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Dr Masimba Mavaza
The High Court on Thursday barred 12 Citizens Coalition for Change (CCC) candidates for the National Assembly from taking part in the August 23 elections, ruling that their nomination papers were filed out of time.
Justice Bongani Ndlovu’s judgement carried mixed feelings in the legal fraternity and raised devastating consequences for the country’s main opposition party which now cannot have any representation in the Senate from Bulawayo province, or take up any youth and women’s quota seats in the National Assembly, where seats are allocated on the basis of proportional representation based on votes each party obtains in elections for National Assembly representatives.
We all know that His Excellency President ED Mnangagwa announced the date for the harmonised elections in Zimbabwe as the 23rd August 2023 and that the nomination court was to sit on 21 June 2023 to receive nomination papers for candidates, closing at 1600hrs.
Political parties and prospective parliamentary candidates knew of these dates for months.
On 21 June, 12 CCC candidates submitted their papers to the Electoral Register at 1601hrs or there after. This was clearly after the appointed deadline.
The submissions were rightly disqualified on the basis that they were late submissions.
The applicants were moving the judge to grant them a declaratur and consequential relief.
They premised the application on the provisions of the Electoral Act /Chapter 2:131. Their bone of contention was that ZEC, which sat as the nomination court at the Bulawayo Magistrates Court, Tredgold Building, on 21 June violated the law, in particular, s46[7) & [87 of the Act when it accepted the respondents’ nomination papers for election to members of the National Assembly of Zimbabwe in the elections which are to be held on 23 August after 1600hrs and proceeded to sit to the early hours of 22 June.
They, accordingly, sought a declaration to the effect that the decision of the nomination court was null and void and consequently be set aside and that the names of the affected respondents be excluded from the ballot papers which will be used in the elections of their respective constituencies.
Unsurprisingly, but madly, the late submitters sought to defend the decision to submit their papers late.
For a start, they were demanding the bending of the rules in their favour, but where it suits their fancy they project themselves as advocates for astute compliance with rules and with fairness.
Justice Nokuthula Moyo delivered the judgement on behalf of Justice Ndlovu at the Bulawayo High Court.
The 12 CCC candidates separately filed appeals from each of Bulawayo’s 12 constituencies, and Justice Ndlovu had consolidated the appeals into one.
The Zanu PF supporters argued that the CCC candidates filed their nomination papers after the 4PM deadline on June 21. The Zimbabwe Electoral Commission had opposed the applications, insisting that the 12 had filed by 4PM.
Those challenging the decision of the Court have a big problem with understanding what lies behind the requirement of a deadline for submitting candidature.
The underlying principle behind a deadline is democracy and fairness in electoral processes.
This electoral fairness starts with the processes. The deadline marks the beginning of the election process which culminates at the ballot box.
The whole train of events, from the submission of candidature papers to the voting, is strictly regulated and must be marked by transparency and fair play.
In this context relating to a deadline, the deadline must apply to all. An electoral process must not have as many deadlines as there are candidates submitting papers.
It must be one known and one respected deadline.
It is naive to start calibrating that one minute after the deadline is not significant. There is no equal playing field if some are disciplined about deadlines and others are cavalier.
There is no need for the court to show that there is prejudice in accepting late submissions, the applicant must only show that the person or party was late in submitting the papers.
Allowing the court to have a discretion is dangerous. It would cause concerns about transparency. It would also create uncertainty and disputation.
It would be a point of controversy to ascertain “how late is not late”. If discretion is allowed in the admission of late papers, then we get to a slippery slop.
Elections are a serious national business. Those who want to be taken seriously must take elections seriously.
It is hypocritical to play double standards by demanding strict application of rules against your opponent while demanding the flouting of the same when it comes to you.
Some respondents argued that there are in this matter material disputes of facts.
The judge in his judgement raised critical questions which are:
“(a) are those disputes incapable of resolution on the papers?
and [b] are those disputes material to the resolution of the controversy between the parties?
It must be noted that even if there is a material dispute of fact in an application matter, that fact alone is incapable of causing the disposal of the matter when taken as a point in limine, because the court is empowered to call for evidence or convert the proceedings into a trial.
This point is, therefore, in my view prematurely raised, on the facts of this matter.
Due to that incapacity on the part of the point taken, I would dismiss the case for want of merit.
The judge made a clear ruling after looking at the case on the round and it is that ruling we need to abide by.
The Nomination Court closed at 4pm. Once it closed it was no longer sitting in open court and by the time the respondents sat before the nomination officials they were not doing so in open court.
The separation of the papers from the Respondents through the medium of the police officer was unlawful.
The statute says the candidate or his/her agent must be in court and ready to submit at 4pm. It does not say that the candidate’s papers alone must be in the courtroom.
The court ruled against both ZEC and the nominating court. This means that the issue was not only against CCC as what others are saying.
Justice Ndlovu’s judgement read:
“It is declared that;
- That the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents’ nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of Section 46(7) & (8) of the Electoral Act [Chapter 2;131.
- That the decision of the 1st Respondent sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents’ nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.
Accordingly, it is ordered that;
- 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.
- Respondents shall jointly and severally pay the costs of suit.
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