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IN THE LABOUR COURT, HARARE, JUNE 13**, 2005.
JUDGEMENT No. LC/H/121/2005.
CASE No.LC/H/16/2004.
In the matter between:
MUFARO STIG HOVE APPELLANT
Versus
ZIMBABWE ELECTRICITY SUPPLY AUTHORITY RESPONDENT
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Before The Honourable E Makamure, President
For the Appellant : Mr C Mudhara (Legal Practitioner)
For the Respondent: Mr Chakanyuka ( Legal Advisor)
MAKAMURE E :
The Appellant was dismissed from the Respondent's employ for contravening sections of the Respondent's Code of Conduct.
The charges are as follows:
7 (1) (g) (ii)
"Issuing without permission or authority, press statements or information concerning the affairs of the Authority, to the actual or potential prejudice of the Authority"
or
7 (1) (e) (viii)
"Conducting oneself or behaving in a manner which brings or is likely to bring the name of the Authority into disrepute or to tarnish the image of the Authority"
The charges arose following a letter which the Appellant wrote to The Financial Gazette on June 12, 2003 as follows:
APPEAL TO MANGWENGWENDE:
EDITOR: On behalf of the ZESA employees countrywide, may I humbly appeal to Simbarashe Mangwengwende, our father, to come to our rescue.
I am the Northern Area Workers' Committee Chairman and I know I speak for the whole Company from messenger to the most Senior Manager.
As the song goes: 'Every night I wake up crying,
Tears on my pillow,
Pain in my heart,
And you on my mind.'
Please assist urgently.
Mufaro Stig Hove ( radicalsoldier2003@yahoo.com )
The offences fall under Category 'D' of the Respondent's Code of Conduct and therefore dismissible.
The Appellant appealed internally without success.
He has lodged an appeal with this Court on the following grounds;
" The Appeals Committee did not consider the reasons for my Appeal to them ie;
# The Chairman Kasipo should have recused himself.
# The charge was mischievously brought by Management due to pressure from Mr Gata.
# Extenuating circumstances were not considered.."
It is common cause that the Appellant is the author of the article above.
The argument submitted in support of the grounds of appeal was to the effect that the article did not bring the name of the Authority into disrepute. It was argued that the article did not attack the Authority but appealed to Mangwengwende. The Appellant should therefore not be visited with dismissal as the penalty for his conduct.
The argument was advanced in view of the following:
# Firstly, the letter was authored during the course of a collective job action. The letter should therefore have been read in the context of a workforce which was disgruntled.
# Secondly, during the course of the said collective job action, some members of the ZESA workforce carried placards. The conduct of the Appellant was an act of solidarity with his colleagues.
# Thirdly, the Appellant was only expressing an opinion- which he is entitled to. He should therefore not be penalized for expressing his opinion.
# Fourthly, other ZESA employees who participated in the collective job action were subsequently pardoned. Such pardon ought to have been extended to the Appellant as well.
# Fifthly, in view of these reasons, the Appellant ought to have been charged with either a Category 'A' offence, namely
" Breach of secrecy or confidentiality which does not result in financial prejudice to the Authority or tarnish the image of the Authority"
or a Category 'C' offence
"for either insubordination or disorderly or objectionable behaviour."
It was also submitted on behalf of the Appellant that there was nothing wrong in the article to compel a person to arrive at the conclusion that the image of the Respondent was tarnished.
It was also submitted on behalf of the Appellant that the Appellant has an unblemished record of service of 14 years with the Respondent.
That being the case, a lighter sentence ought to have been imposed.
It was further submitted on behalf of the Appellant that the Chairman, Mr Kasipo, ought to have recused himself. This was because the Appellant did not see eye-to-eye with Kasipo. Despite the Appellant's protestations, Kasipo chaired the proceedings.
The Respondent's position, while noting the Appellant's disquiet with the Chairmanship of Kasipo , concluded that the Appellant got a fair Hearing even though Kasipo chaired the proceedings.
It was observed on behalf of the respondent as follows:
** "The Committee unanimously determined that there were no serious procedural irregularities to render the whole proceedings a nullity.
It was noted that Kasipo should have left the other members of the Committee to determine his fate.
He should not have voted.
Despite this anomaly, the Committee was satisfied that the Appellant was accorded a fair and unbiased Hearing and hence the findings of the Disciplinary Committee could not be faulted."
His fears were only speculative since Mr Kasipo had not confronted him.
Accordingly the submission could not be upheld."
