Elections https://old.zimlii.org/taxonomy/term/9438/all en Madzimure & Others v Senate President & Others AND Holland & Others v Senate President & Others (CCZ 8/19 , Constitutional Application No. CCZ 19/15, Constitutional Application No.CCZ 20/15) [2019] ZWCC 08 (14 April 2015); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2015/8-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. CCZ 8/19</strong></p> <p><strong>Constitutional Application Nos. CCZ 19/15 and CCZ 20/15</strong></p> <p> </p> <p><strong>REPORTABLE (8)</strong>         </p> <p> </p> <p><strong>   </strong></p> <p> </p> <p><strong>(A) </strong></p> <p><strong>(1)   WILLIAS    MADZIMURE   (2)    SAMUEL    SIPEPA    NKOMO</strong></p> <p><strong>(3)     LUCIA     MATIBENGA     (4)     EVELYN     MASAITI     (5)     PAUL     MADZORE     (6)     REGGIE     MOYO     </strong></p> <p><strong>(7)     SOLOMON     MADZORE     (8)     BEKITHEMBA     NYATHI</strong></p> <p><strong>(9)    MOSES     MANYENGAVANA     (10)     ALBERT     MHLANGA</strong></p> <p><strong>(11)    ROSELENE    NKOMO     (12)     SETTLEMENT    CHIKWINYA </strong></p> <p><strong>(13)     JUDITH     MUZHAVAZHI     (14)     GORDEN     MOYO</strong></p> <p><strong>(15)     GLADYS     MATHE     (16)     TENDAI     BITI </strong></p> <p><strong>(17)     MOVEMENT     FOR     DEMOCRATIC     CHANGE</strong></p> <p> </p> <p><strong>v</strong></p> <p> </p> <p><strong>(1)     THE     PRESIDENT     OF     THE     SENATE </strong></p> <p><strong>(2)     THE    SPEAKER    OF     THE    NATIONAL    ASSEMBLY</strong></p> <p><strong>(3)     THE     PRESIDENT     OF     ZIMBABWE </strong></p> <p><strong>(4)    CHAIRPERSON,    ZIMBABWE    ELECTORAL    COMMISSION</strong></p> <p><strong> (5)     THE     ZIMBABWE     ELECTORAL     COMMISSION</strong></p> <p> </p> <p><strong>(B)</strong></p> <p><strong>(1)     SEKAI     HOLLAND     (2)     RORANA     MUCHIHWA </strong></p> <p><strong>(3)     WATCHY     SIBANDA     (4)     PATRICK     CHITAKA </strong></p> <p><strong>(5)     MOVEMENT     FOR     DEMOCRATIC     CHANGE</strong></p> <p> </p> <p><strong>v</strong></p> <p> </p> <p><strong>(1)     THE     PRESIDENT     OF     THE     SENATE </strong></p> <p><strong>(2)     THE    SPEAKER    OF     THE    NATIONAL    ASSEMBLY (3)     THE     PRESIDENT     OF     ZIMBABWE </strong></p> <p><strong>(4)    CHAIRPERSON,   ZIMBABWE    ELECTORAL    COMMISSION</strong></p> <p><strong> (5)     THE     ZIMBABWE     ELECTORAL     COMMISSION</strong></p> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,</strong></p> <p><strong>GWAUNZA JCC, GARWE JCC, GOWORA JCC,</strong></p> <p><strong>HLATSHWAYO JCC, PATEL JCC &amp; GUVAVA JCC</strong></p> <p><strong>HARARE APRIL 14, 2015</strong></p> <p> </p> <p><em>L Madhuku</em>, with him <em>L Uriri</em>, for the applicants</p> <p><em>S J C Chihambakwe</em>, with <em>A Demo,</em> for the first and second respondents in applications CCZ 19/15 and CCZ 20/15</p> <p> </p> <p><em>P Machaya</em>, for the third respondent</p> <p><em>T Kanengoni</em>, for the fourth and fifth respondents</p> <p> </p> <p><strong>MALABA DCJ:</strong>  After hearing submissions by counsel in the two applications, the Court made the following order:</p> <p>“After considering the papers filed in this matter and hearing submissions by counsel, the Court unanimously concludes that both applications have no merit and are hereby dismissed with costs on the ordinary scale.”</p> <p> </p> <p>The following are the reasons for the order.</p> <p>Two constitutional applications, No. CCZ 19/15 and No. CCZ 20/15, were filed with the Registrar of the Constitutional Court (“the Court”) on different dates. Each application sought an order setting aside the announcement by the Speaker of the National Assembly (“the Speaker”) and the President of the Senate that the applicants’ seats in Parliament had become vacant because the applicants had ceased to belong to the political party of which they were Members when elected to Parliament. The applicants in case CCZ 19/15 were Members of the National Assembly, whilst those in case CCZ 20/15 were Members of the Senate. They had all been elected to the two Houses of Parliament as members of the Movement for Democratic Change-Tsvangirai (“MDC-T”) political party. The Court heard the two applications together, as they raised the same issue and sought the same relief.</p> <p> </p> <p>The applications were made in terms of s 85(1)(a) of the Constitution of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”). The section provides that any person who alleges that any of the fundamental rights and freedoms enshrined in <em>Chapter 4</em> of the Constitution has been, is being or is likely to be, infringed may, in his or her own interests, approach a court seeking appropriate relief, which the court has a discretion to grant.</p> <p> </p> <p>The historical background to the cases is that the applicants in both cases are former members of the MDC-T. The applicants in the first application were elected to the National Assembly while the applicants in the second application were elected to the Senate, in the harmonised general elections held on 31 July 2013. As a result of political infighting, the applicants withdrew their memberships from the MDC-T. The Secretary General of the MDC-T wrote letters to the Speaker and the President of the Senate, giving them notice of the fact that the applicants had ceased to belong to the MDC-T.</p> <p> </p> <p>Upon receipt of the written notices, the Speaker and the President of the Senate announced to the Members of their respective Houses that the seats occupied by the applicants had become vacant. The announcements were made by the Speaker and the President of the Senate in their capacities as the presiding officers of the respective Houses of Parliament. They also informed the third and fourth respondents of the occurrence of the vacancies, as they were required to do by s 39(1) and s 39(3) of the Electoral Act [<em>Chapter 2:13</em>] (“the Electoral Act”).</p> <p>  </p> <p>In the wake of the written notices declaring that they had ceased to belong to the MDC-T, the applicants did not approach any court for an order protecting their rights. They decided to follow the advice of Mr Tendai Biti, a legal practitioner and one of those who had withdrawn his membership from the MDC-T. He advised that they should make applications to the Court, challenging the validity of the announcements by the Speaker and the President of the Senate that their seats had become vacant.</p> <p> </p> <p>The applicants failed to appreciate the nature and scope of the juristic acts, the occurrence of which is required under s 129(1)(k) of the Constitution for a vacancy in a seat of a Member of Parliament to occur. They approached the Court, alleging that the Speaker and the President of the Senate had expelled them from Parliament by the announcements to the Members of the respective Houses that their seats had become vacant.</p> <p>The applicants alleged that the conduct of the Speaker and the President of the Senate in “expelling” them from Parliament infringed their fundamental right to equal protection and benefit of the law enshrined in s 56(1) of the Constitution. They also alleged a violation of the right to form, join and participate in the activities of a political party of their choice in terms of s 67(2)(a); the right to stand for election for public office and, if elected, to hold such office in terms of s 67(3)(b); the right to administrative justice in terms of s 68; and the right to a fair hearing in terms of s 69(3), of the Constitution.</p> <p>      The respondents opposed the applications. They argued that the conduct of the Speaker and the President of the Senate in announcing that the seats occupied by the applicants in the respective Houses had become vacant was lawful. It could not have infringed the applicants’ rights. The respondents’ contention was that the seats became vacant as a result of the operation of the provisions of s 129(1), as read with s 129(1)(k), of the Constitution. The announcements by the Speaker and the President of the Senate of the existence of the vacancies in the seats in Parliament which had been occupied by the applicants were made <em>ex post facto</em>. They had no bearing on the events which led to the applicants ceasing to be Members of Parliament and their seats becoming vacant in terms of s 129(1) of the Constitution. The respondents contended that, as the applicants’ seats in Parliament became vacant by reason of the operation of s 129(1), as read with s 129(1)(k), of the Constitution, the applicants lost their seats lawfully. Compliance with the provisions of one section of the Constitution cannot constitute an infringement of a fundamental right protected by another section of the same Constitution. </p> <p> </p> <p>The applicants submitted that the Speaker and the President of the Senate ought to have carried out inquiries to satisfy themselves that the written notices were issued by the political party of which they were members when they were elected to Parliament. They argued that there was no “political party concerned” because there was a split in the MDC-T. According to the applicants, there was no legitimate political party to give written notices to the Speaker and the President of the Senate declaring that they had ceased to belong to it.</p> <p>            Section 129 of the Constitution provides:</p> <p>“<strong>129 Tenure of seat of Member of Parliament</strong></p> <ol> <li>The seat of a Member of Parliament becomes vacant -</li> </ol> <p>(a) – (j) … (not relevant);</p> <p>(k)        if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it.”</p> <p>        </p> <p>The interpretation given to s 129(1)(k) of the Constitution must be consistent with the spirit, purport and objects of the Constitution.</p> <p> </p> <p>The main argument was that there was no “political party concerned” to forward to the Speaker or the President of the Senate the written notice required under s 129(1)(k) of the Constitution. The allegation was that the MDC-T split into two formations, with the effect that no entity called MDC-T was left in existence. The facts do not support the contention.</p> <p>A political party is a product of a voluntary association of people who share a common ideology on how the affairs of the State should be administered and believe that if some of the members are elected to Parliament, and the political party gets control of the levers of Governmental power, they will use them for the benefit of all citizens. It is constituted in terms of its own constitution and as such is a legal entity independent of members. The applicants were elected on MDC-T tickets. They had differences with other members of the MDC-T concerning the style of leadership of the Party. They convened a meeting at the Mandel Training Centre, discussed their grievances and resolved to leave the MDC-T.</p> <p> </p> <p>It is clear from their own founding affidavits that the meeting at the Mandel Training Centre had not been sanctioned by the party structures. It was not chaired by the Chairman of the MDC-T. The conduct of the applicants was in violation of the constitution of the Party. The applicants formed a separate entity with its own bank account, signatories and headquarters. The rest of the members of the MDC-T did not reconstitute themselves. They did not create a separate formation. The MDC-T Congress then decided that the applicants, along with others, had left the MDC-T. At that point, and before they formed the splinter group, the applicants were aware that s 129(1)(k) of the Constitution could be invoked against them.</p> <p> </p> <p>The applicants, as a group, decided on their own to terminate their memberships of the MDC-T. The fact that they agreed to constitute themselves into a formation after they had terminated their memberships does not in itself mean that the others, who were not members of their group, constituted themselves into another formation. Those who did not join their group continued to regard themselves as the MDC-T. Mr Biti wrote a letter to the Speaker, in which he referred to the formation of an entity called the “Renewal Democrats Team”.</p> <p>The reason why the applicants did not challenge the validity of the cessation of their memberships of the MDC-T in a court of law was that they left the MDC-T of their own volition. Just as they had exercised their rights in freely choosing to join the MDC-T, they freely and voluntarily withdrew their memberships from it. That is why they sought to challenge the validity of the announcements of the vacancies in their seats by the Speaker and the President of the Senate.</p> <p>Mr <em>Uriri</em> sought to rely on <em>Prebble</em> v <em>Huata</em> [2004] NZSC 29, a decision of the Supreme Court of New Zealand, for the proposition that the Speaker and the President of the Senate needed to satisfy themselves that a Member being recalled has ceased to belong to “the political party concerned”. The case is not helpful in any way to the applicants’ case. It was common cause that the applicants had left the MDC-T voluntarily. The written notices came from the Secretary General of the MDC-T, from which the applicants had voluntarily withdrawn their memberships.</p> <p> </p> <p>The ancillary question is whether an act done in terms of the provisions of the Constitution can violate a person’s rights in terms of the same Constitution. The question is answered in the negative. An act lawfully done in terms of the Constitution cannot violate a person’s rights under the same Constitution.</p> <p>The applicants sought to challenge the validity of the actions by the Speaker and the President of the Senate on the basis of the allegation that they violated the fundamental rights enshrined in ss 69(3), 68(1) and 56(1) of the Constitution.</p> <p>A Member of Parliament loses his or her seat in the specific circumstances prescribed under s 129 of the Constitution. Section 129(1)(k) of the Constitution provides for one of the circumstances prescribed. One cannot read any other value into the section, because s 129(1)(k) of the Constitution is a complete provision that is not subject to the Bill of Rights. The wording of s 129(1)(k) of the Constitution is clear. Like any other provision of the Constitution, s 129(1)(k) is a fundamental law, partaking of the status of supremacy of the Constitution, against which the validity of conduct can be measured. It is not permissible to import notions from other constitutional provisions to impose a duty that was not intended to be part of the requirements of a particular constitutional provision.</p> <p>            The purpose of s 129 of the Constitution is to provide for circumstances in which the tenure of seat of a Member of Parliament comes to an end. Section 129(1)(k) of the Constitution specifies one of the circumstances in which the tenure of seat of a Member of Parliament comes to an end and the seat becomes vacant. Tenure of seat of a Member of Parliament means the tenure of the right of a Member of Parliament to occupy the seat following an election. The provisions of s 129(1)(k) of the Constitution may be summarised as being that –</p> <p> </p> <p>(a)        The Member of Parliament should have been a member of a political party when he or she was elected to Parliament;</p> <p> </p> <p>(b)        The Member of Parliament should have ceased to belong to the political party, either by voluntary withdrawal of membership or by being expelled from the political party concerned; and</p> <p> </p> <p>(c)        The political party concerned should have given a written notice to the Speaker or the President of the Senate of the cessation of membership of it by the Member of Parliament. In the written notice the political party concerned must declare that the Member of Parliament has ceased to belong to it.</p> <p> </p> <p>            Section 129(1)(k) of the Constitution relates to a legal process that has its beginning in the relationship between the Member of Parliament and the political party to which he or she belonged at the time he or she was elected to Parliament. The first fact to trigger the s 129(1)(k) process is cessation of the status of belonging to the political party concerned by the Member of Parliament. Ceasing to be a member of the political party concerned is the main event. The legal effect on the creation of a vacancy in the seat of the Member of Parliament depends on the subsequent events, which are procedural and communicative in nature.</p> <p> </p> <p>            The status of having ceased to be a member of the political party concerned is a matter of fact, the legality of which is determined by reference to the provisions of the constitution of the political party concerned. It may be a fact resulting from a process of expulsion or voluntary resignation. When it occurs, it remains a matter affecting the internal affairs of the political party concerned. It may remain so without any effect on the tenure of seat of the Member of Parliament unless the political party concerned takes the action prescribed under s 129(1)(k) of the Constitution and communicates the fact that the Member of Parliament has ceased to belong to it to the person appointed to receive the communication.</p> <p> </p> <p>            For the communication to have the legal effect it is required by the Constitution to have, it must not only take a specific form and contain a specific message, it must be addressed to a specific official. The content of the message communicated should be the fact that the Member of Parliament who is specifically identified by name has ceased to be a member of the political party concerned of which he or she was a member when he or she was elected to Parliament.</p> <p> </p> <p>            The fact that the Member of Parliament has ceased to be a member of the political party concerned must be communicated to the Speaker or the President of the Senate by means of a written notice that takes the form of a declaration. The official who signs the written notice must ensure that it declares that the Member of Parliament has ceased to be a member of the political party concerned. A declaration of fact is considered to be a solemn statement of truth that must have the legal effect designed to flow from it. The receipt by the Speaker or the President of the Senate, who are the only officials designated to receive the written notice complying with these procedural and substantive requirements of the written notice envisaged under s 129(1)(k) of the Constitution, grants to the written notice the legal effect it is intended to have.</p> <p> </p> <p>            The purpose of the written notice by the political party concerned, disclosing to a third party a fact relating to its internal relationship with a member, would have been to reclaim the seat in Parliament won by the Member of Parliament on its ticket. Section 129(1)(k) of the Constitution makes it clear that the legal effect of the receipt by the Speaker or the President of the Senate of a written notice complying with all the formal and substantive requirements is to create a vacancy in the seat in Parliament occupied by the Member who has ceased to be a member of the political party of which he or she was a member when elected to Parliament.</p> <p> </p> <p>            A number of considerations flow from the effect of s 129(1)(k) of the Constitution. It is the fact of the cessation of membership of the political party and its communication to the Speaker or the President of the Senate in the form and manner prescribed that creates a vacancy in the seat occupied by the Member who will have ceased to be a member of the political party concerned.</p> <p> </p> <p>            A vacancy in the seat in Parliament is not created by an act of the Speaker or the President of the Senate. It is created as a direct legal consequence of events, the origin of which lies outside Parliament. Termination of the tenure of the right of the Member of Parliament to occupy the seat is what the Constitution, through s 129(1)(k), says must happen when all the procedural and substantive requirements of the provision have been met.</p> <p> </p> <p>            The origin of the act concerned lies in the relationship between the political party concerned and the Member of Parliament who was its member when he or she was elected to Parliament. If the cessation of the membership of the political party concerned was by expulsion, it is that act of expulsion that has the potential of creating a vacancy in the seat occupied by the Member of Parliament. The potential consequence of the act materialises when it is communicated to and received by the official appointed to receive it in the form and with the substance prescribed. Similar consequences will follow if the termination of the membership of the political party is by resignation.</p> <p> </p> <p>            The Speaker or the President of the Senate would have had no control over the events affecting the relationship between the Member of Parliament and his or her political party. A Member of Parliament whose termination of the membership of a political party is by expulsion is not expelled from Parliament. He or she is expelled from the political party.</p> <p> </p> <p>            The Speaker or the President of the Senate cannot be accused of expelling a Member from Parliament whose seat becomes vacant because his or her right to represent the political party of which he or she was a member when elected to Parliament would have been terminated by operation of law.</p> <p> </p> <p>            The accusation against the Speaker and the President of the Senate of having expelled the applicants from Parliament shows a failure by the applicants to understand the rôle of the Speaker or the President of the Senate in the process prescribed by s 129(1)(k) of the Constitution leading to the creation of a vacancy in the seat of a Member of Parliament. The accusation also suggests that the Speaker or the President of the Senate is required to involve himself or herself in some quasi-judicial inquiry into the conduct of the Member of Parliament in which he or she finds the Member guilty of some form of misconduct for which expulsion from Parliament becomes the penalty. The rôle of the Speaker or the President of the Senate in the process leading to the creation of a vacancy in the seat of a Member of Parliament in terms of s 129(1)(k) of the Constitution is facilitative. It is not judicial in nature.</p> <p> </p> <p>            The rôle the Speaker or the President of the Senate has to play in the process is to satisfy himself or herself that the document he or she has received is from a political party and that it contains a written notice declaring that the Member of Parliament who was a member of that political party when elected to Parliament has ceased to belong to the political party concerned. The Speaker or the President of the Senate has no power to prevent the occurrence of the creation of the vacancy in the seat of a Member of Parliament commanded by s 129(1)(k) of the Constitution as the consequence of the communication and receipt of the written notice.</p> <p> </p> <p>            The announcements by the Speaker and the President of the Senate of vacancies in the seats in Parliament occupied by the applicants were done for purposes of informing the Members of the respective Houses of what had happened. They were not and could not be announcements of the results of decisions they had themselves taken to create the vacancies in the seats in Parliament. The Speaker and the President of the Senate did not pretend to have the power to create vacancies in the seats occupied by the applicants in Parliament.</p> <p> </p> <p>            The applicants did not deny the fact that the creation of the vacancies in the seats in Parliament occurred before the announcements. The announcements were separate <em>ex post facto</em> occurrences, with their own purposes to serve in the performance of administrative functions by the Speaker and the President of the Senate.</p> <p> </p> <p>The reports the Speaker and the President of the Senate gave to the third and fourth respondents were in fulfilment of the requirements of s 39(3) of the Electoral Act. The reports cannot be related to the satisfaction of the requirements of s 129(1)(k) of the Constitution.