COURT WATCH 13/2013

[4th September 2013]

Pre-Referendum and Pre-Election Challenges Dismissed by the Courts

Part III: Nomination Court Cases + Case on Political Party Funding

Part I [Court Watch 11/2013 of 15th August] of this series covered the dismissal by the courts of cases challenging the short notice and handling of the Constitutional Referendum of 16th March

Part  II [Court Watch 12/2013 of 3rd September] covered Constitutional Court cases applying for an extension of the election date.

This bulletin, Part III, covers more pre-election cases complaining about the nomination process for the harmonised elections and one case raising the issue of State funding for political parties not represented in Parliament.  All these cases were dismissed by the Constitutional Court.

Note: Unless otherwise indicated, references to the Constitution are to the new Constitution, the relevant provisions of which came into operation on 22nd May, as explained in Constitution Watch 29/2013 of 22nd May.

Complaints Relating to Nomination Day taken to the Constitutional Court

Early Nomination Date Challenged

Gadzamoyo Dewah

v

The President, Ministers of Constitutional and Parliamentary Affairs and of Justice, ZEC Chairperson and the Prime Minister

Note: In his proclamation of 13th June calling the harmonized elections, President Mugabe fixed 28th June as nomination day – the day on which nomination courts would sit to receive nominations of candidates – and 31st July as polling day.  That timing allowed would-be candidates the bare minimum fourteen days allowed by the Electoral Act in which to organize their nomination papers and have them accepted by the nomination courts. 

Good People’s Movement Party president Dr Gadzamoyo Dewah, who is also Secretary of the Zimbabwe Opposition Political Parties Council [ZOPPC], lodged an application at the Constitutional Court seeking the postponement of nomination day for two weeks.  His main argument was that because all candidates must be registered voters, it was unconstitutional to have the nomination courts sitting before the completion on 9th July of the special 30-day intensive voter registration exercise required by the Constitution in paragraph 6 of its Sixth Schedule.  DrDewah, representing himself, also argued that the Zimbabwe Electoral Commission [ZEC] was not ready for the nomination process because it lacked nomination forms and stationery.  He further argued that the prescribed nomination process was too cumbersome.  Finally, he challenged the constitutionality of the Political Parties (Finance) Act, arguing that small political parties not party to the Global Political Agreement did not have access to funding from foreign sources or the Treasury.  He argued that his rights under sections 3(1)(a) to (f), 3(2)(a), (d), (f), 67(1)(b), 67(2)(a) to (c) and 67(4) of the Constitution were violated as a result.

[Note: Section 3 of the Constitution lists Zimbabwe’s “founding values and principles,” including a multi-party democratic political system and respect for the rights of political parties, and section 67 lists the political rights of Zimbabwean citizens, including the right to stand for election.  Section 3 did not come into operation on 22nd May, although section 67 did.]

Application Dismissed The application was heard and dismissed by the Constitutional Court on 28th June.

Written judgment

Reasons for judgment have not yet been released.

ZEC’s Alleged Failure to Publicise Nomination Process

Ignatius Masamba

v

Minister of Justice and ZEC

The applicant complained that the Minister and ZEC, in violation of his rights, had failed to provide would-be candidates with information on nomination fees and sufficient notice of the date on which nomination papers were to be filed. 

Note: The election proclamation, specifying the nomination date as well as the polling date, was gazetted on 13th June in SI 86/2013.   Nomination fees and nomination forms for these elections were specified on the same day, with the gazetting of the Electoral (Nomination of Candidates) Regulations [SI 88/2013].  This meant would-be candidates had the bare minimum period permitted by the Electoral Act to finalise their nomination papers.  It is frequently difficult for members of the public to access official texts of statutory instruments, and the short timeframe meant ZEC did very little education around the elections. 

Application dismissed

The application was heard on 18th July, and the Constitutional Court dismissed it on the same day on the basis that there was no cause of action, meaning that the applicant had not shown that ZEC breached any duty imposed on it by the Constitution. 