There is a concession that allowing Kasipo to vote constituted an anomaly. Other members of the Committee ought to have decided on the propriety or otherwise of Kasipo's Chairmanship. The fact that Kasipo voted for himself to chair the proceedings can be interpreted as proof that Kasipo made sure that by participating in the voting process, he would chair the proceedings. His participation at that voting stage is a violation of the simple justice between man and man. Had Kasipo been excluded from the voting process, the result would have been seen to be independent of his influence. His participation can be interpreted as an indication of his influence.
This is what the Appellant objected to.
Respondent has not shown that Kasipo's participation was not prejudicial to the Appellant's case. (See Minerals Marketing Corporation v Mazvimavi 1995 (2) ZLR (S). It is trite that justice must not only be done but it must be seen to be done. In this case justice was not seen to have been done.
The Respondent's position on this issue is that there was no proof of bias by Kasipo against the Appellant.
I disagree.
As indicated earlier on the fact that Kasipo himself participated in the process to have him chair the proceedings is in itself proof that the voting process was not independent of his influence. The possibility of bias can therefore not be ruled out. Whether or not subsequent proceedings were without bias cannot be based on the beginning, which could be interpreted as being biased.
Going back to the article, the article in question was written during the course of a collective job action. In an earlier Application (**), this Court held that the Appellant has a right to express his opinion under the circumstances. The Respondent accepts the position that there is nothing wrong in expressing an opinion as long as no one's rights are violated in the process. The Respondent is of the view that the Appellant's conduct caused the actual or potential prejudice to respondent or that the article put its name into disrepute. Consequently, the respondent is of the view that its name was tarnished as a result of the article.
It is however not clear to this Court how exactly the article put the Respondent's name into disrepute.
It is clear that the article was published in a magazine whose readership is wide. The letter was appealing to one Mangwengwende.
The article does not articulate what wrong ZESA did.
What the article does is to ask the individual in question (Mangwengwende) to dialogue so that whatever the writer wants to be rescued from could be discussed.
Does this "plea" have the effect of putting the name of ZESA into disrepute?
I think not.
Had the Appellant made specific allegations against the Authority, that would have certainly caused the readers to ask questions about ZESA with the likehood of either tarnishing the good name of ZESA or putting ZESA's good name into disrepute.
The Appellant was simply expressing an opinion.
He wrote to the paper.
If writing to the press is a prohibited conduct; then such a prohibition is in my view a violation of the Appellant's Constitutional Rights.
Further, if the simple act of writing to the paper without making particular allegations is a punishable conduct; then such punishment appears far-fetched.
It is not disputed that the Appellant had before this incident worked for the Respondent for 14 years with a clean Record.
In considering the Appellant's case, the Respondent was of the view that the Appellant was not remorseful.
The record on the other hand shows that the Appellant apologized for his conduct.
In the Record of Proceedings, the Appeals Committee on page 12 of its record noted:
" He (the Appellant) wanted to apologize to the Company called ZESA………He regretted writing to the Press….."
Yet on page 11 of its Record, the Committee commented:
"The Appellant did not show any remorse during the Hearing although he admitted to wrong-
doing."
The fact that the Appellant regretted his conduct is proof of his remorse.
In view of the above, I find merit in the Grounds of Appeal.
Section 12B (4) of the LABOUR ACT CHAPTER 28: 01 empowers the LABOUR COURT when the fairness of the dismissal of an employee is in issue:
"To consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal….."
Under the present circumstances, charging the Appellant with a dismissable offence was harsh!
If the Appellant had erred at all, a lesser charge as defined in the Respondent's Code of Conduct would have sufficed.
HOWEVER, this Court is of the view that the Appellant's conduct is not blameworthy.
Thus even having him charged with a lesser offence is in my view not consistent with fairness.
In the circumstances, the Appeal succeeds.
It is accordingly ordered that the Appeal be and is hereby granted with costs.
The Respondent be and is hereby ordered to re-instate the Appellant with no loss of salary and benefits with effect from the date of dismissal.
In the event that re-instatement is no longer an option, the Respondent be and is hereby ordered to pay the Appellant damages in lieu of re-instatement.
Parties may agree to the quantum of damages or upon failure to agree either party may approach this Court for quantification.
(SIGNED……….E MAKAMURE)
Chitapi and Associates (Legal Practitioners for the Applicant).
Mr Chakanyuka ( Legal Advisor for the Respondent.)