</p> <p> </p> <p>            The question that should have been asked and answered by the applicants before instituting these proceedings was whether what was done by the Speaker and the President of the Senate was a failure to comply with the requirements of s 129(1)(k) of the Constitution. Did the Speaker and the President of the Senate do any act inconsistent with the provisions of s 129(1)(k) of the Constitution? If what was done had no substantive bearing on the requirements of s 129(1)(k) of the Constitution for the creation of a vacancy in a seat of a Member of Parliament, the attack on its validity is of no relevance in the determination of the question of the matter in dispute. The matter in dispute was the validity of the creation of vacancies in the seats of the Members of Parliament concerned in terms of s 129(1)(k) of the Constitution.</p> <p> </p> <p>Mr <em>Uriri</em> relied on the decision of the Supreme Court of India in <em>Kihoto Hollohan</em> v <em>Zachillhur and Others</em> [1992] Supp. (2) SCC 651. The Supreme Court of India said:</p> <p>“In the Indian constitutional dispensation, the power to decide a disputed disqualification of an elected Member of the House is not treated as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature. The power to decide disputed disqualification under Paragraph 6(1) is pre-eminently of a judicial complexion. [pp.759G. 763C] <em>Indira Nehru Gandhi </em>v <em>Raj Narain</em>, [1976] 2 SCR 347; Special Reference 700 No. 1 of 1964 [1964] INSC 209; [1965] 1 SCR 413 and <em>Express Newspaper Ltd</em> v <em>Union of India</em>, AIR 1958 SC 578, referred to. <em>Australian Boot Trade Employees Federation</em> v <em>Whybrow &amp; Co</em>. [1910] HCA 8; 1910 10 CLR 266, referred to.”</p> <p> </p> <p>            In India, between 1967 and 1983 about one Government collapsed each month on account of defections. At times an average of one legislator changed his or her affiliation each day. During the period extending from 1967 to 1972, sixty percent of the elected Members of Legislatures defected at least once. During the period there were 2 700 defections. Hence Parliament amended the Constitution and added the Tenth Schedule to the Constitution prohibiting defections. See: T K Tope “<em>Constitutional Law of India</em>” 2 ed at 1006.</p> <p>The Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as “the Anti-Defection Law”) inserted the Tenth Schedule in respect of the provisions of Articles 102(2) and 191(2). The Tenth Schedule provided for the disqualification of a Member of either House of Parliament or of a State Legislative Assembly. Paragraph 1 of the Tenth Schedule provides that a Member of the House of Parliament or State Legislative Assembly incurs disqualification if he or she voluntarily gives up his or her membership of the political party by which he or she was put forward as a candidate at the election. A member also incurs disqualification if he or she, without obtaining prior permission of the political party to which he or she belongs, votes or abstains from voting in the House of Parliament or State Legislative Assembly contrary to "any direction" issued by such political party and such voting or abstention has not been condoned by such political party within fifteen days from the date of such voting or abstention. Disqualification could also be incurred if a Member elected otherwise than as a candidate set up by any political party joins a political party after the elections; or if a nominated Member joins any political party after expiry of six months from the date he or she took his or her seat.</p> <p>Paragraph 5 of the Tenth Schedule of the Constitution of India provides that, whenever a question arises whether a Member has become subject to disqualification, that matter shall be referred for decision to the Chairman or Speaker, as the case may be, and his or her decision shall be final. According to Paragraph 6, all proceedings under Paragraph 5 shall be treated as internal proceedings of the House of Parliament or State Legislative Assembly within the meaning of Articles 122 or 212 of the Constitution of India and no court shall inquire into the proceedings. Paragraph 7 provides that no court, including the High Court and the Supreme Court, shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of the House of Parliament or State Legislative Assembly under the Tenth Schedule. The law itself provided that questions of disqualification were to be decided by the Chairman or the Speaker, as the case may be, and his or her decision was final. The Constitution of India itself gave judicial powers to the Chairman or the Speaker. There is no similar provision in our Constitution.</p> <p>The important aspect of the provisions of the Tenth Schedule to the Constitution of India is that the legal effect of defection by a Member from the political party to which he or she belonged when elected to the House of Parliament or the State Legislative Assembly is disqualification as a Member of the House of Parliament or the State Legislative Assembly. In other words, the seat becomes vacant by reason of the disqualification resulting from the act of defection. In that way, there would be no benefit accruing from defection. There would be no floor-crossing. A situation where a Member of Parliament, who has lost his or her membership of the political party to which he or she belonged when elected, retains the right to remain a Member of Parliament or the State Legislative Assembly with the capacity to vote with any other party against the former political party is prevented.</p> <p>Mr <em>Uriri</em> further sought to rely on the <em>Kihoto Hollohan</em> judgment <em>supra</em> to suggest that the Speaker or the President of the Senate exercises quasi-judicial functions when he or she acts in terms of s 129(1)(k) of the Constitution. That argument does not accord with the interpretation of s 129(1)(k) of the Constitution. Sight ought not to be lost of the fact that the loss by a Member of Parliament of the right to occupy a seat in Parliament in terms of s 129(1)(k) of the Constitution is not a matter within the discretion of the Speaker or the President of the Senate. It happens by operation of law. The rôle of the Speaker or the President of the Senate is to receive the written notice which conforms with the prescribed form, bearing the required contents. All the Speaker or the President of the Senate has to do is to satisfy himself or herself that the written notice communicated to him or her is the document contemplated in s 129(1)(k) of the Constitution.</p> <p>The applicants in the first case say that the Speaker arrogated to himself “judicial authority” and determined that the letter written by the Secretary General of the MDC-T was to be given precedence over the letter written by Mr Biti. It is difficult to understand how the applicants can allege that the Speaker ought to have enquired into the legality of the process by which the applicants ceased to members of the MDC-T.</p> <p>The applicants do not seek any relief relating to s 129(1)(k) of the Constitution, in terms of which the process they are complaining about was conducted. In essence, the applicants sought to argue that the Speaker and the President of the Senate are duty bound to enquire into the fairness of the process by which a person ceases to be a member of a political party.</p> <p> </p> <p>The law requires the Speaker and the President of the Senate only to accept that a person has ceased to be a member of a political party as communicated by the written notice. They have no power to enquire into the legality of the processes which lead to the eventuality of the cessation by the Member of Parliament of membership of the political party concerned. The section gives the political party to which a Member of Parliament belonged a right to have the seat rendered vacant. In the exercise of that right, the political party concerned, through an officer authorised to do so, is required to forward a written notice to the Speaker or the President of the Senate, declaring that a Member of Parliament has ceased to belong to it. The political party concerned is required to comply with the form and content of the communication.</p> <p>            Section 129(1)(k) of the Constitution is a provision clearly intended to benefit a political party in order to protect it from members who abandon its cause. The provision is meant to avert floor-crossing. It is the political party concerned which is ultimately answerable to the people.</p> <p> </p> <p>The object of s 129(1), as read with s 129(1)(k), of the Constitution, like the anti-defection provisions of the Tenth Schedule to the Constitution of India, is to preserve and promote democracy. The vacancy is created in a seat of a Member of Parliament, who has ceased to belong to the political party of which he or she was a member when elected, to give the electorate the right to decide in a bye-election whether to give the mandate to represent them in Parliament to the political party concerned or to the same person who lost the seat if he or she stands as an independent candidate or as a candidate sponsored by another political party. The purpose of the requirement that the Speaker or the President of the Senate should advise the President of Zimbabwe and the Chairperson of the Zimbabwe Electoral Commission, in terms of s 39(1) of the Electoral Act, of the vacancy in the seat of a Member of Parliament is to ensure that a bye-election is called.</p> <p> </p> <p>Jennings “<em>Cabinet Government</em>” (3 ed p 472) states that a Member of Parliament elected on a political party ticket has two obligations. He or she has an obligation to the political party. He or she also has an obligation to the electors. The obligation to the political party is to support it for the normal duration of Parliament. The obligation to the electors stems from the fact that, in modern times, the elector, speaking broadly, casts his or her vote for a particular individual, not because of his or her individual merits, but because he or she is put forward by the party for which the elector desires to vote. The successful candidate is almost invariably returned to Parliament, not because of his or her judgment and capacity, but because of his or her political party label. His or her personality and his or her capacity are alike unknown to the great mass of his or her constituency. His or her own electioneering is far less important than the impression which his or her political party creates in the minds of the electors. They vote for or against the party to which he or she belongs.</p> <p> </p> <p>The candidate who stands on a political party ticket represents to the electors that he or she will support the party and its general programme, and that he or she will abide by the decisions of the majority of the party once those decisions are taken. If a person has uncompromising views on various issues which may not harmonise with the views of any political party, his or her proper course is to stand as an independent candidate. But those that desire that effect should be given to certain views and policies on which a number of people are agreed should join or form a political party, as that is the only effective way of implementing those policies. However, working together with a group of people pledged to carry out broad policies means that the right of dissent is greatly restrained, for in no other way can policies on which there is broad agreement be carried out.</p> <p> </p> <p>The kind of democracy which has been set up by our Constitution and the conditions under which that democracy must operate bear testimony to the views on the relationship between a member and his or her political party. Zimbabwe is a multi-party democracy. In adopting a multi-party democracy, the makers of the Constitution assumed there would be multiple political parties, as in fact there are.</p> <p> </p> <p>It is for these reasons that the Court found the applications to be without merit.</p> <p> </p> <p> </p> <p> </p> <p><strong>            CHIDYAUSIKU CJ:     </strong></p> <p> </p> <p> </p> <p> </p> <p>            <strong>ZIYAMBI JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p>            <strong>GWAUNZA JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p>            <strong>GARWE JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p>            <strong>GOWORA JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p>            <strong>HLATSHWAYO JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p>            <strong>PATEL JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p>            <strong>GUVAVA JCC:</strong>     I agree</p> <p> </p> <p> </p> <p> </p> <p><em>Tendai Biti Law</em>, applicants’ legal practitioners</p> <p> </p> <p><em>Chihambakwe, Mutizwa and Partners</em>, first and second respondents’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, third respondent’s legal practitioners</p> <p><em>Nyika, Kanengoni &amp; Partners Legal Practitioners</em>, fourth and fifth respondents’ legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2015/8/2019-zwcc-08.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=48005">2019-zwcc-08.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2015/8/2019-zwcc-08.pdf" type="application/pdf; length=225829">2019-zwcc-08.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitution-zimbabwe-2013">Constitution of Zimbabwe 2013</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-constitution">Interpretation of Constitution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parliament">Parliament</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/elections">Elections</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/candidate-elections">Candidate (ELECTIONS)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constituencies-and-wards">Constituencies and wards</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/consolidated-act/chapter-213">Electoral Act,[Chapter 2:13]</a></div></div></div> Wed, 17 Apr 2019 15:01:10 +0000 admin 9300 at https://old.zimlii.org Chamisa v Mnangagwa & 24 Others (CCZ 42/18) [2018] ZWCC 42 (24 August 2018); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2018/42 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>CCZ 42/18</strong></p> <p> </p> <p> </p> <p><strong>NELSON CHAMISA                                                                       Applicant</strong></p> <p> </p> <p><strong>and</strong></p> <p> </p> <p><strong>EMMERSON DAMBUDZO MNANGAGWA                              First Respondent</strong></p> <p> </p> <p><strong>JOSEPH BUSHA                                                                              Second Respondent </strong></p> <p> </p> <p><strong>MELBAH DZAPASI                                                                        Third Respondent </strong></p> <p> </p> <p><strong>NKOSANA MOYO                                                                          Fourth Respondent </strong></p> <p> </p> <p><strong>NOAH MANYIKA                                                                           Fifth Respondent </strong></p> <p> </p> <p><strong>HARRY PETER WILSON                                                              Sixth Respondent </strong></p> <p> </p> <p><strong>TAURAI MTEKI                                                                              Seventh Respondent </strong></p> <p> </p> <p><strong>THOKOZANI KHUPE                                                                    Eighth Respondent</strong></p> <p> </p> <p><strong>DIVINE MHAMBI                                                                           Ninth Respondent</strong></p> <p> </p> <p><strong>LOVEMORE MADHUKU                                                              Tenth Respondent </strong></p> <p> </p> <p><strong>PETER MUNYANDURI                                                                 Eleventh Respondent </strong></p> <p> </p> <p><strong>AMBROSE MUTINHIRI                                                                Twelfth Respondent </strong></p> <p> </p> <p><strong>TIMOTHY JOHANNES CHIGUVARE                                        Thirteenth Respondent </strong></p> <p> </p> <p><strong>JOICE MUJURU                                                                              Fourteenth Respondent </strong></p> <p> </p> <p><strong>KWANELE HLABANGANA                                                         Fifteenth Respondent </strong></p> <p> </p> <p><strong>EVARISTO CHIKANGA                                                                Sixteenth Respondent </strong></p> <p> </p> <p><strong>DANIEL SHUMBA                                                                          Seventeenth Respondent </strong></p> <p> </p> <p><strong>VIOLET MARIYACHA                                                                  Eighteenth Respondent </strong></p> <p> </p> <p><strong>BLESSING KASIYAMHURU                                                        Nineteenth Respondent </strong></p> <p> </p> <p><strong>ELTON MANGOMA                                                                       Twentieth Respondent </strong></p> <p> </p> <p><strong>PETER GAVA                                                                               Twenty-first Respondent </strong></p> <p> </p> <p><strong>WILLARD MUGADZA                                                            Twenty-second Respondent </strong></p> <p> </p> <p><strong>ZIMBABWE ELECTORAL COMMISSION                           Twenty-third Respondent </strong></p> <p> </p> <p><strong>THE CHAIRPERSON OF THE ZIMBABWE</strong></p> <p><strong>ELECTORAL COMMISSION                                                  Twenty-fourth Respondent</strong></p> <p> </p> <p><strong>THE CHIEF EXECUTIVE OFFICER OF THE</strong></p> <p><strong>ZIMBABWE ELECTORAL COMMISSION                              Twenty-fifth Respondent</strong></p> <p> </p> <p><strong><u>DECISION</u></strong></p> <p> </p> <p>MALABA CJ: This is the unanimous judgment of the Court. It must be noted that it, however, does not contain the full reasons thereof.  These will be issued in due course. </p> <p>On 30 July 2018 the Republic of Zimbabwe held harmonised Parliamentary, Local Government and Presidential elections. The applicant and the first respondent participated as Presidential candidates along with twenty-one others.  </p> <p>On 3 August 2018 the twenty-fourth respondent, acting in terms of section 110(3)(f)(ii) of the Electoral Act [<em>Chapter 2:13</em>] (“the Act”), declared the first respondent, as the candidate who had received more than half the number of votes cast, to be duly elected as the President of the Republic of Zimbabwe, with effect from that date.</p> <p>The applicant was aggrieved by the declaration of the first respondent as having been duly elected as the President of the Republic of Zimbabwe. He lodged an application in terms of section 93(1) of the Constitution of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”), challenging the validity of the election of the first respondent as the President of the Republic of Zimbabwe. Section 93 provides as follows:</p> <p>“<strong>93    Challenge to presidential election</strong></p> <p>(1)     Subject to this section, any aggrieved candidate may challenge the validity of an election of a President or Vice-President by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election.</p> <p>(2)     The election of a Vice-President may be challenged only on the ground that he or she was not qualified for election.</p> <p>(3)     The Constitutional Court must hear and determine a petition or application under subsection (1) within fourteen days after the petition or application was lodged, and the court’s decision is final.”</p> <p>The applicant seeks the following relief –</p> <ol> <li>A <em>declaratur</em> to the effect that –</li> </ol> <p>(i)      The Presidential election of 2018 was not conducted in accordance with the law and was not free and fair.</p> <p>(ii)     The election results announced by the Commissioners of the Zimbabwe Electoral Commission on the 2<sup>nd</sup> of August 2018 and the concomitant declaration of that same date by its chairperson to the effect that Emmerson Dambudzo Mnangagwa was to be regarded as the duly elected President of the Republic of Zimbabwe with effect from the 2<sup>nd</sup> of August 2018 is in terms of section 93(4)(b) of the Constitution of Zimbabwe as read together with section 111(2)(b) of the Electoral Act [<em>Chapter 2:13</em>] declared unlawful, of no force or effect and accordingly set aside.</p> <p>(iii)    The applicant, Nelson Chamisa, is in terms of section 93(4) of the Constitution of Zimbabwe declared the winner of the presidential election held on the 30<sup>th</sup> of July 2018;</p> <ol> <li>An order to the following effect –</li> </ol> <p>(i)      The twenty-fifth respondent shall publish in the <em>Government Gazette</em> this order and the declaration of the applicant to the office of the President of the Republic of Zimbabwe; alternatively –</p> <p>(ii)     In terms of section 93(4)(b) an election to the office of the President of the Republic of Zimbabwe shall be held within sixty days of this order; and</p> <p>(iii)    Costs of this application shall be borne by the Zimbabwe Electoral Commission and any such respondent as opposes it.</p> <p>The application was opposed by the first, fifth, sixth, seventeenth, eighteenth, twentieth, twenty-third, twenty-fourth and twenty-fifth respondents. For reasons that will be set out in the full judgment, the court ruled that the opposing papers filed by the fifth, sixth, seventeenth and twentieth respondents were –</p> <ol> <li>not properly before the Court, and</li> <li>should be expunged from the record with no order as to costs.</li> </ol> <p>The sixth and eighteenth respondents indicated that they would abide by the decision of the Court.</p> <p><strong>Whether the application is properly before the Court</strong></p> <p>The respondents took several points <em>in limine</em> including that the application filed by the applicant was not properly before the Court. This was because, although filed within seven days, as is stipulated by section 93 of the Constitution, the application was served on the respondents on the eighth day in violation of rule 23(2) of the Rules of the Constitutional Court 2016 (“the Rules”).</p> <p>The Constitution does not refer to week days but days. This is to be taken to mean seven <strong>calendar days and includes Saturdays and Sundays</strong>.</p> <p>In terms of r 23(2) of the Constitutional Court Rules, 2016, the application <strong>shall </strong>be lodged with the Registrar and shall be served on the respondent <strong>within seven (7) days of the declaration of the result of that election.</strong></p> <p>The first respondent was declared the duly elected president on 3 August 2018. In terms of <strong>s 93(1) of the Constitution as read with r 23(2) of the Constitutional Court Rules, </strong>the applicant had until 10 August 2018 to file and serve the application on the respondents.</p> <p>The applicant appears to have been cognizant of the reckoning of days and time limitations prescribed by the Constitution and waited until the last day to file his application shortly before close of the Constitutional Court Registry on 10 August 2018. He was entitled by law to do so.</p> <p>Having done so, the applicant was then faced with a further obligation to serve the process on all the respondents on the same day. The applicant could only do so through the Sheriff of Zimbabwe in terms of r <strong>9(7) of the Constitutional Court Rules</strong>.</p> <p>The applicant indicates that he did so. The Sheriff had until 10 pm that same evening to effect service in compliance with the Rules. The affidavits submitted by the respondents show that the applicant had in fact attempted service in his own capacity and without assistance of the Sheriff on 10 August 2018.</p> <p>It is common cause that the application was eventually served on the respondents on 11 August 2018, outside of the timeframes stipulated in the Constitution and contrary to the provisions of the Constitutional Court Rules.</p> <p>The same limitation applied to the respondents, who were served with the application on Saturday 11 August 2018. The notices of opposition would have been due within three days from that date, being 14 August 2018.</p> <p>In terms of <strong>s 336(2) of the Constitution of Zimbabwe</strong>:</p> <p>“Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.”</p> <p>The <em>dies induciae</em> having expired on 14 August 2018, a public holiday in Zimbabwe, the notices of opposition both had to be filed on the next business day thereafter, being 15 August 2018. They were duly and properly lodged with the Registrar in terms of the law.</p> <p>The applicant clearly breached the Rules of the Court, and filed a defective application. However, due to the importance of the matter and the public interest, the Court has the power to condone the non-compliance with the Rules in the interests of justice.