reasonable access to the media”. What has been going on in this country immediately
after the elections held on the 29th March 2008 is a clear testimony
that the elections scheduled for the 27th June 2008 cannot be held
efficiently, freely, fairly, transparently and in accordance with the law. On the 21st May 2008, after having noted
the sad events that were happening, I instructed my Legal Practitioners Dube
Manikai & Hwacha to write a letter to you setting out in detail various
concerns which were an impediment to the holding of a free and fair election.
For ease of reference, I attach a copy of the said letter. Sadly, that letter
was neither acknowledged nor responded to. In my view, if your commission had
taken steps to abide by its constitutional mandate, the situation would have
probably not worsened. Regrettably, the situation since the letter from my
lawyers has worsened to such an extent that no proper election can be carried
out. I set out below few examples of the adverse conditions that vitiate the
holding of a free and fair election as envisaged in our law:- 1. THE
FAILURE BY THE ELECTORAL COMMISSION TO ENSURE FREE AND FAIR ELECTIONS Your Commission has failed to discharge its mandate in
the following respects; 1.1
Your Commission failed to declare a winner of the Presidential elections
as provided for in the Third Schedule of the Electoral Act. This point was well
articulated by my lawyers in their letter of the 21st May 2008 and I
associate myself with the submissions made in that letter in regards to this
issue. In my view, a Presidential run-off election should have been conducted
after due compliance by your Commission and in particular the Chief Election
officer with this Section. 1.2
Your Commission has failed to stop and/or condemn continued utterances
by senior ZANU PF officials including Mr Robert Mugabe to the effect that
irrespective of the election result, Mr Robert Mugabe was not going to move out
of his office. The failure by your Commission to condemn such utterances right
from the beginning clearly encouraged ZANU PF, war veterans aligned to ZANU PF,
senior ZANU PF officials and Mr Robert Mugabe to make it their theme during
their campaigns that a President does not come to power through the electoral
process but rather through the barrel of the gun. This theme which has become
pervasive thoughout the ZANU PF campaigns makes people wonder whether we are in
an election or in a war. 1.3
Your commission failed to
abide by the provision of the Electoral Act when it failed to conduct the
presidential run-off election within 21 days from the date of announcement of
the presidential elections results conducted on the 29th March 2008.
2. VIOLENCE The violence currently obtaining in this country which
has resulted in numerous deaths, destruction of homes, displacement of various
people and injuries to people is something that is clearly in the public domain.
As of today, the country has recorded at least 86 deaths, 10 000 homes
destroyed , 200 000 people displaced and 10 000 people injured. The victims have been MDC supporters. The violence has
been clearly state sponsored and carried out in most cases by members of the
Zimbabwe National Army and ZANU PF militia. It is true that in some instances
our supporters have fought back, inmost cases in self-defence. Because of our
inability to access the rural areas, the above statistics may be understated. If this present scenario is compared to the period
towards the 29 March harmonised election, it is evident that the conditions on
the ground have fundamentally changed for the worse. The above statistics
clearly show that the electoral environment is not conducive to the holding of
a free and fair election. 3. THREATS
OF WAR Throughout its campaigns, ZANU PF has threatened that
there will be war if an MDC win in the presidential run-off is pronounced. Mr
Mugabe made it quite clear recently that power cannot be taken by a pen but by
a gun. War veterans aligned to him have articulated this position throughout
the country. These sentiments were echoed by senior ZANU PF officials including
the President’s wife when she clearly made the point that even if I was to win,
I was never to set my foot at the State House. Mr Mugabe also came out on
national television encouraging his party members to conduct a war-like
campaign. These kinds of threats coming as they did from senior ZANU PF
officials including the President of ZANU PF should certainly be taken
seriously. Indeed, these threats were taken seriously by our population with
the result that a free and fair election is something that cannot be dreamt of
under these conditions. 4. PARTICIPATION
OF THE UNIFORMED FORCES IN ZANU PF CAMPAIGNS It is common cause that the Zimbabwe National Army
through its senior officers has actively campaigned for ZANU PF and continues
to do so. This has been the position with the Zimbabwe Republic Police where
senior officials have publicly campaigned for ZANU PF. As if this was not
enough, the senior officers of the uniformed forces have forced junior officers
to vote for President Mugabe. On the 18th June 2008, my lawyers
wrote to you advising you of these developments and the fact that officers from
the police, prisons and the army were forced to apply for postal ballots. These
officers from the reports we have received have already voted in the presence
of a senior officer and were forced to vote for Mr Robert Mugabe. I attach
herewith a copy of my lawyers letter dated 18th June 2008 which
letter as usual was neither acknowledged nor responded to. In the
circumstances, one cannot talk of a free and fair election which can be
conducted on the 27th June 2008. 5. INTIMIDATION The level of intimidation which is currently being
subjected to our population particularly in the rural areas is alarming. People
are being forced to attend ZANU PF meetings during the night. People are being
told to record serial numbers on the ballot papers and disclose them to ZANU PF
official who are responsible for carrying out the intimidation. These incidents
have been brought to your attention but unfortunately nothing has been done by