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Please also read "The Herald" of Saturday, 21st Jan, 2006 (Court News).
It was on the 'net when I sent this mail of joy!
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21st January,2006.
Hi fellow citizens and friends,
Please find below the "message of joy" received from The Labour Court yesterday (20th Jan 2006)
I typed it myself so forgive me for any errors you may come across.
Where you see stars(**), it means there are notes I have written at the end of the Judgement.
Please send your Congratulatory SMS messages to
# 091815762…my wife for standing beside me for 27 difficult months.
# 011422965….Mr Munjoma (Union Sec General) for accepting me as their casualty.
# 011607301….To Eng Simbarashe Mangwengwende for giving me spiritual and moral support when I felt like ending my life.
# 011424284….Mr Mudhara, the lawyer of Chitapi and Associates, who calmly presented The Heads of Argument on my behalf.
# 091343485….To a friend who supported me financially but who does not want his name mentioned.
Thanks to you ALL for being available to hear me "thinking aloud."
The Judges (who are seriously over-worked and grossly underpaid) also deserve our thanks!
Rev M S Hove….THE HAPPY RADICAL SOLDIER!
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 Stig Hove wins case against ZESAhttp://www.thezimbabwean.co.uk/viewinfo.cfm?id=685 HARARE - Mufare Stig Hove has won his lengthy legal battle against Zesa, which fired him for writing a letter to a newspaper seeking the return of his former boss. The Labour Court last week ordered the parastatal to reinstate Hove without any loss of pay or benefits after it held that his dismissal was improper, since he had a right to express his views. Hove was fired after writing a letter published in the Financial Gazette, appealing to former Zesa chief executive, Simbarashe Mangwengwende, to come to the rescue of the workers. "If writing to the Press is a prohibited conduct, then such a prohibition is, in my view, a violation of the appellant's constitutional rights," said the judgement. The court said if it was no longer possible for Zesa Holdings to reinstate Mr Hove, then both should agree on a suitable amount to damages to be awarded. - Own correspondent @@@@@@@@@@@@@@@@@@@@@@@@@@@@@ kuthula matshazi : kuthulamatshazi@yahoo.co.uk Congratulations Rufaro on winning the case. It is interesting that you were victimised for free speech. I hope you are the person who knows the importance of free speech and the critical importance to safeguard it. Make sure you impart your experience in this forum and encourage diversity of voices. Who else other than you can champion freedom of speech? Congratulations and wish all the best in your future endeavours. Best, Kuthula @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@ Zesa to re-engage employee
Saturday, January 21, 2006 http://www.herald.co.zw/inside.aspx?sectid=1788&cat=1 Court Reporter ZESA fired a worker for writing a letter to a newspaper seeking the return of his former boss, but yesterday the Labour Court told Zesa to reinstate him, saying his rights to express opinions had been violated. Yesterday, the court ordered Zesa to reinstate Mr Mufaro Stig Hove without any loss of pay or benefits after it held that Mr Hove's dismissal was improper, since he had a right to express his views. If Zesa's code of conduct prevented employees from criticising Zesa, then this would be a violation of constitutional rights. Mr Hove was fired after writing a letter published in the Financial Gazette, appealing to former Zesa chief executive, Mr Simbarashe Mangwengwende to come to the rescue of the workers. In the judgment, the court found that Mr Hove had the right to express his opinions. Zesa Holdings had dismissed him arguing that his letter had put its name into disrepute and had the likelihood of causing financial prejudice. The court, however, found that though it was common cause that Mr Hove had written the letter, Zesa Holdings had failed to prove to the court how exactly the letter had put the company's name into disrepute. "The appellant had a right to express his opinion under the circumstances. It is, however, not clear to this court how exactly the article put the respondent's name into disrepute. It was also the court's finding that if the Zesa code of conduct prohibited such expression of opinions, then it violated the employees' constitutional rights. "If writing to the Press is a prohibited conduct, then such a prohibition is in my view, a violation appellant's constitutional rights." The court said if it was no longer possible for Zesa Holdings to reinstate Mr Hove, then both should agree on a suitable amount to damages to be awarded. @@@@@@@@@@@@@@@@@@@@@@@@@@@@ I'm still CEO of ZESA http://www.thezimbabwean.co.uk/viewinfo.cfm?id=831 EDITOR - In your article "Stig Hove wins case against Zesa" published on 26th January2006 you refer to me as "former Zesa chief executive". Please note that I am still the lawful chief executive of Zesa. Although the day to day running of the organisation is currently under the Chairman of the Board (operating under the title "Executive Chairman") the lawfulness of that is a matter before the High Court waiting for a judgment by the Honourable Justice Hlatshwayo. The case was heard on 8th October 2003 and judgment has been reserved since then. Pending that judgment I remain an employee of Zesa with all my conditions of service as chief executive. Recent attempts By Zesa to deny me my salary and benefits have been ruled unlawful by the Labour Court and that judgment has been upheld by the High Court and the Supreme Court. Eng Simbarashe E. Mangwengwende, Chief Executive, Zesa, Harare |
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PLEASE ALSO CHECK "ZESA SEEKS TO RE-EMPLOY FORMER WORKERS!"