</p> <p>An application for condonation of this non-compliance, <em>albeit</em> opposed by the respondents, was made for the applicant. This Court is prepared to, and does, grant the application due to the importance of the matter and the public interest involved.</p> <p>The other points <em>in limine </em>raised by the respondents will be fully addressed in the main judgment<em>.</em></p> <p>On the merits, the applicant alleges that the first respondent did not win the election due to the fact that, in the run up to the elections, the twenty-third and twenty-fourth respondents were involved in a litany of constitutional and electoral law violations, all of which had the effect of undermining the just conduct of the elections. Some of the alleged violations related to –</p> <ul> <li>Lack of independence of the Zimbabwe Electoral Commission;</li> </ul> <p>2   Failure of State owned media to comply with s 61(4) of the Constitution;</p> <p>3   Conduct of traditional leaders and rogue security elements;</p> <ul> <li>Failure to abide by general principles affecting conduct of elections;</li> </ul> <ul> <li>ZEC’s responsibility to compile voter’s rolls;</li> </ul> <p>6   Wearing of partisan clothing;</p> <ul> <li>Failure to provide a complete Voters’ Roll;</li> </ul> <ul> <li>Voter Education;</li> </ul> <ul> <li>Design of Presidential ballot paper;</li> </ul> <p>10 Fixing of polling station returns (V11 forms) on the outside of polling stations;</p> <p>11 Postal Ballots;</p> <p>12 Counting of Presidential Ballots;</p> <p>13 Undue influence, threats, injury, damage, harm or loss to voters; and</p> <p>14 Bribery, provision of seed and fertiliser packs.</p> <p>The Court notes that the High Court of Zimbabwe was in recent months seized with and determined issues pertaining to –</p> <ol> <li>The conduct of postal voting;</li> <li>The design of the Presidential ballot;</li> </ol> <ul> <li>The release of voters’ rolls with voters’ photographs to the parties; and</li> </ul> <ol> <li>the twenty-third respondent’s obligation to facilitate voting by civil servants engaged in election duties on election day.</li> </ol> <p>These judgments are extant and the Court will therefore not, at this juncture, address the applicant’s contentions in respect of those issues.</p> <p>The Court will also not, in this abridged version of its judgment, address the totality of the allegations made by the applicant, as listed above. This will be done in the main judgment.</p> <p><strong>The standard of proof in election petitions</strong></p> <p>In terms of authorities of this and other Courts, the declaration of results in terms of s 110((3)(f)(ii) of the Act creates a presumption of validity of that declaration.</p> <p>The <em>onus</em> and burden of proof in this application therefore rests with the applicant and it is for him to prove to the satisfaction of the Court that there were irregularities in the conduct of the election that warrant the relief sought.</p> <p>The general position of the law is that no election is declared to be invalid by reason of any act or omission by a returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate electoral rules if it appears to the Court that the election was conducted substantially in accordance with the law governing elections and that the act or omission did not affect the result.</p> <p>As an exception to this general position, the Court will declare an election void when it is satisfied from the evidence provided by an applicant that the legal trespasses are of such a magnitude that they have resulted in substantial non-compliance with the existing electoral laws.</p> <p>Additionally, the Court must be satisfied that this breach has affected the results of the election. In other words, an applicant must prove that the entire election process is so fundamentally flawed and so poorly conducted that it cannot be said to have been conducted in substantial compliance with the law. Additionally, an election result which has been obtained through fraud would necessarily be invalidated.</p> <p>From the aforegoing, the Court will only invalidate a presidential election in very limited and specific circumstances, if:</p> <ol> <li>The results are a product of fraud.</li> </ol> <ol> <li>The elections were so poorly conducted that they could not be said to have been in substantial compliance with the law.</li> </ol> <p>It is for the applicant to prove to the satisfaction of the Court that the election was conducted in a manner which fell substantially below the statutory requirements of a valid election and that the result was materially affected warranting a nullification of the result or invalidation of the election.</p> <p> </p> <p><strong>THE NEED FOR THE APPLICANT TO HAVE PRODUCED SOURCE EVIDENCE</strong></p> <p>A significant part of the applicant’s challenge related to the result and figures announced by the Electoral Commission. Allegations were made that the results announced were incorrect and did not reflect the true will of the people of Zimbabwe.</p> <p>In so doing the applicant alleged irregularities relating to voter patterns, polling station returns, inflation of votes, over voting and ghost voting, among other infractions, which will be dealt with. In short it is alleged that there was rigging.</p> <p>The applicant made general allegations against the first respondent. No direct allegations of personal manipulation of the process were made against the first respondent. All allegations were made without particularity and specificity. This would have been required to prove allegations of complicity with the Zimbabwe Electoral Commission by the winner of the election, alleged to be the deliberate beneficiary of the allegedly improper election.</p> <p>Nevertheless, if the applicant had proved that the Zimbabwe Electoral Commission committed irregularities and met the legal requirements of such a petition as to the requisite standard of proof, this alone would have been sufficient to invalidate the election even in the absence of direct involvement by the first respondent.</p> <p>The applicant also made several allegations of irregularities against the Zimbabwe Electoral Commission related to its failure to discharge its obligations in terms of the law. No proof or evidence was adduced by the applicant of these allegations.</p> <p>The best evidence in this instance would have been the contents of the ballot boxes themselves. That is the primary source evidence. Evidence of the contents of the ballot boxes compared to the announcements by the Zimbabwe Electoral Commission and the evidence within the applicant’s knowledge would have given the Court a clear picture of any electoral irregularities or malpractices if any had occurred. No such proof was adduced by the applicant to support his allegations.</p> <p>The electoral law is designed to protect the vote. The protection of the ballot cast by every citizen who participated in the election is fundamental. It is one that the Court should guard jealously.</p> <p>The avenues available to an aggrieved candidate are meant to ensure that he or she has all the evidence available to him or her to assist the Court.</p> <p>It follows that when the result was declared in the early hours of Friday 3 August 2018 the applicant knew he was an aggrieved candidate. He may not have known the exact or precise reason why he was aggrieved but the law-makers in their wisdom created an avenue for the applicant to ensure that he had all the evidence necessary to prove his case if he wished to exercise his rights to challenge the result. Time was on his side to obtain such evidence from the election residue.</p> <p>The applicant’s remedies to access the ballot and election residue are in the Electoral Act under <strong>ss 67A and 70.</strong> Under s 67A he could have sought a recount of the votes within forty-eight hours; whilst under s 70 he could have approached the Electoral Court for an order for the unsealing of the ballots.</p> <p>These remedies are designed to protect each aggrieved candidate. They ensure that a decision to embark on unnecessary litigation challenging the validity of an election is not made. They also ensure that a litigant who embarks on litigation has the necessary evidence with which to establish his or her case. In that way, any doubt as to whether or not the election itself was properly conducted on the election day, and whether the true expression of the will of the voters was announced would have been addressed by the parties before the application was lodged.</p> <p>The remedies provided for by the electoral law do not only protect the right of an aggrieved candidate to information, they direct him or her to the source of the kind of evidence that would be required to prove the allegations of irregularities committed by the Zimbabwe Electoral Commission in the conduct of the election.  So these are remedies not for the respondents’ benefit. They are meant to protect the rights of those who are aggrieved by the results of the Presidential election.</p> <p>Armed with the evidence either from a recount where the figures are alleged to be incorrect, or analysis of the contents of the unsealed boxes, the applicant would have had a clear and indisputable picture of the outcome of the election. He would have been clear whether any malpractices and irregularities regarding the actual votes cast and results announced would be substantiated. He chose not to exercise this right.</p> <p>The electoral law protects the voters and the candidate in the process involved. This is from the delivery of the ballot papers to the polling station, to the collection of the ballot paper, to voting in secret in the booth, to counting of the ballots, and the sealing of the ballot boxes at the end of the election.</p> <p>The applicant was at large to have his polling agents at each and every polling station around the country. Observers were also free to participate in the process. The applicant’s agents would have observed the voters arriving, being given the ballot papers as applicants for these papers before the presiding officers, going on to vote in secret in the booths, and having the votes counted in their presence if they were there. At the end of the counting all agents present would have signed the V11 forms if they so wished and given copies.</p> <p>If the applicant had placed before the Court the V11 forms from all the polling stations where he could have had polling agents, a simple analysis of those V11 forms against the V11 forms in the ballot boxes would easily have done the following –</p> <p>(a) It would have disposed of any questions regarding the number of votes for any given polling station or constituency,</p> <p>(b) It would have addressed any question of over-voting;</p> <p>(c) It would have debunked allegations of upsurges of voters after a particular time, for instance, what is alleged to have happened in Mashonaland Central Province;</p> <p>(d) It would have addressed issues of differences in voting patterns and numbers of votes for parliamentary and presidential elections,</p> <ul> <li>It would also have addressed issues of improbability of similar and identical results at polling stations.</li> <li>It would have addressed questions regarding the accuracy of the result and data provided by the Commission.</li> </ul> <p>In essence the entire challenge to the correctness of the figures relating to the result of the election would have been easily resolved. If there was any irregularity, it would have been easily detectable.</p> <p>When pressed why the primary source evidence was not adduced, the applicant’s practitioner gave a bald and unsubstantiated allegation that the election residue had been tampered with. It was argued by the applicant’s counsel that the residue was a poisoned chalice. In other words, by the time you would have sought to have the ballot boxes unsealed they would already have been manipulated. It was argued that such an exercise would have been futile. The Zimbabwe Electoral Commission contends that the prescribed procedures were complied with.</p> <p>Logic therefore dictates that if the applicant and his agents (or any other political candidate whose agent had the forms) had the V11 forms in their custody, they could easily have compared them against the residue and further compared them against the result declared.</p> <p>Even assuming the applicant did not have agents at every polling station, a sample constituency could have been used. If there were instances where for one reason or another the forms were not recorded as they should have been, specific evidence detailing the gaps or discrepancies should have been produced to the Court. Such evidence could then have been used to support the allegations of malpractice levelled against the Zimbabwe Electoral Commission. Whether the evidence adduced was sufficient proof of the allegations of irregular conduct made against the Zimbabwe Electoral Commission would have become a separate question for determination.</p> <p>In the second instance, the applicant argues that the crux of his case stands even without that primary evidence. It was argued that an attack on the accuracy and correctness of the figures produced by the Zimbabwe Electoral Commission itself would suffice to invalidate the election. The Zimbabwe Electoral Commission specifically and systematically explained and answered the allegations that were made against it.</p> <p><strong>ON THE CASE PRESENTED BY THE APPLICANT OF IRREGULARITIES</strong></p> <p>The applicant made several generalised allegations of electoral malpractices against the Zimbabwe Electoral Commission. He made a startling submission that these generalised allegations would suffice to prove the case without resort to the primary source evidence.</p> <p>The Zimbabwe Electoral Commission nonetheless took time to analyse the allegations against it and produced clear and tangible evidence to refute the allegations, making it incumbent on the applicant to discharge the <em>onus</em> which was on him. The <em>onus</em> to prove the case is not on the person accused. The accused person does not have to prove his or her innocence. The respondents in this case needed only to respond.</p> <p><strong>Signed and unannotated V11 forms</strong></p> <p>The Zimbabwe Electoral Commission proved through the V11 forms produced that the allegations that some forms had been signed and not populated was false, as there appears to have been a deliberate fabrication of evidence with an intent to mislead the Court. Without access to the sealed ballot boxes residue, this allegation simply remains as refuted.</p> <p><strong>Disenfranchisement of 40,000 teachers</strong></p> <p>The applicant alleged that some 40,000 teachers were denied their right to vote on the election day and that this had a direct effect on the result. The allegation was very general and unsubstantiated. It is not evident how the figure of 40,000 was calculated.</p> <p>There was no evidence from the teachers themselves that they were registered voters who wanted to exercise their right to vote and were posted against their will. On the contrary, it was shown by the Zimbabwe Electoral Commission that some teachers had deliberately opted not to vote in favour of being posted to stations where such right could not be exercised.</p> <p>The Constitution gives every Zimbabwean citizen who is eligible to vote a right to vote. It is not an obligation under our Constitution to vote. There was no evidence how many of these were registered voters. There was no evidence of the effect this allegation even if it were proven would have had on the result. There was no guarantee that every teacher would have voted for the applicant.</p> <p>The allegations relating to ghost polling stations, or polling stations created at the time of voting, lacked specificity and particularity. They were in any case disproved by the evidence adduced for the twenty-third and twenty-fourth respondents. And these are the kind of allegations that would have been easily proved by the evidence in the sealed ballot boxes.</p> <p><strong>THE ELECTION RESULT AND THE ADMISSION BY ZEC</strong></p> <p>On 3 August 2018 the Zimbabwe Electoral Commission announced that Emmerson Dambudzo Mnangagwa, having achieved the required 50% plus one vote from the election, was declared to be the duly elected President of Zimbabwe. The declaration was made in terms of <strong>section 110(3)(f)(ii)</strong> of the <strong>Electoral Act</strong>, which reads:</p> <p>“<strong>(f)    subject to paragraph (h), after the number of votes received by each candidate as shown in each constituency return has been added together in terms of paragraph (e), the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) shall —</strong></p> <p><strong>   (i)    where there are two candidates, forthwith declare the candidate who has received the greater number of votes to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration; or</strong></p> <p><strong>   (ii) where there are more than two candidates, <u>forthwith declare the candidate who has received more than half the number of votes to</u> be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration; or</strong></p> <p><strong>   (iii) where there are more than two candidates, and no candidate has received more than half the number of votes, forthwith declare that a runoff presidential election shall be held on the date fixed by the President in terms of section 38(1)(a)(iii) (that is to say, a fixed date not less than twenty-eight and not more than forty-two days after the polling day or last polling day, the case may be, of the original election):</strong></p> <p><strong>Provided that the Electoral Court, on the application of the Commission, may for good cause extend the period;</strong></p> <p><strong>                        …”</strong></p> <p> </p> <p>The declaration as set out in these provisions of the law is the legal event. This is upon any candidate reaching the 50% plus one vote threshold. Whether a candidate has received 50% plus one vote of the total number of votes cast is a question of fact. The declaration can only be changed or altered by this Court in terms of <strong>s 110 (3)(i)</strong>, which reads<strong>:</strong></p> <p>“<strong>(i) a declaration by the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) under paragraph (h) [shall] be final, subject to reversal on petition to the Electoral Court that such declaration be set aside or to the proceedings relating to that election being declared void;”.</strong></p> <p>The declaration itself is final subject to the requirements of reversal. The Zimbabwe Electoral Commission made a critical admission that the exact figures were incorrect and minor adjustments were made after data capturing errors were corrected. It was submitted that this affected the figures relating to the first respondent’s win by 0.1% but did not affect the result of the election.</p> <p>It is important to understand what the result of an election is. The result of the election is the declaration of a winner having reached the 50% plus one vote, no other thing. Any votes after that point have no bearing on the result of the election.</p> <p>The amendment by the Zimbabwe Electoral Commission has no effect at all on the result of the election and the declaration as interpreted in this case. In fact, an error in counting and amendment of figures is envisaged in the Act itself, which makes the provisions of s 110 subject to those of s 67A. The law allows for the adjustment. If the applicant was aggrieved by the counting and figures availed, he should have utilised the remedies availed to him by statute to get the relevant evidence.</p> <p>In this case, the applicant, in our view, needed more evidence than just the mere admission by the Zimbabwe Electoral Commission of the inaccuracy of the figures to show that the result was affected. If it was and there was in fact no winner having 50% + 1 vote, there would be grounds for a re-run or any other appropriate remedy. The applicant chose not to pursue this avenue.</p> <p><strong>CONCLUSION</strong></p> <p>In the final analysis, the Court finds that the applicant has failed to place before it clear, sufficient, direct and credible evidence that the irregularities that he alleges marred the election process materially existed. The applicant did not prove the alleged irregularities as a matter of fact.</p> <p>It would be unnecessary in the circumstances to ask and answer the question whether irregularities materially affected the result of the election. As already indicated, it is an internationally accepted principle of election disputes that an election is not set aside easily merely on the basis that an irregularity occurred. There is a presumption of validity of an election.</p> <p>This is so because as long as the election was conducted substantially in terms of the Constitution and all governing laws it would have reflected the will of the people. It is not for the Court to decide elections; it is the people who do so. It is the duty of the courts to strive in the public interest to sustain that which the people have expressed their will in. Therefore, the application ought to be dismissed.</p> <p><strong>ORDER</strong></p> <p>In the result, the following order is made –</p> <p>(1)     The application is dismissed with costs.</p> <p>(2)     Emmerson Dambudzo Mnangagwa was duly elected President of the Republic of Zimbabwe.</p> <p>(4)     In terms of section 93(4)(a) of the Constitution of Zimbabwe EMMERSON DAMBUDZO MNANGAGWA is duly declared the winner of the Presidential election held on the 30<sup>th</sup> of July 2018.</p> <p><strong>GWAUNZA DCJ</strong>: I agree</p> <p><strong>GARWE JCC:</strong> I agree</p> <p><strong>MAKARAU JCC:</strong> I agree</p> <p><strong>HLATSHWAYO, JCC:</strong> I agree</p> <p><strong>PATEL JCC:</strong> I agree</p> <p><strong>BHUNU JCC:</strong> I agree</p> <p><strong>UCHENA JCC:</strong> I agree</p> <p><strong>MAKONI JCC:</strong> I agree</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/42/2018-zwcc-42.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28716">2018-zwcc-42.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/42/2018-zwcc-42.pdf" type="application/pdf; length=196097">2018-zwcc-42.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/president">President</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/courts-constitutional-practice">Courts (Constitutional practice)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parties">Parties</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/officer-court">Officer (COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sheriff-and-his-deputies">Sheriff and his deputies</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/elections">Elections</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-elections">Appeal (ELECTIONS)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constituencies-and-wards">Constituencies and wards</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/election-petition">Election petition</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/election-petition-time-limits">Election petition time limits</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/electoral-act-chapter-201">Electoral Act [Chapter 2:01]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/presidential-election">Presidential election</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/validity-election">Validity of election</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/voters-roll">Voters roll</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/zimbabwe-electoral-commission">Zimbabwe Electoral Commission</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/affidavits-evidence">Affidavits (EVIDENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/credibility-evidence">Credibility (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/25">Electoral Act [Chapter 2:13]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Sun, 26 Aug 2018 16:48:29 +0000 admin 9093 at https://old.zimlii.org Zimbabwe Development Party v Minister of Justice & Legal Affairs & 3 others (CCZ 11/17, Constitutional Court Application No. CCZ 33/13) [2017] ZWCC 11 (20 June 2013); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2013/11-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE (10)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>ZIMBABWE DEVELOPMENT PARTY </strong></p> <p> </p> <p><strong>v </strong></p> <p> </p> <p><strong>(1) MINISTER OF JUSTICE AND LEGAL AFFAIRS </strong></p> <p><strong>(2) MINISTER OF CONSTITUTIONAL AND PARLIAMENTARY AFFAIRS </strong></p> <p><strong>(3) CHAIRPERSON – ZIMBABWE ELECTORAL COMMISSION</strong></p> <p><strong>(4) MINISTER OF FINANCE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, JUNE 20, 2013</strong></p> <p> </p> <p> </p> <p><strong>Before: CHIDYAUSIKU, CJ, In Chambers</strong></p> <p> </p> <p> </p> <p><em>K Mukwazhe</em>, for the applicant</p> <p> </p> <p><em>F Kuipa</em>, with him,<em> Mr Bhuwu</em>, for the first and fourth respondents</p> <p> </p> <p>No appearance for the second respondent</p> <p> </p> <p><em>T M Kanengoni</em>, with him, <em>C Nyika,</em> for the third respondent</p> <p> </p> <p> </p> <p> </p> <p>When I heard this matter, I gave the following order:</p> <p>“IT IS ORDERED THAT:</p> <p> </p> <p>1.         