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Disorganisation in opposition ranks has seen a Presidential candidate and 18 candidates for the National Assembly losing their nominations because of the rules imposed in the Electoral Act with the Zimbabwe Electoral Commission mistakenly believing it had leeway to still accept the nominations despite problems.
The nominations were nullified by the High Court after private voters brought civil cases. They had the legal standing to bring the suits because they were voters and so parties to the election. In no case was any organisation involved, let alone the Government and certainly not President Mnangagwa, who over the weekend expressed his irritation with those accusing him of manipulating the courts or being involved in these civil suits.
He has every right to be irritated, since his involvement in any election as President is extremely limited.
Under the Constitution and the Electoral Act he has the specific duty, after consulting ZEC, to fix the nomination day and the voting day, and ensure that these fall within the various timeframes laid down in the law.
That is it, although there is also the general continuous duty that exists throughout his five-year term of ensuring Zimbabwe is a peaceful country with everyone protected. But any attempt to interfere with the actual elections would be unlawful.
And President Mnangagwa does not break the law, nor does he interfere with the judiciary and while he might not like all judicial decisions he accepts them. He does not have dictatorial powers. The 19 disqualified presidential and National Assembly candidates were disqualified on clear legal grounds.
Presidential candidate Saviour Kasukuwere was disqualified because he had been away from his constituency for more than 18 months, in fact out of the country for that time, and so had lost his place on the voters’ roll, so could not be nominated for anything. That is the law and the Supreme Court has upheld the High Court interpretation of the law, as well as its factual finding of Mr Kasukuwere being continuously out of the country.
The 18 Bulawayo candidates were disqualified because they filed their nomination papers late. The Electoral Act is quite specific. Nomination courts open on nomination day at 10am and close at 4pm.
If you or your accredited election agent are physically in the courtroom, in a queue and holding your papers at 4pm, the court can still process you. The High Court also found that a candidate sent out to rectify an error and who ran back after 4pm was able to have his papers accepted, since he was operating under ZEC instructions.
So there is some discretion given to the court, including giving an opportunity to those who turn up in time with a deficient set of nomination papers, perhaps one of their nominees is in the wrong constituency, to rush out and fix the problem. But adjourning the nomination court to the following day is not one of the options.
Generally the law assumes that candidates know the law and that they are organised, and the Electoral Act even has very generous provisions for candidates to have their papers checked well in advance of nomination day to make sure that they have ticked all the boxes.
There is plenty of time in the Act for all aspiring candidates to sort themselves out well in advance of nomination day. For a start the President, when setting the nomination day, has to pick a date that is at least 14 days after the official notice is gazetted, although not more than 21 days.
During those two to three weeks all aspiring candidates really have to do is find five nominees within their constituency, or 10 from each province if running for President, make sure these nominees are on the correct voters’ roll, find the fee charged by ZEC, make sure that their party has registered its three officials for their province and get two of those to confirm the candidate can use the party name and logo, and then turn up on nomination day with form, party authority if not an independent, and the money.
This does not seem very difficult, just requiring a bit of organisation, and in any case the warning time for all practical purposes is a lot more for the five-yearly presidential and general elections since their timelines, although not the precise dates, are laid down in the Constitution and everyone knew a decade ago when the Constitution became law that sometime within a couple of months of the middle of 2023 there would be one of those major general elections.
Zanu PF managed the simple organisation without any problems or tensions at all. They already had their candidates lined up having run their primary elections.
All candidates for local authorities, the National Assembly and the Presidency had their forms filled out well in time, the money was available and counted out and on the day the elections agents, and if they wished the candidates, just stepped into the court, submitted the papers, waited for the brief check, and then had the fees paid and receipted.
Any political party aiming to form the next Government should be able to do the same, even if it has to scrape around a bit, but the sort of organisation required does not have to be particularly vast, just competent.
Leaving things to the last minute, such as 4pm on nomination day, does not make sense and then seeking extensions beyond those in the Act shows a contempt of the law.
In Zimbabwe we observe the rule of law, that is what the law says is what the law is, and if there is any doubt in a point of law the independent judiciary makes the final decision.
Elections are governed by written law, in particular the Electoral Act which has been amended several times, the last time after some serious work in Parliament with the final version, the one in use in this election incorporating a lot of input from the opposition.
No one was shouting before the nomination day that the law was unfair or biased. Not everyone liked every provision, but everyone accepted the provisions and was then supposed to go through the process, a fairly simple process with the law being precise and easy to understand and with ZEC ready to help.
Afterwards we had the nonsense. Mr Kasukuwere’s election agent denigrated the Supreme Court for failing to ignore the law and making up a new one, as if the courts ever have that right. She then oddly described the judgment as a “constitutional crisis”. There would only be such a crisis if the High Court or Supreme Court was allowed to ignore a law passed by Parliament and write a new law whenever it wanted.
Then another prominent supporter of Mr Kasukuwere said violence would be unleashed. Changing laws by violence is not an option; if you want to change them win a Parliamentary majority or be able to ask Parliament to change them. Gangs roving the streets are not a legislature.
In the Bulawayo case it was the job of the candidates, and their parties, to make sure that the very short list of boxes were ticked and then to walk through the nomination court easily and quickly. Impossible conditions, or even difficult conditions, were not set and there is nothing different from what we have had in previous elections going back to independence, and in fact right back into colonial times.
Online Reporter