by Tambanavo Chamanyawi (chamanyawi@gmail.com) The all-time powerful and popular Movement for Democratic Change (MDC) shall be joining the inclusive government with an ambitious resolve to deliver and turn around the moribund Zimbabwe government. And also to put paid to their claim that they can run the country better than Zanu PF. The party would try to excel in the ministries allocated to them. Buoyed by the undisputed proletariat support, MDC Chief, Morgan Tsvangirai shall be at the helm the government soon, with the intention to redeem Zimbabweans from all the economic and political ills visited upon them by the 29 year old administration of Robert Mugabe's Zanu PF. A huge gloomy spot is however threatening to shutter delivery by the inclusive government. There are very limited rays of hope at the end of Tsvangirai's tunnel. Although the MDC boss is geared to exhibit excellence, but a heavily depleted source of qualified human resources is poised to cut his success story short. Since its formation MDC dedicated all energy on the political front at the expense of grooming technocrats, who are much needed now to run the administrative and implementation arms of the government. Few known MDC technocrats were sucked into Parliament and Senate, reducing them into point scoring politicians. Unlike other political parties, MDC did very little effort (if there was any) to prepare itself to run the country. The party neither came with scholarship schemes to boost its human resource base nor identified nor nurtured individuals for key strategic portfolios in government. During the Chimurenga Struggle, Zanu PF's Dzingai Mutumbuka led an ambitious scholarship scheme which saw most of the young activists sent to universities across the world. The majority of the scholarship beneficiaries got university education in Sierra Leone, UK, Uganda's Makerere University, Nigeria's Ibandan University and South Africa's Fort Hare University. Zanu PF's permanent secretaries are an erudite lot that spent time in universities. Their acquaintance with how things should be run is cushioning the political plunders being committed by their political masters. The same can be said about ANC's long fight against the apartheid government. Most of the ANC cadres occupying key government positions today were groomed during the liberation struggle in preparation for running the country. This includes former president of South Africa Thabo Mbeki. The ANC's director generals serving in government departments are academically affluent. The same cannot be said about MDC, a party which came into life10 years ago with all indications that it would be in government soon. The party is still not well equipped in terms of human skills to take us out of 'Egypt' just as it was 10 years ago. Can anyone think of anybody from the MDC who would be appointed minister of Finance or, the Reserve Bank Governor of Zimbabwe? Roy Bennet? What does he know about monetary issues? For all his life, Pachedu, as he is affectionately known by his colleagues, has been running his family farm in Chamanimani. The only veneer he has about finance relates to the current Treasurer position he occupies in MDC. Apart from that there is completely nothing, zero, zilch and nil. Of course people can always learn through the passage of time, but does MDC have thesumptuousness of time on their side? Then there is Tapiwa Mashakada, a former trade union economist. Though well read, but the man has been a sloganeering populist for too long. Eddy Cross? May-be. What about Agriculture, Tourism, Media related departments and Industry and Commerce? Are there individuals we can think of who MDC can entrust with running the above named portfolios. This is a very tricky period because MDC does not have the luxury of trial and error, like what Zanu PF had in 1980, but has to deliver forthwith. Their level of delivery would largely depend on the quality of their human resources. If they fail to deliver immediately they can easily be rubbished as worse than Zanu PF. We are entering an interesting period in the history of Zimbabwe. Some appointments will be shocking. Blunders are sure to manifest right in the nerve-centre of MDC's delivery machinery. An attention-grabbing scenario is likely to emerge. MDC might find itself re-cycling the same senior personnel who served in the Zanu PF government. There is also a very likelihood that the government might also out source human resources, like what Zanu PF did in the 1980s. This is not to say we have run out of qualified personnel, but some of the people who are eligible might not be prepared to abandon their current occupations to come and serve in a shaky inclusive government which can collapse at anytime. Also some of the skilled characters might not be MDC-enough to be entrusted with sensitive and senior government posts in ministries run by MDC. What is there to gain anywhere in the civil service of the inclusive government? Others may ask. Can anybody imagine that from next week, Tsvangirai would be surrounded by members CIO's branch five, as his official body-guards? The same can be said about Thokozane Khupe and Authur Mutambara, Tsvangirai's two deputies. Yes! It's true. Imagine! Why such