The matter will be set down on an urgent basis.</p> <p> </p> <p>2.         The Registrar is directed to set this matter on the continuous roll of the Constitutional Court commencing on Wednesday 26 June 2013.</p> <p> </p> <p>3.         The parties are directed to file all their papers by 12:00 noon Monday 24 June 2013”.</p> <p> </p> <p>I indicated that reasons would follow in due course. These are they.</p> <p> </p> <p>This is an urgent application for the urgent set down of the cause under CCZ 25/13 between the same parties. The applicant’s case is as follows.</p> <p> </p> <p>The applicant is a political party registered in terms of the laws of Zimbabwe. It sought to participate in the 2013 harmonised elections. The Constitutional Court had, in <em>Mawarire v Mugabe N.O. and Others</em> CCZ 1/13, held that elections must be held before 31 July 2013. The Constitutional Court, by a majority, made the following order:</p> <p> </p> <p>“In the result, the Court makes the following order -</p> <p> </p> <p>1.         It is declared that the harmonised general elections in terms of s 58(1) of the Constitution of Zimbabwe are due upon the dissolution of Parliament on 29 June 2013.   However, due to the first respondent's failure to issue a proclamation fixing the date for the harmonised elections timeously it is no longer legally possible to hold the harmonised elections on that date.</p> <p> </p> <p>2.         It is declared that the failure by the first respondent to fix and proclaim date(s) for harmonised general elections to take place by 29 June 2013 is a violation of the first respondent’s constitutional duty towards the applicant to exercise his functions as a public officer in accordance with the law and to observe and uphold the rule of law in terms of s 18(1a) of the Constitution.</p> <p> </p> <p>3.         It is further declared that by failing to act as stated in para 2 above, the first respondent has violated the applicant’s rights as a voter and his legitimate expectation of protection of the law entrenched in s 18(1) of the Constitution.</p> <p> </p> <p>4.         <strong>Accordingly, the first respondent be and is hereby ordered and directed to proclaim as soon as possible a date(s) for the holding of Presidential election, general election and elections for members of governing bodies of local authorities in terms of s 58(1) of the Constitution of Zimbabwe, which elections should take place by no later than 31 July 2013.</strong></p> <p> </p> <p>5.         The first respondent shall bear the costs of the applicant.” (The emphasis is mine)</p> <p> </p> <p>The Court delivered this judgment on 31 May 2013. On 6 June 2013 the applicant filed a constitutional application in the Constitutional Court under case no. CCZ 25/13. In that application, the applicant claims that it is not receiving funding in terms of s 67(4) of the Constitution of Zimbabwe (“the Constitution”) and that it requires the same, as provided for in terms of s 155(2)(c) of the Constitution. After filing that application, the applicant filed this urgent chamber application for the urgent set down of the cause in CCZ 25/13.</p> <p> </p> <p>The applicant avers that, in the wake of this Court’s judgment in the <em>Mawarire</em> case <em>supra</em>, the President is due to announce election dates anytime soon. The applicant feels that there are other parties which are benefiting from finances, possibly in terms of the Political Parties (Finance) Act [<em>Chapter 2:</em>11] (“the Act”) while it is not benefitting the same. In short, it is the applicant’s case that should the case not be heard before the President declares elections, the other political parties will have an unfair advantage in the polls. This, according to the applicant, is infringing its constitutional rights.</p> <p> </p> <p>In other words, this case is about whether or not the cause under CCZ 25/13 may be defeated if it is not heard on an urgent basis.</p> <p> </p> <p>The test for urgency is well settled and one can do no better than to quote the <em>locus classicus</em> on the point, <em>Kuvarega</em> v <em>Registrar-General &amp; Anor </em>1998 (1) ZLR 188 (H) wherein Chatikobo J said at p 193F:</p> <p>“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules.”</p> <p> </p> <p> </p> <p>I have no doubt in my mind that when the need to act arose, the applicant did act by filing the cause under CCZ 25/13. Immediately after the judgment in the <em>Mawarire</em> case <em>supra</em>, the applicant filed the application. It is correct that, in the wake of that judgment, the President is due to announce election dates any time soon. This matter, accordingly, is urgent.</p> <p> </p> <p>The urgency is also fortified by the nature of the relief that the application seeks. The applicant, in the main application, seeks an order directing the respondents to avail to it money in order that it finances its election processes. I am not sure whether the application will be able to succeed considering the provisions of s 3 of the Act, which provides as follows:</p> <p> </p> <p>“<strong>3 Financing of political parties</strong></p> <p>(1) Subject to this Act, every political party shall be entitled in each Parliamentary year to receive from the State the sums of money that are payable to it in terms of this Act.</p> <p> </p> <p>(2) The Minister shall, as soon as is practicable, and in any case no later than thirty days after the beginning of the financial year, publish, with the approval of the Minister responsible for finance, a notice in the G<em>azette</em> specifying the total amount of moneys appropriated for all political parties and the amount that shall be paid to each individual political party in terms of this Act<em>.</em></p> <p> </p> <p>(3) For the purpose of subsection (2), each political party whose candidates received at least five <em>per centum </em>of the total number of votes cast in the most recent general election shall be entitled to the same proportion of the total moneys appropriated as the total number of votes cast for its candidates in the election bears to the aggregate of votes cast for all political parties that qualify to be paid moneys in terms of this subsection:</p> <p> </p> <p>Provided that, where a candidate is declared elected in terms of section 46 or 49 of the Electoral Act [<em>Chapter 2:01</em>] without a poll having taken place, he shall be deemed to have received the votes of all the voters registered in the constituency concerned.”</p> <p> </p> <p>The applicant has not challenged the provisions of that section in its main application. Be that as it may, in an application of this kind, where the applicant does not seek any other relief apart from the urgent set down of the main cause, I am not required to determine whether the applicant in the main application has prospects of success but only whether the applicant may suffer irreparable harm if the cause under CCZ 25/13 is not heard and determined as a matter of urgency. The fact of the matter is that the cause under CCZ 25/13 will be heard by the Court anyway, whether as a matter of urgency or otherwise. The question therefore is whether the applicant would obtain any meaningful relief from the matter if it is heard after the election. Certainly not. This, coupled with the fact that the applicant has not delayed in acting, makes a compelling cause to order the urgent set down of the cause under CCZ 25/13.</p> <p> </p> <p>            I am also fortified in my conviction by the fact that the cause under CCZ 25/13 is a fresh cause and will be determined by the Constitutional Court in the first instance. In this regard, I have no doubt in my mind that should the main application not be heard on an urgent basis, it may, if the applicant’s contentions are correct, result in other political parties gaining an unfair advantage in the run up to the polls and the polls themselves. Once the polls are done, the applicant would have no other remedy.</p> <p> </p> <p>I am of the view that the set down of the cause under CCZ 25/13 ought to be treated as a matter of urgency. This is so because should the cause under CCZ 25/13 not be heard as a matter of urgency, the applicant will have no other remedy available to it, as the dates of the elections may be announced and other parties get into full campaign swing, which, not surprisingly, needs funding of some sort in one way or the other. Worse still, the elections may be held and the applicant would not have been allowed the best possible chance to fight for the various political offices it wants to run for.</p> <p>On the basis of the foregoing, I made the order detailed above.</p> <p>The applicant in person</p> <p><em>Civil Division of the Attorney-General’s </em>Office, for the first respondent and fourth respondents</p> <p><em>Nyika Kanengoni &amp; Partners</em>, for the third respondent</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2013/11/2017-zwcc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27417">2017-zwcc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2013/11/2017-zwcc-11.pdf" type="application/pdf; length=208751">2017-zwcc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitution-zimbabwe-2013">Constitution of Zimbabwe 2013</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/elections">Elections</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2013/1">Mawarire v Mugabe N.O. &amp; Others (Const. Application No. 146/2013) [2013] ZWCC 1 (30 May 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2001/4">Political Parties (Finance) Act [Chapter 2:11]</a></div></div></div> Tue, 10 Jul 2018 08:28:41 +0000 admin 8962 at https://old.zimlii.org Shumba & 2 Others v Minister of Justice, Legal & Parliamentary Affairs & 5 Others (CCZ 4/18, Case No. CCZ3/18) [2018] ZWCC 4 (30 May 2018); https://old.zimlii.org/node/8943 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (4)</strong></p> <p> </p> <ul> <li> </li> <li> </li> <li> </li> </ul> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JCC, GARWE JCC, GOWORA JCC, </strong></p> <p><strong>HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC,</strong></p> <p><strong>MAVANGIRA JCC, BHUNU JCC &amp; UCHENA JCC</strong></p> <p><strong>HARARE, MARCH 14, 2018 &amp; MAY 30, 2018 </strong></p> <p> </p> <p> </p> <p><em>T.  Mpofu</em>, for the applicants</p> <p><em>V. Munyoro</em>, for the first, fourth, fifth, and sixth respondents</p> <p><em>T. M. Kanengoni</em>, for the second and third respondents</p> <p> </p> <p> </p> <p><strong>GWAUNZA JCC</strong>:          This is an application in terms of s 85(1)(a) of the Constitution and the background to the matter is as follows: -</p> <p> </p> <p>The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites economic reasons while the third applicant alleges his absence is premised on economic and political reasons. The applicants state that they wish to participate in the country’s harmonized general elections due later this year, 2018, but are precluded from doing so by certain sections of the relevant law. They accordingly seek the following relief: -</p> <p> IT IS DECLARED THAT:</p> <p> </p> <p>1.         The failure to afford voting facilities to the applicants and similarly placed Zimbabweans based abroad be and is hereby declared unconstitutional in that it violates applicants’ rights as enshrined in s 67 and 56 of the Constitution.</p> <p> </p> <p>ACCORDINGLY, IT IS ORDERED THAT:</p> <p> </p> <p>1.         Section 23 of the Electoral Act [<em>Chapter 2:13</em>] be and is hereby declared constitutionally invalid as far as it excludes citizens not resident in Zimbabwe from registering as voters in contravention of s 67 (3) as read with para 2 of the 4th Schedule to the Constitution of Zimbabwe.</p> <p>2.         Section 72 of the Electoral Act <em>[Chapter 2:13]</em> is hereby declared constitutionally invalid as far as it excludes citizens of Zimbabwe who are not in Government service from exercising their right to vote in contravention of s 56 (1), 56 (3), 56 (4) and 67 (3) of the Constitution of Zimbabwe.</p> <p>3.         The respondents are hereby ordered to put in place all appropriate measures to enable the applicants and any other Zimbabweans based abroad to participate in the 2018 Presidential, Parliamentary and Local Authority elections as voters.</p> <p> </p> <p> </p> <p>As is evident from the draft relief sought that, it is the applicants’ case that ss 23 and 72 of the Electoral Act [<em>Chapter 2:13</em>] infringe their right to vote as enshrined in s 67 (3) as read with para 1 (2) of the 4th Schedule to the Constitution. It is also their argument that s 72 of the Electoral Act violates their rights in terms of s 56 (1), (3) and (4) of the Constitution. Section 67 deals with ‘Political Rights’ and its subs (3) confers the right to vote on every Zimbabwean citizen of 18 years and above. Section 56 and the subsections cited relate to equality and non-discrimination.</p> <p> </p> <p>The applicants argue that in terms of s 67 (3) of the Constitution, every citizen over the age of 18 years is entitled to vote regardless of where they reside or resident. In their opinion, the residency requirements set out in s 23 (3) of the Electoral Act (“the Act”) should not and cannot negate the right of any Zimbabwean above the age of 18 years to vote. Because the Act does not facilitate the registration and voting of Zimbabweans based abroad, the applicants contend that the result is a negation of s 67 (3) as read with para 1 (2) of the 4th Schedule to the Constitution. They further aver that subs 23 (3) and 72 of the Act are discriminatory for the reason that they restrict the right to vote only to persons physically in Zimbabwe, to the prejudice of absent voters. They contend that the benefit extended to a certain class of people under s 72 of the Act unjustly discriminates against them because they are not in government service nor are they spouses of such civil servants. The applicants in addition allege that denial of the diaspora vote is contrary to international law, that is, Article 13 of the African Charter on Human and Peoples’ Rights, ss 4.1.1, 4.1.8 and 5.1.8 of the SADC Principles and Guidelines Governing Democratic Elections, and Article 25 of the International Covenant on Civil and Political Rights.</p> <p> </p> <p>Mr<em> Mpofu </em>for the applicants further argues that the right to vote given under s 67 (3) of the Constitution does not depend on anything other than citizenship and age. He also relied on s 155 (1)(c) of the Constitution which he described as an ‘executionary provision’. The contention in this regard is that all voters are equal, regardless of where a person is residing for a particular period. Mr<em> Mpofu</em> further contends that the right accorded in the Constitution cannot be attenuated by legislation and that, in terms of s 35 (3)(a) of the Constitution, the State is obliged to ‘follow’ its citizens wherever they are, this obligation not being informed by the location of the citizen but by the citizenship of the person. In terms of s 67 (3) as read with the 4th Schedule to the Constitution, it is further argued, everyone not disqualified from voting is entitled to vote. Citizens in the diaspora are not disqualified from voting. The 4th Schedule is different from its equivalent under the erstwhile Constitution, and does not detract from ss 67, 35 and 155 of the Constitution. He postulates that the according of a right to vote can only have meaning if it is given to a person who would otherwise not have voted. Once a citizen remains outside the constituency for the relevant period, there is no provision for the equitable use of discretion by the Zimbabwe Electoral Commission. Reference was made to the fact that South Africa, Mozambique, Senegal, Rwanda, Ghana, Kenya, Botswana, Namibia, India, United States of America and Australia all grant their citizens in the diaspora the right to vote. Finally, Mr<em> Mpofu</em> argues that there was no need to amend the Constitution but that the government needed to amend its attitude.</p> <p> </p> <p>The second and third respondents filed papers indicating that they would abide by the order of the Court. The first, fourth, fifth and sixth respondents opposed the application and did so, generally, on the basis that anyone who wishes to exercise their right to vote can bring themselves into the confines of the law as currently worded and exercise the right to vote. They also allege that the impugned provisions are not restrictive. As regards s 72 of the Act, the first, fourth, fifth and sixth respondents allege that it is a justified differentiation between government employees outside the country and those pursuing their own interests abroad because government employees are required to be outside Zimbabwe on the polling day. They also allege that there is no obligation on the State to establish polling stations outside Zimbabwe. The first, fourth, fifth and sixth respondents also contend that the impugned sections are administrative in nature and are consistent with the Constitution.</p> <p> </p> <p>Mrs<em> Munyoro </em>for the first, fourth, fifth and sixth respondents argues in addition that the arguments by Mr<em> Mpofu</em> have already been dealt with in<em> Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others </em>CCZ 12/17. Her position is that the provisions under the erstwhile Constitution and the provisions in the current Constitution are similar. Section 67 (3) is subject to the rest of the Constitution. A person has the right to be retained only on the ‘most appropriate roll’. The 4th Schedule provides for an additional requirement, of residency. The Constitution does not provide for external constituencies. There is a presumption of coherence of the Constitution and the provisions of the Constitution should not be read in isolation. Further, that the residency requirements have constitutional ‘parentage’ and are not unreasonable requirements. A person can only lose their right to vote in terms of s 23 (3) as read with s 33 of the Act. Section 33 provides for the procedural steps to be taken before a person is disentitled to vote. In order to be entitled to vote in a constituency, a person has to have an interest in the relevant constituency and this is only safeguarded by the residency requirement. Mrs<em> Munyoro</em> contends that s 72 of the Act is justified for the reason that it relates to persons reassigned by the government. Persons abroad on government service cannot vote in the hosting nations but applicants may be able to vote in their countries of residence depending on their circumstances. Notwithstanding that there are other countries which permit the diaspora vote, it is her contention that Zimbabwe has to be guided by the wording of its Constitution, which clearly did not anticipate the diaspora vote. Thus, if the applicants feel strongly about the diaspora vote, they should petition Parliament to amend the Constitution.</p> <p> </p> <p>Before I consider the real dispute between the parties, I consider it pertinent to comment on a part of the relief sought by the applicants, that is, para 1 of the draft order. The applicants purport to seek relief on their own behalf and that of ‘other Zimbabweans living and working abroad ….’  This application has been filed in terms of s 85 (1)(a) of the Constitution, not under s 85 (1)(c) or (d), which permit an applicant to seek relief on behalf of other persons besides him or herself.  During the hearing<em>, </em>Mr<em> Mpofu</em> for the applicants properly conceded that the applicants could not validly seek this relief.</p> <p> </p> <p>In resolving this matter, it is apparent that four questions arise for determination, that is: -</p> <ol> <li>Whether the Constitution of Zimbabwe, directly or indirectly, allows for the ‘diaspora vote.’</li> <li>Whether s 23 of the Act violates s 67 (3) of the Constitution.</li> <li>Whether s 72 of the Act violates subs 56 (1), (3) and (4) of the Constitution.</li> </ol> <p>4.  Whether international conventions and electoral laws have any influence in the        interpretation of our electoral laws as currently phrased.</p> <p> </p> <p><strong>Whether the Constitution of Zimbabwe directly or indirectly, allows for the ‘diaspora vote’</strong></p> <p>The papers before the court point to one major point of dissent between the parties, and that is whether or not the Constitution, in the way it is worded in relevant parts, or in the import of such wording, envisages or anticipates a situation where Zimbabweans based abroad by dint of their own volition, can vote during the country’s harmonized general elections. In other words, does the Constitution allow or not allow the so-called diaspora vote?  The applicants’ view is in the affirmative while the respondents firmly subscribe to the opposite view.</p> <p> </p> <p>My view is that this is the issue that must be determined first before one can consider the question of whether or not the impugned provisions of the Electoral Act violate the relevant provisions of the Constitution. This is particularly so where it is alleged, as <em>in casu,</em> that certain statutory provisions violate a particular constitutional provision, and where the meaning of such provision is the subject of dispute between the parties.</p> <p> </p> <p>Section 67 deals with ‘Political Rights’ and in its subs (3) reads as follows:</p> <p>“67 Political rights</p> <p>(1) ….</p> <p>(2)       ...</p> <p>(3)        <strong>Subject to this Constitution</strong>, every Zimbabwean citizen who is of or over            eighteen years of age has the right—</p> <p>(a)        to vote in all elections and referendums to which this Constitution or any   other law applies, and to do so in secret; and</p> <p>(b)       to stand for election for public office and, if elected, to hold such   office.” (<em>my emphasis</em>)</p> <p> </p> <p>Paragraph 1(2) of the 4th Schedule to the Constitution provides as follows:</p> <p>“(2)      The Electoral Law may prescribe additional residential requirements to      ensure that voters are registered on the most        appropriate voters roll, but     any such requirements must             be consistent with this Constitution, in           particular with s 67.”</p> <p> </p> <p> </p> <p> As is apparent from the above, subs (3) confers the right to vote in all elections, on ‘<strong>every Zimbabwean who is of or over eighteen years of age’</strong>. This right however is not absolute, since the same provision is prefixed with the words <strong>‘Subject to this Constitution’, </strong>whose effect is to limit this very right. The clear meaning of this provision is that it must not be read in isolation but must ‘subject’ itself to other provisions of the Constitution that have a bearing, no matter how tangential, on the issue of electoral voting. The provision must in other words, cohere or be consonant with all such other constitutional provisions. Of these other provisions, the applicants specifically mention para 1 (2) of the 4th Schedule to the Constitution. This provision, as already indicated, provides leeway for ‘the Electoral Law’ to prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll. However, any such requirements must be consistent with the Constitution, in particular with s 67. (It hardly needs mention that whether or not such residential requirements violate s 67 will depend on how that section itself is interpreted.)</p> <p> </p> <p> Paragraph (2) follows directly after para 1 (1) and must, logically, not be read independently from it, as the appellants seek to do. Doing so is to interpret para 1 (2) out of context, with the possible result of giving it an unintended, if not erroneous, import.</p> <p> </p> <p>The whole of para 1 therefore reads as follows:</p> <p><strong>1. Qualifications for registration as voter</strong></p> <p> </p> <p>“(1)      Subject<strong> to subparagraph</strong> (2) and to para 2, a person is <strong>qualified to be</strong> <strong>registered as a voter on the voters roll of a constituency </strong>if he or she—</p> <p>(a) is of or over the age of eighteen years; and</p> <p>                        (b) is a Zimbabwean citizen.