your Commission by way of assuring the voters that their votes are secret as was
the case during the run up to the March harmonised elections. Infact, the voter
education campaign which was reasonably conducted during the run up to the
March 2008 harmonised election has not been repeated. You have simply allowed
ZANU PF, war veterans aligned to ZANU PF and Robert Mugabe to scare the people
by suggesting quite clearly that presidential run-off vote is between a choice
of war and Robert Mugabe. In my view, there can never be a free and fair
election under these circumstances. 6. NON-ACCESS
TO MEDIA The law clearly provides that a political party is
entitled to enjoy reasonable access to the media. My party booked space for its
advertisements with Zimpapers newspapers namely Herald, Sunday Mail, Chronicle,
Sunday News and the Manica Post which adverts were to commence on the 13th
June 2008. We were advised that our publications could not be published because
of the shortage of newsprint. What surprised us was that ZANU PF’s campaign
advertisements are being carried in these newspapers on a daily basis. We also
encountered problems with our electronic advertisements with the Zimbabwe
Broadcasting Holdings which effectively resulted in our failure to have access
to media. This is in sharp contrast with what occurred during the run up to the
March 2008 harmonised elections where we were given reasonable access to the
media. The importance of media advertisement in any election is quite critical
and it is for this reason that media access was specifically provided for in
our law. Without this right, there can be no free and fair elections. 7. THE
BANNING OF MDC RALLIES AND MEETINGS AND DISRUPTION OF MDC MEETINGS Since I launched my campaign for the presidential
run-off elections, I have encountered numerous difficulties occasioned by
agents of the State. I have been detained at police stations on numerous
occasions and thereby denied time to campaign. Our meetings and rallies have
been banned by the police. We have had to approach the High Court on no less
than 3 occasions for the court to intervene to enable us to go ahead with our
rallies. On the contrary, ZANU PF is being allowed to conduct its campaign
rallies even during the night. In the few cases that our rallies have been
allowed to go ahead pursuant to these Court Orders, ZANU PF supporters have
disrupted such rallies. On Sunday the 22nd June 2008, our star rally
in Harare, in respect of which a High Court Order had to be applied for the
rally to proceed but the rally was disrupted by ZANU PF supporters. Clearly it
is impossible for any political party to campaign let alone to exist without
being allowed to have access to the voting population. In these circumstances,
it cannot therefore be said that the environment presently obtaining is
conducive for the holding of a free and fair election. - DISENFRANCHISEMENT
OF VOTERS AND LACK OF ACCESS TO RURAL AREAS
As you are aware voting in the Presidential election
is constituency and ward based. In other words no person can vote outside his
or her constituency and ward. The massive displacement of people already
referred to herein (mainly from rural to urban areas) will result in the
disenfranchisement of these people. The confirmed reports we have received
confirm that there has been massive and systematic confiscation of national
identity documents of our supporters by ZANU PF militia and people claiming to
be war veterans. Until our supporters are able to replace these identity
documents (which cannot be done by Friday 27 June 2008) they are obviously not
going to be able to vote. Furthermore, more than two thousand of our polling
agents throughout the country have been arrested and kept in custody on flimsy
allegations. They will certainly be unable to vote. We have trained replacement
polling agents, but unfortunately we cannot possibly make arrangement for their
deployment in rural areas as it is common cause that the rural areas have
virtually been sealed off by ZANU PF militia, some members of the Zimbabwe
National Army and people claiming to be war veterans. We will therefore be
unable to deploy polling agents at more than 50 percent of the polling stations
in rural areas. Certainly there can be no pretence of holding a free and fair
election under these conditions. From the foregoing and indeed due to several other
reasons not necessarily covered in this letter, it is quite clear that no
proper election can be held under the present conditions. The present
conditions constitute a good example of conditions that vitiate the holding a
free and fair election. My party and I have been giving serious consideration
to this whole issue for some time, during which time it was hoped that a
semblance of a conducive environment may be created as has been the case with
other elections where we have participated under protest. The situation
obtaining now is very different from what has been experienced in this country
since independence. The violence,
intimidation, death, destruction of property is just too much for anyone to
dream of a free and fair election let alone expect our people to be able to
freely and independently express to free themselves. For this reason, my party
and I have resolved that we cannot be part to this flawed process. For the
avoidance of any doubt the presidential election question remains unresolved
until such time a free and fair election is held. We accordingly urge you to abide by your mandate
clearly spelt out in our constitution and in particular ensure that a proper
environment conducive for the holding of an efficient, free, fair, and
transparent election is held in the shortest period of time possible. It is
only in that kind of an election that my party and I will participate in. By copy of this letter ZANU PF’s candidate Mr Robert
Mugabe, the Chief Election Officer and your Commissioners are advised
accordingly. Yours sincerely Morgan Tsvangirai PRESIDENT, MOVEMENT FOR DEMOCRATIC CHANGE Cc: Mr R. G. Mugabe (ZANU PF Headquarters) Cc: ZEC Commissioners -- ZimOnline |