a frightening arrangement, which seem to confirm that MDC will be gulped by Zanu PF as what happened to PF Zanu in 1987? Is it because MDC does not have trained body-guards or intelligence officers? MDC should also deploy some of its cadres into the media industry to cushion it from blistering and stinging media headlines. One can however say, the media should be out of bounds for politicians and political parties. A sound academic argument, I suppose, but which have always eluded Zimbabwe. Most if not all editors in Zimbabwe, running government papers are known Zanu PF pharisees, who never pretended to be impartial. These include, the late Charles Chikerema of The Herald, Tommy Sithole of The Herald, Henry Muradzikwa of Ziana and later ZBH where hwas disgracefully kicked out by his Zanu PF colleagues, Stephen Mpofu of the Chronicle. Even the celebrated Geoff Nyarota was deployed from the President Cannan Banana's office to Manica Post before being transferred to Chronicle in Bulawayo, where he roared into fame after publishing the Willowgate scandal stories . The question now is, does MDC have this kind of human resources? May-be Nyarota is available again to play this part for MDC. Coupled with obvious lack of experience, expertise and patronage MDC might soon find itself answering the identical accusations being currently thrown at Zanu PF. Obvious services delivery complaints and not abduction and murder accusations. Hundreds of authentic cadres who took 'bullets' on behalf of MDC are perceptibly not prepared to be left out in the transitional government on the basis of lack of skills. The respected MDC brand is destined to come out of the transitional government heavily tainted and compromised to give Zanu PF the envisaged final fatal knock-out punch in the next elections. Let's wait and record the history of Zimbabwe as it unfolds right in our view. PLEASE VISIT ALSO: "THE NGO SHARKS THAT FEED ON THE ZIM CRISIS!" by CHAMANYAWI!"ARTHUR MUTAMBARA, THE WORLD'S LUCKIEST POLITICIAN!"
The Zimbabwe main opposition, Movement for Democratic Change (MDC) has entered into agreement for Unity government with Robert Mugabe's ZANU PF regime. The Unity government is going to be formed from 11 to 13 February 2008. While the MDC and ZANU PF discuss about UNITY government thousands of human rights activists, political dissenters, and MDC supporters are in jails for exercising their freedom of speech. Hundreds are still being tortured and murdered by Police, Soldiers, CIO and War Veterans. If the Unity government works, good luck MDC. Many Zimbabweans consider unity government as a fraud and betrayal. It means the MDC has capitulated. At grassroots level Zimbabweans don't want unity government or that corrupt, murderous ZANU PF official continue to rule. Thousands of Zimbabweans have been tortured and murdered because of their support to the MDC. What is imperatively needed in Zimbabwe is removal of both Mugabe and his illegitimate ZANU PF government. ZANU PF is a criminal enterprise responsible for massive corruption, genocide and deliberate starvation of Zimbabweans. At this juncture Zimbabwe needs justice. Justice means protection of suffering Zimbabweans and punishment of ZANU PF officials for corruption, genocide, torture and murder of innocent people. ZANU PF militias and the so-called War Veterans must be brought before the courts for widespread murder, rape, mutilating, torture, robbing, theft, looting and vandalism. Unity government will save to protect ZANU PF criminals. ZANU PF officials should be held accountable for all these crimes against humanity which started as early as 1983. ZANU PF was corrupt, murderous and oppressive from its beginning. Unity government if it succeeds it means betrayal of the Zimbabweans by MDC politicians. Without justice and elimination of corruption Zimbabwe will not heal. ZANU PF politicians are corrupt and cannot be trusted with public funds. Even in unity with MDC they will still continue with the culture of corruption, bureaucracy and human rights abuse. The MDC has been telling Zimbabweans and the world that ZANU PF is guilty of corruption and crimes against humanity. Now they want to join these bunches of criminals and corrupt official in this called unity government. Surely millions of Zimbabweans who have fled persecutions, murder, torture and oppression have no hope of returning home in the near future. Zimbabwe unity government will be illegitimate and a mockery of justice. The European Union, America, Britain and other countries must refuse to recognise such travesty of justice. Any deal that leaves Mugabe in power or ZANU PF officials in control must not be recognised. Mugabe has lost presidential elections. By fraud, manipulation, propaganda and oppression he is still in power. Calls to the UN Security Council should continue. The Zimbabwean humanitarian crisis must not be left in the hands of SADC or African Union (AU). Majority of SADC and AU leaders are dictators and corrupt to their own people. President Yoweri Museveni (Uganda) has labelled the AU a Trade Union of criminals. These regional organisations and the ruling ANC government in South Africa will use every means to prevent the government that won elections to come to power in Zimbabwe. ANC is trying all dirty tricks to keep Mugabe'ZANU PF in power. There is so much suffering in Zimbabwe. Thousands of people are dying every week in Zimbabwe. Now cholera has killed 3000. Please help us to stop this massive suffering in Zimbabwe. Put Zimbabwe on your prayer list. Write to your political leaders encouraging them to support us in our quest for freedom, liberation, and human rights. Collen Makumbirofa