</p> <p>             (2)       The Electoral Law may prescribe additional residential requirements to ensure                  that voters are registered on the most appropriate voters roll, but any such                                 requirements must be consistent with this Constitution, in particular with s 67.”                        (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>If this whole provision is read together with s 67 (3), as it should since it addresses the same issue, the simple meaning is that while para 1 (1) gives the right to vote to every Zimbabwean citizen of or over 18 years of age, that right alone is not enough. It merely qualifies the citizen for registration as a voter, something that he is then required to do. The registration must be effected on a voter’s roll, and that voters’ roll must relate or ‘belong’ to, a given constituency. However, by virtue of para 1 (2) additional residential qualifications may be prescribed, and these would, as it were, complete the package of voting requirements to be met before a citizen is allowed to vote. This point was in my view correctly made in the <em>Bukaibenyu case</em> (<em>supra</em>) where MALABA DCJ (as he then was) had this to say in relation to Zimbabwe’s electoral system:</p> <p>“Under the Zimbabwean electoral system, a voter votes not only as a citizen of this country but also to protect his or her rights and interests as a resident of the constituency in which he or she is registered.”</p> <p> </p> <p> </p> <p>It should be noted that para 1 (1) is made ‘subject to’ para 1 (2). The import of this prefix in my view is simply to restate the fact that the requirements for eligibility to vote as outlined in para 1 (1) must take on board any additional residential requirements that may be prescribed in terms of para 1 (2). The caution contained in para 1 (2) against these additional requirements violating the political rights guaranteed in s 67, especially subs (3) thereof, is not to be interpreted narrowly, since this subsection is made ‘subject to’ other provisions of the Constitution that deal with voting rights.</p> <p> </p> <p>The clearest suggestion as to what ‘constituency’ for purposes of voting in general elections refers to, is given in s 160(1) of the Constitution. The section falls under the heading ‘DECLARATION OF ELECTORAL BOUNDARIES’, and the subtitle ‘<strong>Number of constituencies and wards’. </strong>It reads as follows: -</p> <p>“(1)      For the purpose of electing Members of Parliament, the Zimbabwe Electoral                                               Commission must <strong>divide Zimbabwe</strong> into 210 constituencies.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>It is not in dispute that Harmonised General Elections are held in order for the electorate to vote among others, for Members of Parliament, a President and local Government representatives of their choice. There can, in my view, therefore, be no doubt that the reference to ‘constituency’ in para 1 (1) of the 4th Schedule relates to any one of the 210 constituencies which ZEC is constitutionally mandated to divide Zimbabwe into.</p> <p>To facilitate the registration of a voter on the most appropriate voters’ roll of a constituency, para 1 (2) of the 4th Schedule gives the discretion to prescribe additional residential requirements to the Electoral Law. Clearly in my view, the ‘most appropriate voter’s roll’ envisaged in this paragraph must be related to, and not exist outside, the specific constituency applicable to the voter in question. The respondents argue effectively that one measure of this appropriateness is the voter’s physical or ‘deemed’ residency in the constituency concerned. The ‘deemed’ residency applies, with respect, to postal votes provided for under s 72 of the Electoral Act, discussed later in this judgment. Such residency must be related to a constituency and the postal voter must be registered on its voters’ roll before he can vote from wherever, in or outside Zimbabwe, he might be located.</p> <p> </p> <p>The constituency-based residential requirements for voting, I find, extend to the election of the President and Vice Presidents. Mr<em> Mpofu</em> argued that if the residential requirements are constitutional, they would only relate to parliamentary and local government elections. He contended that with regard to presidential elections, the residential requirements are of no consequence because there is only one constituency in presidential elections. I am not persuaded by this argument in view of the provisions of s 92 of the Constitution which reads as follows: -</p> <p>“92   Election of President and Vice Presidents</p> <p> </p> <p>(1)        The election of a President and two Vice-Presidents             must take place within the             period specified in s 158.</p> <p>(2)        Every candidate for election as President must nominate two persons to stand for election jointly with him or her as Vice-Presidents, and must            designate one of          those persons as his or her candidate for first Vice-President and the other as his or her candidate for second Vice-President.</p> <p>(3)        The President and the Vice-Presidents are <strong>directly   elected jointly by registered voters throughout Zimbabwe,</strong> and the procedure for their election is as prescribed in the Electoral Law<strong>.</strong></p> <p><strong>(4)        The qualifications for registration as a voter and for voting at an election of a President and Vice-Presidents are set out in the 4th Schedule.</strong></p> <p>(5)        The election of a President and Vice-Presidents must take place concurrently         with every general election of members of Parliament, provincial councils and      local authorities.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>In terms of s 92 (4), the qualifications for registration as a voter and voting are prescribed in the 4th Schedule to the Constitution. This is the very same Schedule that speaks to a constituency-based election and directs one to s 23 of the Electoral Act. One significant provision of s 92 is para (3) which makes reference to registered voters ‘throughout Zimbabwe’. This phrase delineates geographical parameters for the Presidential election and since the election is held concurrently with the rest of the harmonised elections, it (the phrase) is in perfect harmony with s 160 of the Constitution which relates to electoral boundaries. The clear meaning is that the Presidential election is to be conducted in Zimbabwe and in order for a person to participate in it, he has to be in Zimbabwe or deemed so, and, also, must be registered as a voter in terms of the 4th Schedule to the Constitution.</p> <p> </p> <p>When the foregoing is considered, it becomes evident that the contention made for the applicants that the right to vote given under s 67 (3) of the Constitution does not depend on anything other than citizenship and age, is not legally sustainable. While it is in some cases correct, as contended for the applicants, that a right accorded in the Constitution cannot be attenuated by legislation, <em>in casu</em>, it is the Constitution itself which appears to attenuate in a later provision, a right that it accords in an earlier one. Further, the argument by Mr<em> Mpofu</em> that in terms of s 35(3) of the Constitution, the state is ‘obliged’ to follow its citizens wherever they are in the world to enable them to vote, and that its obligation to do so is not informed by the location of the citizen but his being a citizen, finds no support in the Constitution. It is important to note that while a right granted by the Constitution may not always be limited through legislation, legislation itself cannot confer rights which the Constitution, in related provisions, specifically excludes.</p> <p> </p> <p>Other provisions of the Constitution touch directly or indirectly on the issue of elections and the right of Zimbabwean citizens to participate in them. Section 124 relates to the composition of the National assembly and mentions 210 members elected from the same number of constituencies ‘into which Zimbabwe is divided’.  Section 161 refers to delineation of electoral boundaries ‘into which Zimbabwe is divided’.  With regards to s 155 the applicants argue that the provision entitles them to cast their votes from abroad. The section provides as follows:</p> <p><strong>155 Principles of electoral system</strong></p> <p> </p> <p>(1)       Elections, which must be held regularly, and referendums, to which this Constitution applies must be—</p> <p>(<em>a</em>) peaceful, free and fair;</p> <p>(<em>b</em>) conducted by secret ballot;</p> <p>(<em>c</em>) based on universal adult suffrage and equality of votes; and</p> <p>(<em>d</em>) free from violence and other electoral malpractices.</p> <p>(2)       The State must take all appropriate measures, including legislative measures, to     ensure that effect is given to the principles set out in subs (1) and, in particular, must—</p> <p>(<em>a</em>)       ensure that all eligible citizens, that is to say the citizens <strong>qualified under   the 4th  Schedule, are registered as voters;</strong></p> <p>(<em>b</em>)       ensure that every citizen who <strong>is eligible to</strong>    vote in an election or referendum has an opportunity to cast a vote, and must facilitate voting             by persons with disabilities or special needs;</p> <p>(<em>c</em>)        ensure that all political parties and candidates contesting an election or       participating in a referendum have reasonable access to all            material           and information necessary for them to participate effectively;</p> <p>(<em>d</em>)        provide all political parties and candidates    contesting an election or participating in a referendum with fair and equal access to       electronic and print media, both public and private; and</p> <p>(<em>e</em>)       ensure the timely resolution of electoral disputes.</p> <p> </p> <p> </p> <p>Section 155 (1)(c) relates to ‘universal adult suffrage and equality of votes’. The question is whether the provision necessarily means that every person without further requirements for qualification is entitled to vote. It appears to me that the answer, in the negative, lies in subs 2 (a) of the same provision. It restates the requirement for every voter to be qualified to vote in terms of the 4th Schedule to the Constitution. Equality of votes, in my view, simply relates to the fact that no vote is more important or weightier than the other. Section 155 is still subject to the rest of the Constitution and in particular, the 4th Schedule and therefore, the constituency-based residential requirements are still applicable. Section 155 (2)(b) clearly provides that every citizen eligible to vote must be availed the chance to vote. The key is in the eligibility to vote. The section itself is a secondary provision. It only applies after a person has brought himself within the strictures of s 67 and the 4th Schedule. I find in the result that, since it cannot stand alone, s 155 does not assist the applicants’ case.</p> <p> </p> <p>It is trite that the Constitution is a legal instrument which falls to be interpreted, generally, according to the same principles that govern the interpretation of any other legislation. In this respect it is important to note, as stated in the case of <em>Rushesha and Others v Dera and Others </em>CCZ 24/17<em>,</em> that the Constitution evinces one singular document, one singular law which is consistent within itself. This principle is aptly explained as follows in <em>Tsvangirayi v Mugabe and Others </em>CCZ 24/17:</p> <p>“The preferred rule of interpretation is that all relevant provisions having a bearing on the subject for interpretation must be considered together as the whole in order to give effect to the objective of the Constitution, taking into account the nature and scope of the rights, interests and duties forming the subject matter of the provisions.”</p> <p> </p> <p> </p> <p>In the South African case of <em>State v Zuma and Others</em>, 1995 (2) SA 642 (CC), cited in the respondents’ heads of argument, it was stated as follows:</p> <p>“…. We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to values the result is not interpretation but divination…”</p> <p> </p> <p>When these principles are applied to the circumstances of this case, it becomes evident that an interpretation of all the provisions of the Constitution as discussed above, that deal with the question of who may vote, where and how, makes it abundantly clear that the Zimbabwean electoral system is constituency-based. The constituencies, in terms of s 160 of the Constitution are 210 in number and are located within the boundaries of the country. The Constitution does not mandate the setting up of constituencies outside the borders of Zimbabwe. This in my view directs attention to what the true intention of the Legislature was in this respect. It appears to be clear that the exclusion of the diaspora vote, as can be evinced from the constitutional provisions referred to, was consciously contrived and therefore intended. As stated in <em>Zuma’s case</em> (<em>supra)</em> the language used by the Legislature in effecting this result is not one that this Court can ignore in favour of values, no matter how meritorious, pertaining to the desirability or otherwise of permitting the diaspora vote. This is because the language is clear in its meaning and does not admit of any ambiguity.  In its wisdom and for reasons that are not apparent, the Legislature chose to expressly exclude Zimbabwean citizens not in government service but based abroad, from voting in the country’s harmonised elections. Had the intention been not to so exclude this group of citizens from voting, the Legislature would have clearly stated so.</p> <p> </p> <p>This Court, dealing with constitutional interpretation in <em>Rushesha and Others v Dera and Others(supra),</em> made the point that even what is not said has its own implications.  The court remarked:</p> <p>“The interpretation of a statute and indeed a Constitution is based not only on what the provision says but also on what the provision does not say….”</p> <p> </p> <p> </p> <p>That the exclusion of the diaspora vote might have been intended is further demonstrated by the fact that this is not the first time that the issue of the diaspora vote has been brought before this Court. There is a presumption that Parliament is aware of court judgments, (<em>Dodson v. Potomac Mack Sales &amp; Serv., </em>241 Va. 89, 94, 400 S.E.2d 178, 180 (1991);<em> Waterman v. Halverson, </em>261 Va. 203, 207, 540 S.E.2d 867, 869 (2001)<em>. </em>When enacting laws that might impact on a certain area, the Legislature is presumed to be aware of the judgments of the courts on those issues. As far back as 2002 and 2005, in the cases of Registrar<em> General of Elections &amp; Ors v Morgan Tsvangirai </em>2002 (1) ZLR (S)<em> and Madzingo and Others v Minister of Justice and Others </em>2005 (1) ZLR 171 (S) respectively, this Court held that the diaspora vote is not provided for in the law and that the impugned sections were not unconstitutional. The current Constitution was enacted in 2013, by which time the Legislature already knew that the law did not provide for a diaspora vote. However, no provision was inserted into the Constitution to expressly reverse this <em>status quo</em>.</p> <p> </p> <p>Against this background, the only interpretation that accords with the Constitutional structure is that there is no legislative framework set out therein, for the diaspora vote.</p> <p> </p> <p>Bearing the foregoing in mind I now turn to consider the other questions raised by this application.           </p> <p> </p> <p><strong>Whether ss 23 and 72 of the Act violate s 67 (3) of the Constitution</strong></p> <p>Section 23 of the Electoral Act, which is one of the impugned provisions provides:</p> <p><strong>“23 Residence qualifications of voters</strong></p> <p> </p> <p>Subject to the Constitution and this Act, in order to have the requisite residence qualifications to be registered as a voter in <strong>a particular constituency</strong>, a claimant must be resident in that constituency at the date of his or her claim:</p> <p> </p> <p>Provided that if a claimant satisfies the Registrar-General of Voters that he or she is or intends to be a candidate for election as a member of Parliament for a particular constituency in which he or she is not resident, the claimant may be registered as a voter in that constituency.</p> <p>[Subsection amended by Act 17 of 2007]</p> <p>(2)       For the purposes of subsection (1), a claimant shall be deemed to be residing in     a constituency while he or she is absent therefrom for a temporary purpose.</p> <p>(3)       A voter who is registered on the voters roll for a constituency, other than a voter    who has been     registered in that constituency in terms of the proviso to       subs (1), shall not be entitled to have his or her name retained on such roll if,            for a continuous period of twelve months, he or she has ceased to reside in that     constituency:</p> <p>Provided that nothing in this subsection shall prevent his or her name from being struck off such voters roll—</p> <p>            (a)        on his or her being registered in another constituency; or</p> <p>            (b)        if he or she becomes disqualified for registration as a voter.</p> <p>(4)       The Chief Elections Officer, Registrar-General of Voters, any constituency registrar or any officer of the Commission may demand from any voter who is registered on the voters roll for a constituency proof of identity or proof of residence in that constituency or both of the foregoing.</p> <p>(5)        For the purposes of subsection (4), the Commission may     prescribe documents that shall constitute proof of identity and additionally, or alternatively,           proof of residence:</p> <p>Provided that the prescribing of such documents shall not preclude a person from proving his or her identity or residence by other means” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>Section 23 of the Act deals with residency requirements for eligibility to participate in elections as a voter. It is an additional requirement to the contents of para 1(1) of the 4th Schedule to the Constitution. The power to make residency requirements is derived from the Constitution itself. It is apparent that the concept of additional residential requirements is lawful and constitutional. What has to be determined is whether the residency requirements under s 23 of the Act contravene s 67 (3) in their extent. In view of my determination that the import of constitutional provisions dealing with national elections (s 67(3) included) is to create a constituency-based electoral system, I do not find that the provision in any way violates s 67(3). As argued for the respondents, the provision is administrative in nature and serves to facilitate implementation of the constituency-based electoral process. An ‘appropriate roll’ for the purposes of para 1(2) of the 4th Schedule relates, therefore, to a roll of the constituency in which the voter actually resides.  Since the Constitution does not envisage constituencies beyond the borders of Zimbabwe, it follows that no voter’s roll can exist outside the 210 constituencies into which Zimbabwe is divided for voting purposes.</p> <p> </p> <p>It should be noted that the residency requirement does not affect only the diaspora vote, since it also affects those who live in Zimbabwe. For example, a person who has ceased to live in Mount Pleasant for the relevant period will not be allowed to vote in Harare North elections notwithstanding that they still live in Zimbabwe, <em>albeit</em> in a different constituency, eg. Harare West. In this regard, the residency requirements are not directed only at the diaspora vote.</p> <p> </p> <p>In any event, the applicant’s case was premised on an interpretation of the constitutional provisions in question that allowed for the diaspora vote and made them eligible to vote. Their case is not based on a challenge to the constituency-based nature of our electoral system. Such a challenge can, in my view, only be mounted in the context of lobbying the Legislature to amend the Constitution so as to allow the diaspora vote. This is in fact what the respondents <em>in casu </em>urge the applicants to do. However, given that a determination contrary to their interpretation of the Constitution has been made, I find that the proverbial rug has, so to speak, been pulled from under the applicants’ feet.</p> <p> </p> <p>This point is accordingly decided against the applicants.</p> <p> </p> <p><strong>Whether s 72 of the Electoral Act violates s 56 (1), (3) and (4) of the Constitution</strong></p> <p> </p> <p>The constituency-based nature of the electoral system is maintained in relation to the postal vote.</p> <p> </p> <p>Section 72 provides as follows:</p> <p> </p> <p>“72 Persons who may vote by post</p> <p> </p> <p>Where an election is to be held <strong>in a constituency, a person who is registered as a voter on the roll for that constituency shall be entitled to vote by post</strong> in terms of this Part if, on all polling days in the election, he or she will be outside Zimbabwe—</p> <p> </p> <p>(a)        on duty as a member of a disciplined force or as an electoral officer; or</p> <p>(b)       on duty in the service of the Government; or</p> <p>(c)        as the spouse of a person referred to in para (b);</p> <p>and so unable to vote at a polling station in the constituency.</p> <p>[Section substituted by Act 6 of 2014]" <em>(my emphasis)</em></p> <p> </p> <p> </p> <p>In terms of this provision, the starting point is an election due to be held in a given constituency. Next is the person who is registered on the voters’ roll of that constituency. Then follows the question of whether or not, on the day of voting, such voter is physically present not only in Zimbabwe, but within the constituency in order to cast his vote.  Only if he is absent from the country will he be able to cast his vote by post. However, such person’s absence must be attributable to the call of duty in the service of the State or to being the spouse of such a person. This in my view points to an attitude on the part of the Legislature that this type of person would be interested in the affairs of his constituency and would have voted but for his absence due to the State posting abroad. Accordingly, the person is deemed to be resident in his constituency for purposes of voting in the general elections.  Given the constituency based nature of the electoral system as set out in the Constitution, there can be no doubt that this person would not be able to cast his vote by post if he is not registered on the voters’ roll of his constituency.</p> <p> </p> <p>The applicants do not assert that they are registered on the voters’ roll of any constituency in Zimbabwe, a constitutionally mandated pre-requisite for casting the vote through the post, and indeed through any other means. They allege a violation of their rights under s 56 of the Constitution, on the basis that s 72 of the Electoral Act bestows the privilege of voting outside the boundaries of Zimbabwe to a certain class of people –State employees – in a manner that excludes them from voting and is also ‘highly discriminatory’ against those based in the diaspora who are not State employees or their spouses. The applicants allege this also violates their right to protection of the law.</p> <p> </p> <p>Section 56 of the Constitution provides, in part: -</p> <p><strong>“56 Equality and non-discrimination</strong></p> <p>(1)        All persons are equal before the law and have the     right to equal protection and benefit of the law.</p> <p>(2)        Women and men have the right to equal treatment,   including the right to equal opportunities in political, economic, cultural and social spheres.</p> <p>(3)        Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour,      tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom,         culture, sex, gender, marital            status, age, pregnancy, disability or economic or social             status, or whether they were born in   or out   of wedlock.</p> <p>(4)       A person is treated in a discriminatory manner for the purpose of subsection (3) if—</p> <p>(<em>a</em>)       they are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected; or</p> <p>(<em>b</em>)       other people are accorded directly or indirectly a privilege or advantage which they are not accorded.”