BACKGROUND
FACTS
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 [Chapter
2:11]
(“the ...
BACKGROUND
FACTS
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 [Chapter
2:11]
(“the Act”) is repealed.
The
applicants take the view that the Political Parties (Finance) Act
[Chapter
2:11]
is
ultra
vires
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 section 3(3) of the
Political Parties (Finance) Act [Chapter
2:11].
The papers do not specifically say so. The applicants allege, in a
vague manner, that the Act is in contravention of section 67(4) of
the Constitution. The section provides:
“For
the purpose of promoting multi-party democracy, an Act of Parliament
must provide for the funding of political parties.”
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 section 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.
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 section 3(3) of
the Political Parties (Finance) Act [Chapter
2:11].
The
main application is intended to achieve the following ends, by way of
the orders sought, as gleaned from the founding and supporting
affidavits -
(i)
Recommendation to Parliament, by the third respondent, of what is
called laws which ensure
free,
fair and credible elections, as provided for by the Constitution;
(ii)
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”;
(iii)
The putting on hold of the forthcoming harmonised general elections
until the Act is re-aligned with the Constitution”; and
(iv)
The barring of the first respondent from proclaiming the dates for
harmonised general elections until the Act is repealed.
The
draft order sought is expressed in the following terms:
“WHEREUPON
after reading documents filed of record and hearing parties:
IT
IS ORDERED THAT:
1.
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.
2.
The
second respondent be and is hereby ordered to facilitate the
repealing of the Political Parties Finance Act.
3.
The third respondent be and is hereby ordered not to conduct any
elections under the current Political Parties Finance Act.
4.
Parties that participated in 2008 and 2013 elections to get
US$420,000= before any elections are held.
5.
Costs be in the cause.”…,.
The
first respondent also opposed the application on the basis that the
applicants merely assert that the Political
Parties (Finance) Act [Chapter
2:11]
is unconstitutional without indicating the specific provisions of the
Act said to be invalid….,.
The
third respondent further contended that section 67(4) of the
Constitution does not 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
section 3(3) of the Political Parties (Finance) Act [Chapter
2:11]
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….,.
Counsel
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 Political Parties (Finance) Act [Chapter
2:11]
which they alleged violated the provisions of section 67(4) of the
Constitution. As a result of lack of reference to specific provisions
of the Political Parties (Finance) Act [Chapter
2:11]
alleged to be invalid the relief sought was vague. He took the point
that there was no constitutional matter for determination by the
Court.
Counsel
for the second respondent
agreed with counsel for the first respondent 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.
Counsel
for the third respondent
argued that it was not in the interests of justice for the applicants
to be granted direct access to the Court. He argued that section
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.
Counsel
for the third respondent
took issue with the applicants' draft order.
As
the applicants would be approaching the Court in terms of section
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 Political Parties (Finance) Act [Chapter
2:11].
None of the applicants' rights had been violated. With regards to
paragraph 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 Political Parties (Finance) Act [Chapter
2:11].
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….,.
The
applicants also allege as follows:
“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.
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.
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.”
There
is no merit in this argument.
The
Legislature complied with the obligation to enact an Act of
Parliament. Section 3 of the Political
Parties (Finance) Act [Chapter
2:11]
provides:
“3
Financing of political parties
(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.
(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 Gazette
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.
(3)
For the purpose of subsection (2), each political party whose
candidates received at least five
per centum
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:
Provided
that, where a candidate is declared elected in terms of section 46 or
49 of the Electoral Act [Chapter
2:01]
without a poll having taken place, he shall be deemed to have
received the votes of all the voters registered in the constituency
concerned.
(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:
Provided
that, where a candidate is declared (elected) in terms of section 46
or 49 of the Electoral Act [Chapter
2:01]
without a poll having taken place, he shall be deemed to have
received the votes of all the voters registered in the constituency
concerned.”
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.”
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. (Wikipedia
https://en.wikipedia.org?wiki?multi-pa…,.).