Foundation of Reason & Justicewww.zimbabwehope.orghttp://forjustice.atspace.orgwww.zimjustice.blogspot.comEmail: makumbirofa@gmail.com
Until all the African States do something to stop the genocide im Zimbabwe and look to the future of all the African Countries and the entire continent they should not figure in world class events. The World Cup cannot be held in South Africa unless they stop negotiating with terrorists and get Mugabe out NOW! SueJ - UK
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 The withdrawal this week of the Movement for Democratic Change (MDC) of Zimbabwe, from the run-off Presidential Elections, that is due to take place today, Friday 27 June, is an indication of the depth of the political crisis in that country. Yet it provides an opportunity for ZANU (PF) the MDC and other parties, to commence a dialogue to arrive at a workable political solution for the common good of all Zimbabweans. Since 2001 the ANC and other political parties in this region have witnessed the tragic socio economic decline of Zimbabwe. The political impasse in that country today compounds the negative consequences of an economy that appears to have gone into terminal decline and that has already resulted in massive migration to neighbouring states. The SADC region, made up of developing countries all of whom are struggling for the economic upliftment of their peoples after centuries of colonial domination, can ill afford the instability occasioned by this turn of events. It has always been and continues to be the view of our movement that the challenges facing Zimbabwe can only be solved by the Zimbabweans themselves. Nothing that has happened in the recent months has persuaded us to revise that view. A lasting solution has to be led by the Zimbabweans and any attempts by outside players to impose regime change will merely deepen the crisis. Zimbabwe, like many other African countries, was reduced to the status of a colony during the latter part of the 19th century. A column of imperialist adventurers, led by the notorious Cecil John Rhodes, invaded the territory, seized the land from its people and annexed it to the British Empire. To add insult to this injury the British colonial authorities even had the temerity to re-name the country "Rhodesia". Land dispossession accelerated to the extent that when Zimbabwe attained independence the White minority, who never exceeded 2% of the population, owned and controlled 70% of the best agricultural land. Colonialism in Zimbabwe, as in the rest of Africa, was a system of arbitrary, capricious power exercised by a distant colonial office and delegated to local White settlers who wielded it as agents of the imperial power. As in all other colonies, the African people in Zimbabwe had no rights. They had no voice in how they were governed. Africans were subjected to a host of controls - that determined where they could live, where they could work, when they could work, even for whom they could work. All social goods and services in the country were racially apportioned to the advantage of the White minority who were incrementally granted powers to govern the colony. By the 1960s the White minority exercised sufficient political power in the colony to declare independence from Britain unilaterally in 1965. The political programme of the national liberation movement in Zimbabwe consequently centred on the right of national self-determination to be attained through democratic elections in which all adult citizens of the country would have the untrammelled right to elect the government of their choice. Restoration of the land seized during colonialism to the indigenous people was a central plank of that programme as well. It was a shared objective of all the liberation movements in this region of Africa to give birth to democratic governments that institutionalised the civil liberties that underpin the Universal Declaration of Human Rights in their respective countries. In addition to the principle of government based on the will of the governed, these include freedom of opinion; freedom of speech; freedom of movement; freedom from arbitrary arrest, freedom of assembly and freedom of association. The end of colonialism envisaged the abolition of all privileges and disabilities based on race, religious affiliation or gender. To give substance to these freedoms, the national liberation movements of this region also strove for a universal system of education; a universal health care system; full rights for all workers on the land or in the cities; as well as equality before the law. No colonial power in Africa, least of all Britain in its colony of "Rhodesia", ever demonstrated any respect for these principles. It was the people of Zimbabwe, under the leadership of the Patriotic