</p> <p> </p> <p> </p> <p>The right to equal protection of the law was discussed by ZIYAMBI JCC in <em>Nkomo v Minister of Local Government, Rural &amp; Urban Development &amp; Ors</em> 2016 (1) ZLR 113 (CC) when the learned judge, at 118H-119B found:</p> <p>“The right guaranteed under s 56 (1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position.  It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected. In order to found his reliance on this provision the applicant must show that by virtue of the application of a law he has been the recipient of unequal treatment or protection that is to say that certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>The applicants have shown that there are other citizens, that is, State officials, who are allowed to use postal voting, which they are denied by law. What they have not shown is that they are in the same position as those State officials. In this respect I find to be persuasive the following argument by the respondents, found in their heads of argument:</p> <p>“… s 72 applies to persons who are ordinarily resident in     Zimbabwe and are      registered voters who are actually on     the voters’ roll. They are however outside the           country because their duties require that they be outside Zimbabwe on polling day           (and) are permitted in terms of s 72 to vote   by post. This is a class of people      who have themselves not made a conscious decision to leave the country but do (<em>sic</em>)             so on national duty. They are a different class of persons from applicants   who have         <strong>voluntarily left the country, are not ordinarily resident in Zimbabwe, are not         registered and have no constituency</strong>. The two are not in similar       positions and   cannot be compared.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>As already determined, in terms of the Constitution, no person may vote without being registered on the voter’s roll of a constituency. The applicants would be automatically excluded from voting if they are not so registered, and if they are not resident (or deemed to be so) in such constituency for the time periods specified in s 23 of the Act. A person entitled to postal voting is deemed to be resident in the constituency for which he or she is enrolled as a voter, see <em>Madzingo and Others v Minister of Justice and Others </em>2005 (1) ZLR 171 (S)<em>. </em>This is in terms of s 23 (2) of the Electoral Act. It is that deeming which entitles them to utilise postal voting. They are so deemed because, while they are on national assignments, their stay outside their constituency is regarded as temporary. The situation is different as regards people who have left their constituencies on their own accord. If they do not stay in their constituency as is required by s 23 of the Electoral Act, they are taken to have left their constituency for a duration which is not temporary.  They are not deemed resident in that constituency and for that reason, cannot vote in the constituency.</p> <p>  Once it is found, as I have done, that the residency requirements under s 23 are not unconstitutional in that they do not interfere with the constituency-based nature of our electoral system, it must follow that there is no obligation on the part of the Zimbabwe Electoral Commission to set up polling stations outside the country. The same point has been stressed before, by this Court. In <em>Registrar General of Elections &amp; Ors v Morgan Tsvangirai </em>2002 (1) ZLR (S) the court found that electoral authorities are not under a legal duty to provide machinery in foreign countries to record votes of Zimbabwean citizens registered as voters who live there and are unable to attend personally at polling stations in their constituencies on polling day. The exception was the category of persons specified under s 72 of the Act. The applicants have not challenged the correctness of that judgment.</p> <p> </p> <p>In the <em>Bukaibenyu </em>judgment at page 9, MALABA DCJ (as he then was) said in part: </p> <p>“The Constitution did not place an obligation upon the State to make arrangements for voters who for personal reasons were unable to attend at the polling stations to vote.”</p> <p> </p> <p> </p> <p>I find that the applicants have not established, as correctly argued for the respondents, that they are in a similar position as the persons referred to in ss 72 and 73 of the Act. They have not argued that they remain ordinarily resident in their constituencies in Zimbabwe. As already determined, residency in a constituency located in Zimbabwe (<em>actual or deemed</em>) is a <em>sine qua non</em> for eligibility to vote in national elections.</p> <p> </p> <p>It may be observed in this respect that residency requirements are not peculiar to Zimbabwe, as other jurisdictions have had occasion to address the same issue. The Court of Appeal for Ontario (Canada) dealt with the rationale for and the constitutionality of, residency requirements in the Canada Elections Act in <em>Frank v Canada (Attorney General)</em> 2015 ONCA 536. Strathy C.J.O., with whom BROWN JA concurred, found in part:</p> <p>“… [5] Canada’s political system is based on geographically defined electoral districts. The citizens living in each residency elect a Member of Parliament to represent them. Their representative serves the interests of the community, speaks for the community and participates in making laws that affect the daily activities of all residents of the community. The electorate submits to the laws because it has had a voice in making them. This is the social contract that gives the laws their legitimacy.</p> <p>[6] Permitting all non-resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives. This would erode the social contract and undermine the legitimacy of the laws. The legislation is aimed at strengthening Canada’s system of government and is demonstrably justified in a free and democratic society. While the impugned legislation violates s. 3 of the Charter, it is saved by s. 1. Denying the right to vote to non-resident citizens whose absence exceeds five years is a reasonable limit on the Charter right….</p> <p>[123] Residence is a determinant of voter eligibility in all provinces and territories, with most requiring a minimum period of residence. The Saskatchewan Court of Appeal, the Yukon Territory Court of Appeal and the Nunavut Court of Justice have found a rational connection between these residence requirements and the fairness and integrity of the electoral process: <em>Storey v. Zazelenchuk</em> (1984), 1984 CanLII 2426 (SK CA), 36 Sask.R. 103 (C.A.); Anawak v. Nunavut (Chief Electoral Officer), 2008 NUCJ 26 (CanLII), 172 A.C.W.S. (3d) 391; Re Yukon Election Residency Requirements (1986), 1 Y.R. 23 (C.A.) ….”</p> <p> </p> <p> </p> <p>It is not in dispute that the provisions challenged effectively hamstring citizens who are resident in the diaspora. Not only these, but also those who have ceased to reside in their registered constituencies but continue to live elsewhere in Zimbabwe. There is no doubt therefore that the provisions effectively make voting for those resident in the diaspora, who are not State employees, harder. Regardless, in interpreting the Constitution, the court must uphold the overall principles upon which the Constitution, in relevant parts, is founded. The right to vote is not more important than the need to safeguard the legitimacy of elections in the case where only those who are relevant to a certain constituency are given the opportunity to vote in a particular election. The electoral system is constituency based and the constitutionally mandated residence requirement is the safeguard that is in place to ensure that the electoral system maintains this character. This objective is one that furthers compliance, and therefore resonates, with the Constitution. The contrary interpretation favoured by the applicants would in my view result in undermining the principle that Zimbabwean elections are constituency based. As already determined, this principle emerges from a consideration of the relevant provisions of the Constitution as a whole, especially s 67, s 93, s 155, s 161 and the 4th Schedule.</p> <p> </p> <p>Even if it were to be assumed that the applicants were in a similar situation with the State employees mentioned in s 72 of the Act, based solely on the fact that they are all Zimbabwean citizens over 18 years of age and resident abroad, it is evident that the Legislature chose to treat these two categories differently. It has been held that this type of differentiation does not always amount to discrimination.  MALABA CJ, in <em>Greatermans Stores (1979) (Private) Limited t/a   Thomas   Meikles   Stores and Another v Minister of Public Service, Labour and Social Welfare and Another</em> CCZ 2/18 dealt with the difference between discrimination and differentiation in the following terms:</p> <p>“In<em> V.M. Syed Mohammad and Company (supra)</em> a complaint was made to the effect       that an impugned Act singled out for taxation purchasers of certain specified         commodities only but left out purchasers of all other commodities. In interpreting the        right to equal protection of the law, the court stated as follows:</p> <p> </p> <p>“It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some <em>differentia </em>having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Chiranjitlal Chowdhury's case ([1950] S.C.R. 869), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins.””</p> <p> </p> <p> </p> <p>The differentiation in this case is based on the fact that the categories of persons given a privilege in terms of s 72 of the Act are persons who have been posted to stations outside the country by the State to conduct State business. The applicants are people who have left Zimbabwe of their own accord. The rationale for the differentiation is that State servants cannot be disadvantaged on the basis of where they have been posted. They have been assigned by the State to take up positions at stations outside Zimbabwe in order to conduct the business of the State.  The latter is accordingly under an obligation to ensure that they are not prejudiced of their right to vote. The differentiation in my view meets the constitutionality test.</p> <p> </p> <p>Accordingly, this point is determined against the applicants.</p> <p> </p> <p><strong>The influence, if any, of International Conventions and electoral laws</strong></p> <p>The first applicant approached the African Commission on Human and Peoples’ Rights in 2012 arguing that Zimbabwe was in violation of Articles 2, 3 (1), (2), 9 and 13 (1) of the African Charter on Human and Peoples’ Rights for the reason that the erstwhile Constitution as read with s 72 of the Electoral Act restricted his right to vote. The African Commission gave the following order:</p> <ol> <li>That Zimbabwe allows Zimbabweans living abroad to vote in the referendum of 16 March 2013 and the general elections thereafter, whether or not they are in the service of the Government;</li> <li>That Zimbabwe provides all eligible voters, including Gabriel Shumba the same voting facilities it affords to Zimbabweans working abroad in the service of the Government; and</li> <li>That Zimbabwe takes measure to give effect to its obligations under the African Charter in accordance with Article 1 of the African Charter, including in areas of free participation in government.</li> </ol> <p> </p> <p> </p> <p>Section 327 (2) of the Constitution provides as follows:</p> <p> </p> <p>“(2)      An international treaty which has been concluded or executed by the President      or under the President’s authority—</p> <p>(<em>a</em>) does not bind Zimbabwe until it has been approved by Parliament; and</p> <p>            (<em>b</em>) does not form part of the law of Zimbabwe unless it has been incorporated             into the law through an Act of Parliament.”</p> <p> </p> <p>The applicants argue that Zimbabwe is bound to implement the findings of the African Commission. However, the country has not domesticated the African Charter on Human and Peoples’ Rights in the manner outlined in s 327(2). This section has to be read in light of s 46 of the Constitution which provides:-</p> <p><strong>“46 Interpretation of Chapter 4</strong></p> <p>(1)       When interpreting this Chapter, a court, tribunal, forum or body—</p> <p>(<em>a</em>)       must give full effect to the rights and freedoms enshrined in this Chapter;</p> <p>(<em>b</em>)       must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and            in particular, the values and       principles set out in s 3;</p> <p>(<em>c</em>)         must take into account international law and all treaties and conventions to which Zimbabwe is a party;</p> <p>(<em>d</em>)       must pay due regard to all the provisions of   this Constitution, in particular the principles and objectives set out in Chapter 2; and</p> <p>(<em>e</em>)        may consider relevant foreign law; in addition to considering all other relevant factors that are to be taken into account in     the interpretation of a Constitution.</p> <p>(2)       When interpreting an enactment, and when developing the common law and customary law, every court,     tribunal, forum or body must promote and be guided            by the spirit and objectives of this Chapter.”</p> <p> </p> <p> </p> <p>Zimbabwe is a dualist state as evidenced by ss 327 (2) and 34 of the Constitution which exhorts the State to ensure incorporation into our domestic law of all international conventions and treaties to which Zimbabwe is a party. The African Charter is not a self-executing treaty and as such, it has to be specifically incorporated into Zimbabwean law, that is, the Constitution of Zimbabwe. This, I find, reinforces the respondents’ argument that the solution to the applicants’ problem <em>in casu</em> lies in them lobbying the Government to amend the Constitution, including domestication of relevant treaties and conventions, so that it allows the diaspora vote. The relevance of this course of action is highlighted in the case of <em>Foster &amp; Elam v. Neilson </em>27 U.S. (2 Pet.) 253, (1829) at 314 where MARSHAL CJ had this to say:</p> <p>“Our constitution declares a treaty to be law of the land. It is, consequently, to be regarded in Courts of Justice as equivalent to an act of legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract – when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule of law for the Court.”</p> <p> </p> <p> </p> <p>The Constitutional Court remains guided by the wording of the Constitution, and has interpreted its provisions as expressly excluding the diaspora vote.  Amendments to the Constitution are the prerogative of the Legislature. In other words, the court does not dictate to the law maker what the content of the law should be.  It can only declare what such content should not be.</p> <p> </p> <p>The parties in their heads of argument made reference to the state of electoral laws in a number of countries. It is evident that different countries impose different laws to regulate the right of their citizens, based locally or abroad, to vote in their general elections. While there are some countries that do not admit of, or even address, the diaspora vote in their law, (eg. Uganda, Zambia, Nigeria) there are many others that allow it, to differing degrees and on different pre-conditions (eg. South Africa, Germany, Mozambique, New Zealand and others).</p> <p> </p> <p>What is clear, however, in respect of the international electoral systems cited, is the fact that the right to vote is regulated by law. Different countries have different methods employed to allow or not allow the diaspora vote depending on the provisions of their Constitutions. The determination has already been made that Zimbabwean law does not provide for the diaspora vote. This should be a basis for agitating for the amendment of the Constitution at the request of any aggrieved party. The fact that other countries have the diaspora vote provided for in terms of their laws would be an effective lobbying tool in that respect. Such laws however do not entitle this Court to interpret legislation in a manner that confers on the applicants a right which does not arise from the Constitution. The only benefit to this Court, of these laws, might lie in their persuasive effect in the interpretation of any similar or related law that may be passed by our Legislature to regulate the right of those based abroad to vote.</p> <p>  </p> <p>In the result, I find that the international treaty cited by the applicants, not having been appropriately incorporated into our domestic legislation, has no binding effect in the determination of the dispute in this matter. I find too that the international electoral laws which the applicants have made reference to offer little if any assistance in the interpretation of the constitutional provisions, as currently phrased, that pertain to our national elections.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>When all is considered, and on the basis of the foregoing, I find that the application cannot succeed.</p> <p> </p> <p>It is accordingly ordered as follows:</p> <p>‘The application be and is hereby dismissed with no order as to costs.’</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>GARWE JCC:                      </strong>I agree</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>GOWORA JCC:                   </strong>I agree</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>HLATSHWAYO JCC:        </strong>I agree</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>PATEL JCC:</strong>                        I agree</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>GUVAVA JCC:</strong>                    I agree</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>MAVANGIRA JCC:            </strong>I agree</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>BHUNU JCC:</strong>                       I agree</p> <p> </p> <p> </p> <p>                       </p> <p>                        <strong>UCHENA JCC:                    </strong>I agree</p> <p> </p> <p> </p> <p> </p> <p><em>Zimbabwe Lawyers for Human Rights</em>, applicants’ legal practitioners</p> <p> </p> <p><em>Civil Division of the Attorney General’s Office</em>, 1st, 4th, 5th and 6th respondents’ legal practitioners</p> <p> </p> <p><em>Nyika Kanengoni and Partners,</em> 2nd and 3rd respondents’ legal practitioners</p> <p>This would run counter to basic principles of Statutory Interpretation, which require that all relevant provisions in a statute, that deal with the subject for interpretation, must be considered together (see Tsvangirai V Mugabe &amp; Others, CCZ 24\17)</p> <p>. In that judgment, the Court dealt with a challenge to the restriction of postal voting to government officials and the residency requirements in the Electoral Act<em>, albeit</em> under the old Constitution. The issues are however the same as the ones in this case. The applicants have not challenged the correctness of this judgment nor established that it was distinguishable.</p> <p>Although, the African Chapter has not been incorporated into our law through an Act of Parliament, many of its substantive provisions accord with the righty and freedom guaranteed in our Constitution. These however, do not include any provision addressing the issue of the diaspora vote.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/4/2018-zwcc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=83456">2018-zwcc-4.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/4/2018-zwcc-4.pdf" type="application/pdf; length=402775">2018-zwcc-4.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/elections">Elections</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/vote">Vote</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/voter">Voter</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/consolidated-act/chapter-213">Electoral Act,[Chapter 2:13]</a></div></div></div> Thu, 28 Jun 2018 07:40:44 +0000 admin 8943 at https://old.zimlii.org Zimbabwe Development Party & Another v President of the Republic of Zimbabwe & 2 Others (CCZ 3/18, Constitutional Application No. CCZ 15/18) [2018] ZWCC 3 (28 May 2018); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2018/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong> </strong></p> <p><strong>REPORTABLE (3)</strong></p> <p> </p> <p><strong>(1) ZIMBABWE DEVELOPMENT PARTY</strong></p> <p><strong>(2) VOICE OF THE PEOPLE</strong></p> <p> </p> <p><strong>v</strong></p> <p> </p> <p><strong>(1) PRESIDENT OF THE REPUBLIC OF ZIMBABWE</strong></p> <p><strong>(2) SPEAKER OF PARLIAMENT</strong></p> <p><strong>(3) CHAIRPERSON – ZIMBABWE ELECTORAL COMMISSION</strong></p> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, MARCH 20 &amp; MAY 28, 2018</strong></p> <p> </p> <p> </p> <p><em>K Mukwazhe,</em> leader of the first applicant (a political party)</p> <p> </p> <p><em>M Chimombe,</em> for the first respondent</p> <p> </p> <p><em>A Demo,</em> for the second respondent</p> <p> </p> <p><em>T M Kanengoni,</em> for the third respondent</p> <p> </p> <p> </p> <p><strong>Before: MALABA CJ, In Chambers</strong></p> <p> </p> <p> </p> <p>This is an urgent chamber application for an order directing the Registrar to set down for hearing on an urgent basis the main application the applicants purported to file on 1 March 2018. The applicants are political parties represented by Mr Mukwazhe, who is the leader of the first applicant. In the application purportedly filed on 1 March 2018, under case no. CCZ 11/18 (the main application), the applicants did not seek leave to file the application. An endorsement was made on the application to the effect that leave to apply for direct access to the Constitutional Court (“the Court”) was not necessary. The parties in that application are the same as those in the present application.</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p> </p> <p>The applicants participated in the 2013 harmonised general elections. They are eager to participate in the 2018 harmonised elections. The relief sought in the main application is an order barring the President of Zimbabwe from proclaiming the call and the setting of the dates for the forthcoming harmonised general elections until the Political Parties (Finance) Act [<em>Chapter 2:11</em>] (“the Act”) is repealed.</p> <p> </p> <p>The applicants take the view that the Act is <em>ultra vires</em> the Constitution. The reason given for the alleged invalidity is that the Act does not protect small political parties. From the papers, it appears that the applicants are unhappy with s 3(3) of the Act. The papers do not specifically say so. The applicants allege in a vague manner that the Act is in contravention of s 67(4) of the Constitution. The section provides:</p> <p>“For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties.”</p> <p> </p> <p>The applicants contend that they have not been allocated funding in terms of the Act, despite having participated in the 2013 harmonised general elections. They interpret the provisions of s 67(4) of the Constitution to mean that an Act of Parliament referred to must ensure that funding is made available to every political party registered to participate in a general election.</p> <p> </p> <p>In addition, the applicants contend that the President has an obligation to uphold the Constitution. In their view, the obligation entails the President using his influence over the ruling party, which has the majority of seats in Parliament, to ensure that legislation providing for the funding of every political party participating in a general election is enacted. The applicants allege that if the harmonised general elections were to be held under the prevailing conditions, the political playing field would be in favour of the political parties receiving funding in terms of s 3(3) of the Act.</p> <p> </p> <p>The main application is intended to achieve the following ends, by way of the orders sought as gleaned from the founding and supporting affidavits -</p> <p> </p> <ul> <li>Recommendation to Parliament by the third respondent of what is called laws which ensurefree, fair and credible elections, as provided for by the Constitution;</li> </ul> <p> </p> <ul> <li>The use by the first respondent of his influence over the ruling party and its majority in Parliament to have the Act realigned “to the Constitution”;</li> </ul> <p> </p> <ul> <li>The putting on hold of the forthcoming harmonised general elections until the Act is realigned with the Constitution”; and</li> </ul> <p> </p> <ul> <li>The barring of the first respondent from proclaiming the dates for harmonised general elections until the Act is repealed.