Ruling by the high Court excluding late submission of candidature.
By Dr Masimba Mavaza | A High Court judge on Thursday 27th July 2023 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 carries 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.
“It also means the party is now denied a decent share of cash under the Political Parties (Finance) Act because that’s only determined by votes for National Assembly candidates,”
We all know that His Excellence President ED Munangagwa announced the date for the harmonised elections in Zimbabwe, as the 23rd August 2023. Consequently the deadline time and date for submission of candature for contesting the elections would be 21 June 2023 at 16:00 hours.
Political parties and prospective parliamentary candidates knew of these dates for months.
On the 21 June 2023, 12 CCC candidates submitted their papers to the Electoral Register at 16:01 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 weee moving the judge to grant them a declaratur and consequential relief.
The premise of the application on the provisions ofthe Electoral Act /Chapter 2:131 (“the Act”). Their bone
of contention was that the commission which sat as the nomination court at the Bulawayo Magistrates Court, Tredgold Building on 21 June 2023 violated the law, in particular, s 46[7) & [87 ofthe Act when it accepted the Respondents’ nomination papers for election to members of
the National House of Assembly ofZimbabwe in the election which are to be held on 23 August 2023 after 1600 Hours and proceeded to sit to the early hours of 22 June 2023. They,
accordingly: seek a declaration to the effect that the decision of-the nomination court isnull 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 to be held on 23 August 2023 of their respective constituencies.
Unsurprisingly but madly the late submitters sought to defend the decision by them to submit their papers late.
These individuals and their parties are playing hard and fast with the concept of Electorate fairness . For a start they are 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. She only read the operative part, upholding an appeal by 12 Zanu PF activists who are registered voters.” The 12 separately filed appeals from each of Bulawayo’s 12 constituencies, and Justice Ndlovu had consolidated the appeals into one.
The Zanu PF activists argued that 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 he 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 fairplay.
In this context relating a deadline, a deadline must be a deadline for 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 carvalier.
There is no need for the court to show that there is prejudice in accepting late submissions. A deadline is a deadline. The applicant must only show that the person or party was late.
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
It must be admitted or allowed throughout the election process. For axample those in charge of voting stations and ballot box would have discretion to decide which one is a sport paper. At that point there will be no rules, no certainty; the election would depend into a chaotic madness with dire consequences on security.
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 ofthe 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, Iwill dismiss for want ofmerit.
The judge made a clear ruling after looking at the case on the round and it is that ruling we need to abide by.
” theallegations,
and the denials all taken together I come to the conclusion that the Respondents except one,
submitted their nomination papers in violation of the law.
We now know that a Police Officer collected the nomination papers from the candidates. The Applicants’ case is that the 1$ Respondent violated the law. I have also been moved by both
sides ofthe bar, to give Section 46 (7) and (8) of the Act the golden rule ofinterpretation.
The Nomination Court closed at 4 pm. Once it closed it was no longer sitting in open court and
by the time the respondents sat before him 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 4 pm. It does
not say that the candidate’s papers alone must be in the courtroom.
The IS Respondent, therefore, violated the provisions of the electoral Act in that regard as he
also did close tomidnight when he adjourned to 2 June 2022.
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 The judge declared that
“IT IS DECLARED THAT;
1.
That the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 2 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.
2.
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
REGISTRAR OF THE HIGH COURT OF ZIMBABWE
CIVIL DIVISION
27 UJL 2023
P.O. BOX 579, BULAWAYO ZIMBABWE
21 HB 157/23
HC 1357-68/23
candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.
ACCORDINGLY, TI SI ORDERED THAT;
.3
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.
4. Respondents shall jointly and severally, pay the costs of suit.”