Written judgment

Reasons for judgment have not yet been released.

Appeal against Nomination Rejection 

Pushe-Bar Bere

v

ZEC and ZEC Chairperson

Ms Bere was an aspiring candidate for election as a local authority councillor.  She asked for an extension of time within which to file her nomination papers after having, she said, through no fault of her own, failed to file them within the prescribed time.  She claimed to have filed all her documents with the presiding officer in Ward 19, Makonde, in good time on nomination day.  Later in the day the presiding officer phoned her to tell her that her photograph was missing from those documents.  The applicant therefore decided to have another photograph taken to replace the missing one.  She arrived at the nomination court at 5.15 pm, but was informed that as the nomination court sitting had ended at 4 pm, as required by the Electoral Act, she could no longer submit any documents.

Application dismissed 

The application was heard on 18th July 2013. The Court dismissed the application, ruling that the matter should have been directed to the Electoral Court within four days of the sitting of the Nomination Court.  It was now, therefore, too late for any remedy.

Written judgment

Reasons for judgment have not yet been released.

Complaint about a Rejected Nomination

Gibbs Paul Gotora

v

ZEC, Rita Makarau and Another

Mr Gotora is president of the Zimbabwe Organised Open Political Party.  On 15th July he lodged an application at the Constitutional Court requesting the reinstatement of his nomination papers for the Presidential election.  He claimed that he had been unfairly prevented from challenging the nomination court’s rejection of his papers.  He was rejected on the grounds that he had insufficient valid nominators.  [Note: Section 104 of the Electoral Act requires a Presidential candidate to be nominated by at least one hundred registered voters, at least ten from each of the country's ten provinces.]  He claimed that, in rejecting his papers, the nomination court had not properly explained to him the reasons for rejection.  ZEC had told him that it was too late to bring up any grievances about the nomination court.  The applicant claimed that ZEC’s denying him the opportunity to contest the rejection by the nomination court was a breach of the Electoral Act.

Matter dealt with by Registrar

On 17th July 2013, the Registrar of the Constitutional Court wrote to the applicant to advise him that as he had not raised any constitutional issues in his application, he should direct it to the Electoral Court.

Absence of State Funding for Small Political Parties

Zimbabwe Development Party

v

Minister of Justice and Legal Affairs and Three Others

This application was filed on 12th June 2013, when the election date was already known although not yet proclaimed.  The applicant claimed that the Constitution requires that an Act of Parliament must provide for funding for political parties.  It accordingly asked the Constitutional Court to order the Minister of Justice and Legal Affairs, the Minister of Constitutional and Parliamentary Affairs and ZEC to direct the Minister of Finance to release funds to the applicant for the purposes of preparing for the elections.  Section 3(3) of the Political Parties (Finance) Act provides that every political party whose candidates received at least 5% of the total number of votes cast in the most recent general election is entitled to funding that is proportionate to the number of votes cast for its candidates in relation to all the votes cast for all the political parties that qualify to be funded.  Because it had failed to achieve the required percentage in the previous election, the applicant party was not entitled to funding from the State under the Act.  The applicant argued that this disentitlement to funding infringed its political rights in terms of section 67(2) of the Constitution [section 67(2) enshrines the rights of Zimbabwean citizens to form, join and participate in the activities of a political party].

 

Application Dismissed

On 4th July 2013 the Constitutional Court dismissed the application.

Written judgment

Reasons for judgment have not yet been released.

Gadzamoyo Dewah’s early nomination date challenge [see above] also included a challenge to the constitutionality of the Political Parties (Finance) Act, arguing that small political parties not party to the Global Political Agreement did not have access to funding from foreign sources or the Treasury.  His whole case was dismissed, again with no written judgment to date.

See Part II of this [Court Watch 12/2013 of 3rd September] for comments on lack of written judgments and the Judicial Code of Ethics.

Part IV will cover cases taken to the courts on voting rights and special voting.

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