</li> </ul> <p> </p> <p>The draft order sought is expressed in the following terms:</p> <p> </p> <p><strong>“WHEREUPON</strong> after reading documents filed of record and hearing parties:</p> <p> </p> <p><strong>IT IS ORDERED THAT:</strong></p> <p> </p> <ol> <li>The first respondent be and is hereby ordered not to proclaim the General Elections date until the Political Parties Finances Act of 2001 is repealed.</li> </ol> <p> </p> <p>2.         The second respondent be and is hereby ordered to facilitate the repealing of the Political Parties Finance Act.</p> <p> </p> <p>3.         The third respondent be and is hereby ordered not to conduct any elections under the current Political Parties Finance Act.</p> <p> </p> <p>4.         Parties that participated in 2008 and 2013 elections to get US$420 000.00 before any elections are held.</p> <p> </p> <p>5.         Costs be in the cause.”</p> <p> </p> <p> </p> <p>The first respondent opposed the application for an order that the main application be set down for hearing on an urgent basis. He took as a point <em>in limine</em> that, in terms of rule 21 of the Constitutional Court Rules, SI 61 of 2016 (“the Rules”), the applicants ought to have applied for direct access before they filed the main application. He contended that the main application filed by the applicants is not one that falls within the matters which do not require leave to approach the Court directly. There cannot be a case for an urgent hearing of a matter that is not properly before the Court. The first respondent also opposed the application on the basis that the applicants merely assert that the Act is unconstitutional without indicating the specific provisions of the Act said to be invalid.</p> <p> </p> <p>The second respondent opposed the application on the basis that he is incorrectly cited. He averred that the Constitution creates the office of the Speaker of the National Assembly and not the “Speaker of Parliament”. On this ground, the second respondent contended that the applicants were non-suited. The second respondent also raised a point relating to the non-joinder of the Minister of Justice, Legal and Parliamentary Affairs, the President of the Senate and the Minister of Finance and Economic Development. He alleged that the Minister of Justice, Legal and Parliamentary Affairs should have been cited as a party because he is the one who administers the Act. The second respondent also contended that the Minister of Finance and Economic Development was a necessary party, for the reason that he administers the Treasury from which the claimed US$420 000 would be paid. With regards to the non-joinder of the President of the Senate, the second respondent contends that both the National Assembly and the Senate make laws and the law-making function is not restricted to the National Assembly.</p> <p> </p> <p>The third respondent contended that the main application was not properly before the Court for the reason of non-compliance with r 21(1) of the Rules, which required the applicants to seek authority to access the Court directly before filing the application. The third respondent also contended that the application did not comply with r 16 of the Rules, for the reason that it was not in Form CCZ 1.</p> <p> </p> <p>The third respondent also raised the special plea of <em>res judicata</em> against the applicants. She alleged that in 2013 the first applicant filed an application under case no. CCZ 25/13 seeking funding in terms of the Act. The application was dismissed by the Court on 26 June 2013.</p> <p> </p> <p>On the merits, the third respondent averred that the relief sought in the main application was incompetent, as the proclamation of dates of a general election is not an act of exercise of discretion by the President. It is a constitutional requirement. She averred that no court has the power to bar the President from proclaiming the dates of a general election in terms of the Constitution. The third respondent also said that the relief sought by the applicants is not competent, for the reason that they have not sought a declaration of constitutional invalidity of the Act.</p> <p> </p> <p>The third respondent further contended that s 67(4) of the Constitution does to require the enactment of legislation that provides for funding of every political party formed. The essence of the third respondent’s case was that the threshold prescribed under s 3(3) of the Act to be reached by political parties to secure entitlement to payment of moneys from the funds appropriated for the purpose of reimbursement of campaign costs is a mechanism that has the effect of promoting multi-party democracy.</p> <p> </p> <p>The third respondent prayed for costs on a legal practitioner and client scale against the applicants. The reason given for the order sought was that the application sought to be heard on an urgent basis sought substantially the same relief as was sought in the application that was dismissed by the Court on 26 June 2013.</p> <p> </p> <p>At the hearing of the application, the Court intimated to the parties that, as the dates for the harmonised general elections could be set by proclamation in terms of s 144(1) of the Constitution any time soon and the applicants were not legally represented, it was prudent to deal with the application as one for direct access. Authority for the approach is found in r 5 of the Rules. The respondents agreed. The applicants conceded that they ought to have sought and obtained leave to file the main application. They also agreed that the application be treated as one for direct access.</p> <p> </p> <p>Mr <em>Chimombe,</em> for the first respondent, argued that the main application had no prospects of success. He said the application was frivolous and vexatious. He argued that the applicants did not indicate the specific provisions of the Act which they alleged violated the provisions of s 67(4) of the Constitution. As a result of lack of reference to specific provisions of the Act alleged to be invalid, the relief sought was vague. He took the point that there was no constitutional matter for determination by the Court.</p> <p> </p> <p><em>Mr Demo</em> agreed with <em>Mr Chimombe</em> that the applicants had no prospects of success in the main application. The reasons given were firstly that the President cannot be barred by a court from complying with a constitutional obligation. Secondly, the applicants could not expect to be granted an order directing that they be paid money which is payable in terms of a statute they claimed is invalid.  </p> <p> </p> <p><em>Mr Kanengoni</em> argued that it was not in the interests of justice for the applicants to be granted direct access to the Court. He argued that s 67(4) of the Constitution does not guarantee to a political party a right to funding based on its mere formation and participation in a general election. He said the applicants failed to show that the Constitution requires that the legislative measures put in place must ensure the availability of funding to every political party formed.</p> <p> </p> <p><em>Mr Kanengoni</em> took issue with the applicants’ draft order. As the applicants would be approaching the Court in terms of s 85(1)(a) of the Constitution, they had to allege that their fundamental rights as political parties had been or were being infringed by specific provisions of the Act. None of the applicants’ rights had been violated. With regards to para 2 of the draft order, he argued that the Court has no mandate to order the second respondent to facilitate the repeal of a statute. Whilst the Court has power to declare legislation unconstitutional, the applicants did not seek a declaration of invalidity in respect of any provision of the Act.  He contended that the President cannot be stopped from performing a constitutional obligation. He prayed that the application be dismissed with costs on an attorney and client scale on the basis that the first applicant had approached the Court with the same issues in 2013 and failed.</p> <p> </p> <p><strong>DETERMINATION OF THE ISSUES</strong></p> <p> </p> <p> </p> <p><strong>WHETHER THE APPLICANTS COULD FILE THEIR MAIN APPLICATION WITHOUT FIRST OBTAINING DIRECT ACCESS</strong></p> <p> </p> <p><em>Mr Mukwazhe</em> had argued that s 167(5) of the Constitution allowed the applicants to file the main application “with or without leave”. The applicants’ understanding of s 167(5) of the Constitution was that a litigant had an option to either seek leave or approach the Court directly without first seeking and obtaining leave to do so.</p> <p> </p> <p>Section 167(5) of the Constitution provides as follows:</p> <p> </p> <p>“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —</p> <p> </p> <p>(<em>a</em>)        to bring a constitutional matter directly to the Constitutional Court;</p> <p> </p> <p>(<em>b</em>)        to appeal directly to the Constitutional Court from any other court;</p> <p> </p> <p>(<em>c</em>)        to appear as a friend of the court.”</p> <p> </p> <p>Section 167 of the Constitution prescribes the jurisdiction of the Court. The Court has original, concurrent, exclusive and appellate jurisdiction on constitutional matters only. As a result, it decides only constitutional matters and issues connected with decisions on constitutional matters. The Court makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.</p> <p> </p> <p>Constitutional matters over which the Court has original and exclusive jurisdiction are specifically set out in s 167(2) of the Constitution. The other provisions of the Constitution on constitutional matters or issues in connection with a decision on a constitutional matter for the hearing and determination of which direct access to the Court is guaranteed are found in ss 113(7), 131(8)(b), 175(3), 175(4) and para 9(2) of the Fifth Schedule.</p> <p> </p> <p>In respect of all the constitutional matters over which the Court has concurrent or appellate jurisdiction the provisions of s 167(5) (a) and (b) of the Constitution make it clear that the question whether direct access to the Court is to be had with leave or without such leave is to be determined by the Rules. The purpose of requiring the Rules to prescribe the circumstances in which an application for leave for direct access to the Court is necessary is to ensure that the Court plays its role of supervising the maintenance of the constitutional order.</p> <p> </p> <p>The Constitution delegated the power of setting the conditions for direct access to the Court (in matters over which the Court does not have exclusive jurisdiction) to the makers of the Rules. A litigant cannot rely on s 167(5) of the Constitution and ignore the Rules which give effect to the Constitution. It is the provisions of the Rules that litigants have to comply with. It was not for the officials of the applicants to decide whether or not to seek leave for direct access to the Court. There is no rule that authorises a litigant seeking the kind of relief sought by the applicants on the grounds stated to approach the Court directly without leave.</p> <p> </p> <p>The Rules set out the objective factors a litigant has to state in a chamber application for direct access for consideration by the Court or Judge in the determination of the question whether it is in the interests of justice to grant direct access. There must be filed with the registrar, and served on all parties with direct or substantial interest in the relief claimed, an application setting out the grounds on which it is claimed it is in the interests of justice that direct access be granted.</p> <p> </p> <p>Absent the grounds on which it is claimed that it is in the interests of justice that direct access be granted, the Court or Judge has no basis on which to decide whether or not to grant direct access. A finding has to be made by the Court or Judge of the existence of the interests of justice requiring that a decision that direct access be granted be made. Direct access to the Court in matters over which other courts have jurisdiction is a discretionary procedure, which is granted only in exceptional cases - see <em>Betlane v Shelley Court</em> CC 2011 (1) SA 388 (CC), 2011 (3) BCLR 264 [22]; <em>A Party and Another </em>v<em> The Minister for Home Affairs and Others, Moloko and Others </em>v<em> The Minister for Home Affairs and Another</em> 2009 (3) SA 649 (CC), 2009 (6) BCLR 611 (CC) [70].</p> <p> </p> <p>Currie and De Waal, in “<em>The Bill of Rights Handbook</em>”, 6 ed (2013) at pp 127-128 have the following to say on the subject:</p> <p>“Direct access means that a matter is heard by the Constitutional Court at first instance. … The Rules provide for direct access to the Constitutional Court in matters over which concurrent jurisdiction is exercised, where the matter is of sufficient public importance or urgency that direct access will be in the interests of justice. Direct access is an extraordinary procedure that has been granted by the Constitutional Court only in a handful of cases.”</p> <p> </p> <p>The applicants were required by law to seek leave to approach the Court directly with their main application. They did not attempt to argue that theirs is a matter over which leave to approach the Court directly is not required.</p> <p> </p> <p><strong>WHETHER IT IS IN THE INTERESTS OF JUSTICE TO GRANT THE APPLICANTS DIRECT ACCESS</strong></p> <p> </p> <p>The Court has analysed the matter and has come to the conclusion that it would not be in the interests of justice to grant the applicants direct access. Pursuit of justice must be shown to be at the heart of every legal remedy sought to be granted by a court of law.</p> <p> </p> <p>The requirements for an application for direct access are set out in r 21(3) of the Rules as follows:</p> <p> </p> <p>“(3)      An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –</p> <p> </p> <p>(a)        the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and</p> <p> </p> <p>(b)        the nature of the relief sought and the grounds upon which such relief is based; and</p> <p> </p> <p>(c)        whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”</p> <p> </p> <p> </p> <p>Further, in elaborating r 21(3)(a), r 21(8) of the Rules provides as follows:</p> <p>“(8)      In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account -</p> <p> </p> <p>(a)        the prospects of success if direct access is granted;</p> <p> </p> <p>(b)        whether the applicant has any other remedy available to him or her; and</p> <p> </p> <p>(c)        whether there are disputes of fact in the matter.”</p> <p> </p> <p>All these requirements are punctuated by s 167(5) of the Constitution, which requires that the Rules must provide that direct access to the Court ought to be availed where it is in the interests of justice to do so. What must always be borne in mind by the Court or Judge deciding the issue of direct access is the fact that the Court occupies a special position in the scheme for the protection of the constitutional order. It is the only court whose jurisdiction is specifically limited to hearing and determining constitutional matters only or issues connected with decisions on constitutional matters. These are ordinarily matters that require consideration of issues of law relating to the interpretation, protection or enforcement of constitutional provisions. The interests of justice are the overriding consideration.</p> <p> </p> <p>In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In <em>Transvaal Agricultural Union v Minister of Land Affairs and Another</em> 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:</p> <p> </p> <p>“[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned there is neither the urgency <em>nor the prospects of success necessary to justify direct access to this Court</em>. The application for direct access must therefore be dismissed. (my emphasis)</p> <p> </p> <p>In<em> Bruce and Another v Fleecytex Johannesburg CC and Others </em>1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC) at para [7], chaskalson p remarked:</p> <p>“[7] <em>Whilst the prospects of success are clearly relevant to applications for direct access to this Court, there are other considerations which are at least of equal importance.</em>  This Court is the highest Court on all constitutional matters.” (my emphasis)</p> <p> </p> <p>The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle that all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the Court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.</p> <p> </p> <p>In <em>De Lacy and Another v South African Post Office</em> 2011 (9) BCLR 905 (CC) at para [50] the Court of South Africa, whilst considering the approach in the application of the provisions of s 167(6) of the Constitution of South Africa, remarked:</p> <p>“[50] Section 167(6) of the Constitution requires this Court to allow a person to bring a matter directly should it be in the interests of justice to do so. Where the interests of justice lie depends on the outcome of a meticulous weighing-up of relevant considerations. <em>Chief of these, but not solely decisive, would be whether there are prospects of success</em>. For instance, the public importance of the issue raised or its impact on the administration of justice may well favour granting direct access in a matter in which prospects of success may be open to some doubt.” (my emphasis)</p> <p> </p> <p>See also <em>Dormehl</em> v <em>Minister of Justice and Others</em> 2000 (2) SA 987 (CC).</p> <p> </p> <p> </p> <p>The applicants seek in the main application an order interdicting the President from proclaiming the dates for the harmonised general elections. Paragraph 12 of the founding affidavit states:</p> <p> </p> <p>“12. This is an application wherein the applicants are seeking an order to have the first respondent hold the pronouncement of election dates until the Political Parties Finance Act is repealed since it is <em>ultra vires</em> the Constitution as it does not protect the other political parties, especially section 3 that says ‘… each political party whose candidates received at least five <em>per centum</em> of the total number of votes cast in the most recent general election’ …”.</p> <p> </p> <p> </p> <p>Paragraph 1 of the draft order relates to the same relief.</p> <p> </p> <p>Section 144(1) of the Constitution, in terms of which the President is to act in setting the dates for the harmonised general elections, is mandatory. It provides:</p> <p> </p> <p>            “<strong>144 General election resulting from dissolution of Parliament</strong></p> <p> </p> <ol> <li>Where Parliament has not earlier passed resolutions to dissolve in terms of section 143(2), the President must by proclamation call and set dates for a general election to be held within the period prescribed in section 158.”</li> </ol> <p> </p> <p>The timing of the elections is governed by s 158(1)(a) of the Constitution, which provides as follows:</p> <p> </p> <p><strong>“158 Timing of elections</strong></p> <p> </p> <p>(1) A general election must be held so that polling takes place not more than —</p> <p> </p> <p>(<em>a</em>)        thirty days before the expiry of the five-year period specified in section 143; …”.</p> <p> </p> <p> </p> <p>The President is obliged under s 144(1), as read with s 158(1)(a), of the Constitution to set dates by proclamation for the holding of harmonised general elections within the period prescribed. The use of the word “must” in both ss 144(1) and 158(1) of the Constitution underscores the fact that the obligation imposed on the President to do what is specified for the specific purpose stated and in the manner prescribed is a mandatory obligation. The immutable requirement is that when the time comes for him to do so, the President has no option but to do what he is specifically bound by the Constitution to do. Section 90(1) of the Constitution imposes on the President the duty to obey the Constitution. Once the President has called and set the dates for the harmonised general elections in terms of s 144(1) of the Constitution, s 158(1)(a) makes it clear that those elections must be held on the dates set.</p> <p> </p> <p>            No-one, including the courts, has power to alter what is mandated by the Constitution in clear, unambiguous and mandatory terms. It would be unconstitutional for a Court or Judge to order the President not to call and set dates for the holding of the harmonised general elections as prayed for by the applicants. The mandatory obligation is imposed on the President by the Constitution for the benefit of all the people of Zimbabwe.</p> <p> </p> <p>It is the Constitution itself which dictates what the President must do. The proclamation is directly demanded by the Constitution. The Constitution is the supreme law of the land and the courts cannot abrogate it. Their duty is to enforce what the Constitution demands.</p> <p> </p> <p> </p> <p>The applicants have no right which may conceivably be injured by the lawful performance by the President of the constitutional obligation. From the nature of the relief sought, it is clear that the applicants have no right, let alone a <em>prima facie</em> right, to payment of the money payable under the Act to any political party whose candidates received at least five <em>per centum</em> of the total number of votes cast in the most recent general election.</p> <p> </p> <p>The principle that an interdict cannot be granted to prevent the occurrence of a lawful act has become part of our law. In other words, a court of law has no competence to make such an order which is by nature and effect contrary to the rule of law.</p> <p> </p> <p>In<em> Minister of Lands v Paliouras; Minister of Lands v Wiggill</em> 2001 (2) ZLR 22 (S), chidyausiku acj (as he then was) at 28G-29A stated as follows:</p> <p> </p> <p>“The respondents’ contention that the appellant is prohibited from exercising any of the above powers which he is expressly authorised by Parliament to exercise raises the fundamental issue of jurisdictional competence. Can a court interdict the appellant from acquiring land for redistribution in accordance with explicit provisions of an Act of Parliament? Not only is this a debatable point, but the wisdom of such an interdict is questionable. The interdiction of patently lawful conduct can hardly further the rule of law. That issue however is not before the court and will have to await determination another day.”</p> <p> </p> <p>The determination of the issue came in <em>Airfield Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural Resettlement and Others</em> 2004 (1) ZLR 511 (S).  The Court said at 518B-E:</p> <p> </p> <p>“When the appellant lodged the application for the interim relief before the court <em>a quo </em>the acquisition of the land by the State was a <em>fait accompli, </em>all rights of ownership having been extinguished on its part. The acquiring authority having done everything it was obliged by the law to do to acquire the land for resettlement purposes, there was no outstanding act against the performance of which the acquiring authority could be temporarily interdicted. An interim interdict is not a remedy for prohibiting lawful conduct. At the time the first respondent made the order by which the appellant was deprived of ownership of the land, he acted lawfully in the exercise of the power conferred upon him. Subsection (1) of s 8 of the Act gave him the power to make the order and its effect reflected the legal consequences of that lawful act.</p> <p> </p> <p>To suspend the effects of the order of acquisition lawfully made and intended by the legislature would amount to striking down the Act of Parliament or rendering it completely ineffective, thereby creating a vacuum pending determination of the constitutionality of the impugned sections of the Act. That would be improper for the court to do because the clear intention of the legislature was that an order of acquisition, properly made in terms of subs (1) of s 8 of the Act, should have the effect of depriving the owner or occupier of the rights of ownership in the land and vesting them in the acquiring authority.”</p> <p> </p> <p> </p> <p>gowora ja weighed in on this principle in <em>Zimbabwe Revenue Authority </em>v<em> Packers International (Private) Limited </em>SC 28/16 where, at pp 16-17 of the cyclostyled judgment, she held:</p> <p> </p> <p>“An interdict serves to protect a right not an obligation. The papers filed on behalf of Packers did not identify any right that ZIMRA had threatened. The court <em>a quo</em> found as a matter of fact that ZIMRA had acted in terms of the law in assessing VAT which remained unpaid. Once this finding was made including the further finding that the agent had been appointed lawfully, there was no lawful justification at law for suspending payment for a week. </p> <p> </p> <p>I am fortified in this view by the remarks of the learned deputy chief justice malaba in the <em>Mayor Logistics</em> case <em>supra</em> to the following effect:</p> <p> </p> <p>‘The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with. An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a <em>prima facie</em> right, pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right.