Front , who waged a struggle to win these rights and freedoms.The right to govern themselves and regularly to choose their own government was earned through sacrifices and struggles often eliciting the loss of life. No one, no government , no political party no political leader has the right to abridge or subvert these rights. We are, consequently, deeply dismayed by the actions of the government of Zimbabwe which is riding roughshod over the hardwon democratic rights of the people of that country. As democrats , the ANC cannot be indifferent to the flagrant violation of every principle of democratic governance. The ANC is very mindful of the obligations Britain assumed in relation to Zimbabwe at the Lancaster House Talks. Chief amongst these was resolution of the Land Question, i.e. undoing the consequences of well nigh 100 years of British colonial domination. A large measure of responsibility for the current crisis is attributable to the ex-colonial power because it has reneged on that undertaking. In our efforts to assist Zimbabweans resolve their problems the ANC has consistently supported the efforts of the South African government and the SADC region. After the SADC Summit appointed President Mbeki to act as mediator amongst the parties in Zimbabwe, he has enjoyed, and continue to enjoy, the ANC's unstinting support. We were consequently very pleased when, owing to his mediation, a relatively peaceful and free election was held on 29 March 2008. We were greatly distressed by the incidents of violence during both the run-up and on the election day itself. The unseemly delay in announcing the outcome of the Presidential elections of April caused great anxiety in Zimbabwe and in the region. It was for that reason that the ANC called for their immediate release on 15th April. The Extra-Ordinary SADC Summit, held on 13th April 2008, in Lusaka, Zambia had held the same view. In its Communiqué the SADC Summit of Heads of Sate and Government noted that since there had been no outright winner of the Presidential poll, a run-off was expected to determine the winner. While the ANC was sceptical of the feasibility of a run-off, we deferred to the judgement of the SADC leadership and that of the political parties in Zimbabwe and lent our support to the process. However, compelling evidence of violence, intimidation and outright terror; the studied harassment of the leadership of the MDC, including its Presidential candidate, by the security organs of the Zimbabwean government; the arrest and detention of the Secretary-General of the MDC; the banning of MDC public meetings; and denial of access to the Zimbabwe Broadcasting Corporation, all have convinced us that free and fair elections are not possible in the political environment prevalent in Zimbabwe today. The ANC believes that we have an obligation to contribute towards the search for a solution in Zimbabwe. This is a view informed by long-standing fraternal relations amongst the liberation movements of our region of Africa. We are confident that a solution consistent with our shared commitment to human dignity, human rights, the rule of law and the freedoms we all fought for, is attainable. THE WAY FORWARD The ugly incidents and scenes that have been visited on the people of Zimbabwe persuade us that a run-off Presidential election offers no solution to Zimbabwe's crisis. In a society that is already highly polarised, a run-off election will only serve to widen the divisions. The very legitimacy of the run-off has already been severely compromised by the actions of both ZANU (PF) militants and those of state officials who do not even conceal their partiality in favour of the governing party. There can be no solution except through a dialogue in earnest amongst all the political players in Zimbabwe, involving the people of that country. The ANC will play its role, within the framework of the SADC mandate, in searching for a solution that will bring an end to the suffering of the Zimbabwean people. We have noted, with grave concern, the statements of the Zimbabwean government to the effect that the run-off elections will proceed as planned. We urge the government of Zimbabwe to apply its mind, dispassionately, to the situation at hand in its country and our region. We appeal to the government to take up the challenge of finding a negotiated settlement to the current impasse. We wish the MDC, ZANU (PF) and all the other parties in Zimbabwe the moral courage, strength and determination to urgently seek a viable solution to the profound problems facing their country. ----------------------------------------------------------------------- BRIAN BUNTING An embodiment of non-racialism ANC and SACP stalwart Brian Bunting, who passed away at his home in Rondebosch, Cape Town on 18 June 2008, will be laid to rest in Cape Town tomorrow, 28 June 2008. Born in Johannesburg in 1920, Brian was the son of Sidney Percival Bunting, a founder and key architect of the Communist Party in South Africa. Brian Bunting graduated from the University of the Witwatersrand in 1939. He worked as a journalist on the Rand Daily Mail and the Sunday Times. He served in North Africa during World War II and then became assistant editor and later