77. As regards Article 13 of the Charter, the communication recalls the importance of the right to political participation and insists, in the wake of the Resolution on Electoral Processes and th Participatory Governance adopted by the Commission at its 19 Ordinary Session, that: a. “Elections are the only means by which the people can elect democratically the government of their choice in conformity to the African Charter on Human and Peoples’ Rights”. 78. That position, it is alleged, was confirmed by the Commission in Constitutional Rights Project & Another v Nigeria , where the Commission found that: “To participate freely in government entails, among other things, the right to vote for the representative of one’s choice. An inevitable corollary of this right is that the results of the free expression of the will of the voters are respected; otherwise, the right to vote freely is meaningless. In the light of this, the annulment of the election results, which reflected the free choice of voters, is in violation of Article 13(1)” 79. The Complainants further submit that the right to freely participate in government is also rendered meaningless if the judiciary fails to decide expeditiously on the electoral disputes brought before it, since that allow candidates whose elections are contested to sit in Parliament while the petitions are still lis pendens. The Complainants quote the Inter-American Commission on Human Rights according to which: “the close relationship between representative democracy as a form of government and the exercise of the political rights so defined, also presupposes the exercise of other fundamental rights… the concept of representative democracy is based on the principle that it is the people who are the nominal holders of political sovereignty and that, in the exercise of that sovereignty, elects its representatives, moreover, are elected by the citizens to apply certain political measures, which at the same time implies the prior existence of an ample political debate on the nature of the policies applied – freedom of expression – between organised political groups – freedom of assembly. At the same time, if these rights and freedoms are exercised, there must be juridical and institutional systems in which laws outweigh the will of leaders and in which some institutions exercise control over others for the sake of guaranteeing the integrity of the expression of the peoples’ will – rule of law. … Indeed any mention of the right to vote and to be elected would be mere rhetoric if unaccompanied by a precisely 6 described set of characteristics that the elections are required to meet” 80. The Complainants pray the African Commission to follow the jurisprudence of the Inter American Commission and to find the Respondent State to be in violation of 13(1) of the Charter. 81. Regarding Article 26 of the Charter, the authors of the communication recalls the comment made th by the Commission in its 9 Annual Report, where it declared that: “Article 26 of the African Charter reiterates the right enshrined in Article 7 but is even more explicit about State Parties’ obligations to ‘guarantee the independence of the Courts and allow the establishment and improvement of appropriate national institutions entrusted with the promotion and the protection of the rights and freedoms guaranteed by the present Charter’. While Article 7 focuses on the individual’s right to be heard, Article 26speaks of the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of courts which have traditionally been the bastion of protection of the individual’s rights against the abuses of State Power”. 82. The Complainants are of the view that trials conducted in accordance with the principles of due process of the law, and the conclusion of such trials within a reasonable time, inter alia, are essential tenets of a properly functioning judiciary. It is alleged that the failure by the Respondent to decide on the election petitions within a reasonable time contravenes articles 13(1) and 26 of the Charter. Respondent State’s submissions on the merits 83. The Respondent State submitted that both parties to the election petitions filed in the Zimbabwean courts were afforded equal protection of the law evidenced by a reference to a number of decided cases. The State denies that the Complainants were discriminated against on the basis of political opinions expressed in the petitions. 84. The Respondent State submits further that in Sibangani Mlanda vs. Eleck Mkandla HC 8228/00 , the petitioner was a candidate for the Movement for Democratic Change Party (MDC) in the general election of June 24 & 25, 2000. The Respondent who was the candidate for Zimbabwe Africa National