</p> <p> </p> <p>It is axiomatic that the interdict is for the protection of an existing right. There has to be proof of the existence of a <em>prima facie</em> right. It is also axiomatic that the <em>prima facie</em> right is protected from unlawful conduct which is about to infringe it. An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct. <em>Airfield Investments (Pvt) Ltd v Minister of Lands &amp; Ors </em>2004 (1) ZLR 511 (S); <em>Stauffer Chemicals v Monsato Company</em> 1988 (1) SA 895; <em>Rudolph &amp; Another v Commissioner for Inland Revenue &amp; Others</em> 1994 (3) SA 771.’</p> <p> </p> <p>The applicant accepted in the founding affidavit that the respondent acted lawfully in enforcing the obligation to pay the tax notwithstanding the noting by it of the appeal to the Fiscal Appeal Court against the correctness of the assessment. It did not allege any unlawful conduct on the part of the respondent which would justify the granting of an interdict. It also accepted that at the time the respondent put in place measures to collect the tax, the provisions of ss 36 of the VAT Act and 69(1) of the Income Tax Act were binding on it. That means that the applicant had no <em>prima facie</em> right in existence at the time not to pay the amount of tax it was liable to pay to the <em>fiscus.</em> Sections 36 of the VAT Act and 69(1) of the Income Tax Act protect a duty, not a right.”</p> <p> </p> <p>See also <em>Judicial Service Commission v Zibani and Others</em> SC 68/17.</p> <p> </p> <p>As correctly submitted by <em>Mr Kanengoni</em>, the proclamation can only be challenged after it is made and the challenge can only be on the ground that it has not complied with the relevant provisions of the Constitution.</p> <p> </p> <p>The applicants also allege as follows:</p> <p> </p> <p>“13.     In terms of the Constitution of Zimbabwe, Chapter 4, Part 2, section 67(4) states that ‘… for the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties’ meaning all political parties administered by the Zimbabwe Electoral Commission and this includes the applicants.</p> <p> </p> <p>14.       The applicants have never been allocated such funding to promote multi-party democracy to enable them to prepare and effectively participate in the forthcoming General Elections, as is enshrined in the esteemed Constitution of the land, despite having participated in several elections.</p> <p> </p> <p>15.       To this end, the parties which are getting such funding are thus having an unfair advantage over the applicants since they are not getting the funds. This is infringing on the Constitutional rights of the applicants.”</p> <p> </p> <p> </p> <p>There is no merit in this argument. The Legislature complied with the obligation to enact an Act of Parliament. Section 3 of the Act provides:</p> <p>           </p> <p>“<strong>3 Financing of political parties</strong></p> <p> </p> <p>(1) Subject to this Act, every political party shall be entitled in each Parliamentary year to receive from the State the sums of money that are payable to it in terms of this Act.</p> <p> </p> <p>(2) The Minister shall, as soon as is practicable, and in any case no later than thirty days after the beginning of the financial year, publish, with the approval of the Minister responsible for finance, a notice in the G<em>azette</em> specifying the total amount of moneys appropriated for all political parties and the amount that shall be paid to each individual political party in terms of this Act<em>.</em></p> <p> </p> <p>(3) For the purpose of subsection (2), each political party whose candidates received at least five <em>per centum </em>of the total number of votes cast in the most recent general election shall be entitled to the same proportion of the total moneys appropriated as the total number of votes cast for its candidates in the election bears to the aggregate of votes cast for all political parties that qualify to be paid moneys in terms of this subsection:</p> <p> </p> <p>Provided that, where a candidate is declared elected in terms of section 46 or 49 of the Electoral Act [<em>Chapter 2:01</em>] without a poll having taken place, he shall be deemed to have received the votes of all the voters registered in the constituency concerned.</p> <p> </p> <p>(4) Whenever a by-election to fill a vacancy in Parliament is held after a general election, the Minister shall adjust the amounts payable to political parties in respect of the Parliamentary year following that in which the by-election was held, having regard to any changes in the total number of votes cast consequent on such by-election:</p> <p> </p> <p>Provided that, where a candidate is declared (elected) in terms of section 46 or 49 of the Electoral Act [<em>Chapter 2:01</em>] without a poll having taken place, he shall be deemed to have received the votes of all the voters registered in the constituency concerned.”</p> <p> </p> <p> </p> <p>Zimbabwe has adopted a system of representative government delivered through multi-party democracy. Section 67(4) of the Constitution does not require the enactment of an Act of Parliament which makes provision for the funding of every political party formed as the means of ensuring the achievement of the constitutional purpose of promoting multi-party democracy. Section 67(4) of the Constitution uses the words “political parties” and not “all political parties”.</p> <p> </p> <p>A multi-party democracy is a political system in which multiple political parties across the political spectrum participate in national elections and all have a chance to gain control of government offices separately or in coalition. (<em>Wikipedia <a href="https://en.wikipedia.org">https://en.wikipedia.org</a>˃wiki˃multi-pa...). </em>It “contemplates a political order in which it is permissible for different groups to organise, promote their views through public debate and participate in free and fair elections”. <em>President of the Republic of South Africa</em> v <em>United Democratic Movement</em> 2003 (1) SA 472 (CC) at para [26]. What this means is that upon making the Constitution the people of Zimbabwe chose a political system that allows citizens to express their consent to be governed in free, fair and regular elections, participated in by multiple political parties.</p> <p> </p> <p>Whilst s 67(4) of the Constitution prescribes the “promotion of multi-party democracy” as the legitimate objective to be pursued by the Act of Parliament enacted, it leaves the choice of the best means for the achievement of that objective to the Legislature. If the means chosen by the Legislature is rationally related to the objective of promoting multi-party democracy through the funding of political parties, s 3(3) of the Act would not be held unconstitutional.</p> <p> </p> <p>Section 3(3) of the Act makes it a requirement that for a political party to qualify for financing, its candidates should have obtained at least five per cent of the total number of votes cast in the most recent general election. The amount payable to a political party is calculated on the basis of what is the proportion of the total number of votes cast for its candidates in the general election to the aggregate of the votes cast for all political parties. Democracy is demonstrably achievable when people who are registered voters choose candidates in a free, fair and peaceful general election by casting their votes.</p> <p> </p> <p>It is out of the results of votes cast in a general election that a government of the people, by the people and for the people emerges. Political parties play an important rôle in the democratic process because they are the bodies that organise the people who vote in the general election for candidates sponsored by them. In other words, in the system of multi-party democracy established by the Constitution, political parties occupy central stage and play a vital part in facilitating the exercise of political rights. <em>Ramakatsa</em> v <em>Magashute</em> 2013 (2) BCLR 202 (CC) at para [65]. The political parties take part in the exercise of legislative authority as the ruling party or opposition parties.</p> <p> </p> <p>What is clear from s 3(3) of the Act is that all political parties are subjected to the same standard of having to aim at their candidates receiving at least five percent of the total number of votes cast in the general election immediately before the next general election. In other words, the requirement applies to every political party. The formation of a political party is not an income generating project. The taxpayer’s money cannot be used to fund any upstart political party which may not be <em>bona fide</em>. Placement of a reasonable limitation upon the payment of public funds to political parties is beyond controversy. A situation where political parties are formed and registered to participate in a general election simply to secure funding by the State cannot have the effect of promoting multi-party democracy.</p> <p> </p> <p>The applicants have not shown that they are eligible to get the financial support on the basis of s 3(3) of the Act. In terms of the section, entitlement only accrues after an election and not before an election. The applicants are interpreting s 67(4) of the Constitution to mean that the Act of Parliament should make provision for the funding of any entity that has been registered as a political party without regard to votes received by candidates sponsored by political parties in a general election. The approach urged upon the Court that funding should solely depend on the mere existence of a political party without reference to numbers of votes received by candidates sponsored by the political parties in the most recent general election ignores the fact that multi-party democracy recognises the voter as the decision-maker.</p> <p> </p> <p>The Act applies to all the political parties. Contrary to what the applicants allege, the mechanism adopted by the Legislature ensures that there is a level playing field for all political parties registered to take part in a general election. Entitlement to receive the money payable accrues to every political party whose candidates have reached the prescribed threshold of having received at least five <em>per centum</em> of the total votes cast in the most recent general election.</p> <p> </p> <p>The entitlement to funding accrues to as many political parties as have managed out of their own efforts to reach the minimum threshold. There can be no doubt that the purpose of the standard prescribed is to ensure funding for the successful political parties consistent with the provisions of s 67(4) of the Constitution. The fact that some political parties end up not being funded does not mean that no political parties are funded. Entitlement to payment of the money from the public funds appropriated for the purpose of funding political parties is not a fundamental right of a political party. It is a statutory right claimable after a political party has met the minimum requirements for entitlement to payment.</p> <p> </p> <p>A political party should have the support of the people and this is shown by votes received. There has to be a criterion for political parties’ financing. In <em>United Parties </em>v<em> Minister of Justice, Legal and Parliamentary Affairs &amp; Others</em> 1997 (2) ZLR 254 (S) the Supreme Court determined the question of the constitutionality of s 3(3) of the repealed Political Parties (Finance) Act [<em>Chapter 2:04</em>]. The applicant in that case argued that s 3(3) of the repealed Political Parties (Finance) Act [<em>Chapter 2:04</em>] inhibited the exercise of its rights guaranteed under s 20(1), s 21(1) or s 23 of the old Constitution.</p> <p> </p> <p>In determining the question of the constitutionality of s 3(3) of the repealed statute in <em>United Parties </em>case<em> supra</em> gubbay cj, at 261A-262B, said:</p> <p>“THE POLITICAL PARTIES (FINANCE) ACT</p> <p>            (1)       THE NATURE AND STRUCTURE OF THE ACT</p> <p>The preamble to the Act states that its purpose is:</p> <p> </p> <p>            ‘… to provide for the financing of political parties by the State and for matters connected therewith or incidental thereto’.</p> <p> </p> <p>In order to qualify for financial support, a political party must apply to the Minister of Justice, Legal and Parliamentary Affairs for registration in terms of s 4. Any such application must identify each of its candidates for election in the general election. Further information prescribed by the Minister may also be required. If the Minister is satisfied that the candidates identified are members of the political party concerned, he must register it. An appeal lies to the High Court against the Minister's refusal to entertain an application by a political party.</p> <p> </p> <p>Section 3 deals with the actual financing of political parties. Subsection (1) stipulates that every registered political party shall be entitled to receive from the State the sums of money payable to it under the Act. Subsection (2) obliges the Minister, with the approval of the Minister of Finance, to specify annually by notice in the Gazette (a) the total amount of moneys payable to all registered political parties; and (b) the moneys paid to each individual registered political party. Subsection (3) reads:</p> <p> </p> <p>            ‘For the purpose of paragraph (b) of subsection (2), each registered political party shall be entitled to the same proportion of the total moneys specified in terms of paragraph (a) of that subsection as the number of elected members of Parliament who are members of that political party bears to one hundred and twenty:</p> <p>            Provided that, where fewer than fifteen elected members of Parliament are members of a particular registered political party, that political party shall not be entitled to any moneys in terms of this Act.’ …</p> <p> </p> <p>What is most significant about this Act is that no registered political party with less than fifteen elected members of Parliament will be entitled to be paid any moneys by the State. Parties with the requisite number of elected members will receive funding every year and not only after a general election has taken place. The amount of such funding is calculable on the basis of the number of their members as a percentage of the one hundred and twenty common roll constituencies. Plainly the funding is designed to subsidise permanently the political parties that qualify and not merely to reimburse their election expenses.”</p> <p> </p> <p>The learned chief justice continued at 266E-267D:</p> <p> </p> <p>“(4) THE THRESHOLD OF FIFTEEN ELECTED MEMBERS OF A PARTICULAR REGISTERED POLITICAL PARTY AS THE ENTITLEMENT TO RECEIVE FUNDING FROM THE STATE</p> <p> </p> <p>The justification for placing a reasonable limitation upon the payment of State funds to political parties admits of no controversy. Its purpose is understandable. It is to encourage serious political parties or candidates to contest an election and thereby strive to obtain representation in Parliament. Yet, on the other hand, it is to discourage inability to attract an important following - to command a significant proportion of the votes cast. Put differently, the aim is to inhibit the proliferation of trifling parties; to prevent them from participating in the election simply in order to secure public moneys.</p> <p> </p> <p>Jensen <em>op cit</em> at 113-114 points out that the regulation of public funding for elections has been identified with the following five goals:</p> <p> </p> <p>(i)         to ensure equality of opportunity in a liberal democracy characterised by inequities in the distribution of wealth;</p> <p> </p> <p>(ii)        to make enough money available that competitive campaigns can exist;</p> <p>           </p> <p>(iii)       to allow new entrants, while not encouraging frivolous candidates or propping up decaying political organisations;</p> <p> </p> <p>(iv)       to reduce the opportunity for undue influence; and</p> <p> </p> <p>            (v)        to prevent corruption.</p> <p> </p> <p> </p> <p>In the Zimbabwean setting, the first three of these goals are particularly apposite, but are not achieved by s 3(3) of the Political Parties (Finance) Act. Obviously, the mere presence of public funds is not sufficient. It must be provided in a manner that is non-exclusionary and tolerant of political pluralism and electoral competition. Otherwise it will do no more than entrench and reinforce the regime of the major political parties, and treat far less fairly their minor or new opponents. Thus a high threshold for entitlement to receive State funding makes it extremely unlikely that small but meaningful voices will be heard. In a relatively non-affluent society, where nothing like adequate funding from private sources is available, such a threshold renders it virtually impossible for other political parties to gain any real margin of success.”</p> <p> </p> <p>Finally, at 272C-G gubbay cj held:</p> <p> </p> <p>“It is my view that the whole of s 3(3) of the Political Parties (Finance) Act, and not merely its proviso, should be declared inconsistent with s 20(1) of the Constitution. This is because, as mentioned earlier, it is, in essence, the scheme upon which State funding is paid that abridges the protection of freedom of expression. Even if the threshold of the number of elected members were set far below fifteen, the requirement of there having to be representation by a registered political party in Parliament, in order to qualify for annual funding, would still put aspiring opposition political parties at a severe monetary disadvantage in mounting an electoral campaign; and, thereafter, in maintaining potent political survival. It seems probable that an appreciation of this factor was the motivation for other countries passing legislation which makes the entitlement to funding dependent upon the attainment of a fairly low percentage of the overall number of votes cast at a general election (if the funding is to be provided annually, which is the policy in Zimbabwe).</p> <p> </p> <p>It may be true to say that at the next general election the hurdle for smaller or emerging political parties will remain fairly formidable. Yet, assuming a reasonable threshold is fixed by Parliament on the basis of a percentage of the total number of votes cast, it should be reached with less difficulty than under a regulatory system that effectively entrenches the <em>status quo</em>.</p> <p> </p> <p>As the striking down of subs (3) renders the allied provisions contextually inappropriate, it will be incumbent upon the Legislature to replace the whole of s 3 of the Political Parties (Finance) Act in conformity with this judgment.” (The underlining is mine for emphasis)</p> <p> </p> <p>The current s 3(3) of the Act is a direct result of the judgment in the <em>United Parties</em> case <em>supra</em>. The applicants have not asked the Court to revisit that judgment. The judgment states that a scheme of entitlement to State funding based on a reasonable threshold of votes received by candidates of political parties, being a fairly low percentage of the total votes cast in the most recent general election, would be constitutional.</p> <p> </p> <p> </p> <p>There is no doubt that setting the minimum threshold for entitlement to State funding for a political party as the votes received by its candidates which should be at least five percent of the total votes cast in the most recent general election promotes multi-party democracy. Political parties do not have to secure representation in Parliament. Under the current legislative scheme for entitlement to payment of State funding, small political parties that fail to win a seat in Parliament but have candidates who manage to receive the five percent of the total votes cast in the most recent general election are entitled to receive payment.</p> <p> </p> <p> </p> <p>Multi-party democracy is not defined in terms of seats political parties have in Parliament. Multi-party democracy is promoted by encouraging political parties to compete for funding by seeking to reach the minimum threshold for entitlement to payment of monies appropriated for funding political parties. The political parties are encouraged to use freedom of speech during campaigns in the general election to persuade voters to vote for their candidates so that they meet the minimum threshold and get funding. The voter becomes the decision-maker. The requirements for entitlement to payment of monies from the public funds appropriated in terms of the Act for funding political parties ensure the effectiveness of the funding as a means of promoting multi-party democracy as required by the Constitution.</p> <p> </p> <p>The applicants contended that the Act should be repealed. The Court has no power to order the repeal of any legislation. Repeal of legislation is a legislative act and not a judicial act. The declaration of constitutional invalidity of legislation is the judicial act. It was not sought by the applicants. The applicants cannot seek to have the validity of the Act impugned whilst also asking for an order that they be paid US$420 000 payable only in terms of the Act. As such, the main application has no prospects of success because what the applicants seek is not grantable.</p> <p> </p> <p>The third respondent took the point that the dispute in question is <em>res judicata</em>. An examination of the founding affidavit on which the application in CCZ 25/13 was based shows that there are material differences in the nature of the causes of action pleaded. Although vaguely pleaded, the applicants’ cause of action in CCZ 11/18 was that s 3(3) of the Act contravenes the provisions of s 67(4) of the Constitution. They did not, of course, say which of their fundamental rights were infringed by the alleged invalidity of s 3(3) of the Act. On that assumed invalidity, the applicants went on to pray for non-grantable reliefs. In respect of CCZ 25/13 the first applicant did not plead a cause of action. All he did was to state the provisions of the Act and the Constitution before praying for an order that it be paid the money payable to political parties that met the qualification requirements prescribed by s 3(3) of the Act for entitlement to payment. The plea of <em>res judicata</em> raised by the third respondent and <em>ipso facto</em> the prayer for costs against the applicants on the scale of legal practitioner and own client scale cannot succeed.</p> <p> </p> <p><strong>COSTS</strong></p> <p> </p> <p>The first and second respondents prayed that the application for direct access be dismissed with no order as to costs. The third respondent had adopted a different position on costs because of the plea of <em>res judicata</em> raised against the applicants.</p> <p> </p> <p>            Now that the special plea has not been upheld, there is no good reason for treating the third respondent differently from the other respondents on the question of costs. The order given is consistent with the general principle on the question of the award of costs in constitutional litigation where the State is the successful party.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p> </p> <p>In the result the following order is made:</p> <p> </p> <p>“The application for direct access to the Court is dismissed with no order as to costs.”</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Civil Division of the Attorney General’s Office,</em> first respondent’s legal practitioners</p> <p> </p> <p><em>Chihambakwe Mutizwa and Partners,</em> second respondent’s legal practitioners</p> <p> </p> <p><em>Nyika, Kanengoni and Partners,</em> third respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/3/2018-zwcc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=64430">2018-zwcc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/3/2018-zwcc-3.pdf" type="application/pdf; length=314514">2018-zwcc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaration-rights">Declaration of Rights</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/president">President</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/executive-powers-0">executive powers of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/elections">Elections</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2001/4">Political Parties (Finance) Act [Chapter 2:11]</a></div></div></div> Thu, 28 Jun 2018 06:58:32 +0000 admin 8941 at https://old.zimlii.org