chief editor of The Guardian, and, after it was banned, its successor publications, Advance, Clarion, Peoples' World and New Age. As one publication was banned by the apartheid regime, so a new one was launched. Bunting was also assistant national secretary of the Springbok Legion and editor of its journal, Fighting Talk. Bunting was a life-long communist party member. As a newly elected member of the party's Johannesburg district committee he was arrested in 1946 following the African mine workers strike, but charges were later dropped. From November 1952 to October 1953 he was elected as a Natives' representative in the House of Assembly from the Cape Western district. But he was expelled from Parliament because of his Communist Party affiliations. He was banned in 1952, detained in 1960, and placed under house arrest in 1963. Shortly afterwards he went into exile. Based in London together with his late wife Sonia, Brian played a leading role in the regrouping of the exiled movement and in building anti-apartheid international solidarity. For many years he edited the SACP's official organ, The African Communist. The Buntings returned to South Africa in the early 1990s and Brian had the pleasure of being elected as an ANC MP in 1994, returning to the very corridors from which he had been unceremoniously expelled by the apartheid regime some forty years earlier. Brian remained active in his local SACP branch throughout the 1990s and into the last years and he also served on the SACP's central committee until mid-2007 when travelling became increasingly difficult. Bunting's publications include The Rise of the South African Reich, and Moses Kotane, South African Revolutionary. Along with other outstanding freedom figures like Govan Mbeki and Ruth First, Brian Bunting belonged to a generation that bequeathed to our country a major tradition of investigative and radical journalism. A gentle personality, a lucid thinker, deeply loyal to his fellow comrades and organisations, Brian Bunting embodied the best non-racial traditions of our struggle. ----------------------------------------------------------------------- This issue of ANC Today is available from the ANC web site at: http://www.anc.org.za/ancdocs/anctoday/2008/at25.htm To receive ANC Today free of charge by e-mail each week go to: http://www.anc.org.za/ancdocs/anctoday/subscribe.html To unsubscribe yourself from the ANC Today mailing list go to: http://lists.anc.org.za/mailman/listinfo/anctoday --------------------------------------------------------------------- anctoday mailing list http://lists.anc.org.za/mailman/listinfo/anctoday -- No virus found in this incoming message. Checked by AVG. Version: 7.5.524 / Virus Database: 270.4.1/1521 - Release Date: 6/26/2008 11:20 AM
http://www.smh.com.au/articles/2008/06/26/1214073398754.html Australians in Zimbabwe have been urged to leave under an upgraded travel advice by the Government which warns the political crisis may escalate in the coming weeks. The advice, issued today by the Department of Foreign Affairs and Trade, also says Australians should not enter the country because the volatile security situation could quickly worsen. A department spokeswoman said there are 841 registered Australians in Zimbabwe, including 602 in Harare and 77 in Bulawayo. The Australian High Commission is maintaining regular contact with them. "We strongly advise you not to travel to Zimbabwe at this time due to the high level of election-related violence in many areas, the high level of criminal activity, the absence of the rule of law, and deteriorating economic conditions which could lead to civil unrest at any time," the advice says. "This includes visits to national parks and Victoria Falls. "If you are in Zimbabwe and concerned for your safety, you should consider leaving if it is safe to do so." The advice, which lifts Zimbabwe into the most dangerous category of country alongside eight other states such as Iraq and Afghanistan, says any Australians who do go to Zimbabwe should register their travel. "The security situation could deteriorate quickly and without warning, and Australians could be caught up in violence directed at others," the advice says. "In these circumstances, departure options may be severely limited... The ongoing political and economic crisis has made the situation very volatile, in both rural and urban areas." For further information: http://www.smartraveller.gov.au/zw-cgi/view/Advice/Zimbabwe
Ex http://app.e2ma.net/app/view:CampaignPublic/id:21547.1161576113/rid:4c5baa9387944d9c784eb58f73a37fe8 | | Attention: Honourable Justice Chiweshe The Chairman Zimbabwe Electoral Commission 7th Floor, Century House HARARE Dear Sir, Re: PRESIDENTIAL RUN-OFF ELECTION SCHEDULED FOR THE 27TH 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 kind 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 meeting 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 to proceed with such 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% 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 |
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ZIMBABWE REV YOUTHS TO CLOSE ZIM EMBASSY, PRETORIA (27/03/2008)
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