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”. President
of the Republic of South Africa v United Democratic Movement
2003 (1) SA 472 (CC)…,. 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.
Whilst
section 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, section3(3) of the Political
Parties (Finance) Act [Chapter
2:11]
would
not be held unconstitutional.
Section
3(3) of the Political
Parties (Finance) Act [Chapter
2:11]
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.
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 role 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. Ramakatsa
v Magashute
2013 (2) BCLR 202 (CC)…,. The political parties take part in the
exercise of legislative authority as the ruling party or opposition
parties.
What
is clear from section 3(3) of the Political Parties (Finance) Act
[Chapter
2:11]
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 bona
fide.
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.
The
applicants have not shown that they are eligible to get the financial
support on the basis of section 3(3) of
the Political Parties (Finance) Act [Chapter
2:11].
In
terms of the section, entitlement only accrues after an election and
not before an election. The applicants are interpreting section 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.
The
Political Parties (Finance) Act [Chapter
2:11]
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 per
centum
of the total votes cast in the most recent general election.
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 section 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.
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
United
Parties v Minister of Justice, Legal and Parliamentary Affairs &
Others
1997 (2) ZLR 254 (S), the Supreme Court determined the question of
the constitutionality of section 3(3) of the repealed Political
Parties (Finance) Act [Chapter
2:04].
The applicant in that case argued that section 3(3) of the repealed
Political Parties (Finance) Act [Chapter
2:04]
inhibited the exercise of its rights guaranteed under section 20(1),
section 21(1) or section 23 of the old Constitution.
In
determining the question of the constitutionality of section 3(3) of
the repealed statute in United
Parties v Minister of Justice, Legal and Parliamentary Affairs &
Others
1997 (2) ZLR 254 (S), GUBBAY CJ…., said:
“THE
POLITICAL PARTIES (FINANCE) ACT
(1)
THE NATURE AND STRUCTURE OF THE ACT
The
preamble to the Act states that its purpose is:
'…,
to provide for the financing of political parties by the State and
for matters connected therewith or incidental thereto.'
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 section 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.
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:
'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:
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.'…,.
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.”
The
learned CHIEF JUSTICE continued at 266E-267D:
“(4)
THE
THRESHOLD OF FIFTEEN ELECTED MEMBERS OF A PARTICULAR REGISTERED
POLITICAL PARTY AS THE ENTITLEMENT TO RECEIVE FUNDING FROM THE STATE
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.
JENSEN
op
cit,
at 113-114, points out that the regulation of public funding for
elections has been identified with the following five goals:
(i)
To ensure equality of opportunity in a liberal democracy
characterised by inequities in the distribution of wealth;
(ii)
To make enough money available that competitive campaigns can exist;
(iii)
To allow new entrants while not encouraging frivolous candidates or
propping up decaying political organisations;
(iv)
To reduce the opportunity for undue influence; and
(v)
To prevent corruption.
In
the Zimbabwean setting, the first three of these goals are
particularly apposite, but are not achieved by section 3(3) of
the Political Parties (Finance) Act [Chapter
2:11].
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.”
Finally,
at 272C-G, GUBBAY CJ held:
“It
is my view that the whole of section 3(3) of the Political Parties
(Finance) Act, and not merely its proviso, should be declared
inconsistent with section 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).
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 status
quo.
As
the striking down of subsection (3) renders the allied provisions
contextually inappropriate, it will be incumbent upon the Legislature
to replace the whole of section 3 of the Political Parties (Finance)
Act in conformity with this judgment.”…,.
The
current section 3(3) of the Political Parties (Finance) Act [Chapter
2:11]
is a direct result of the judgment in United
Parties v Minister of Justice, Legal and Parliamentary Affairs &
Others
1997 (2) ZLR 254 (S).
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.
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.
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 Political Parties (Finance) Act [Chapter
2:11]
for funding political parties ensure the effectiveness of the funding
as a means of promoting multi-party democracy as required by the
Constitution.
The
applicants contended that the Political
Parties (Finance) Act [Chapter
2:11]
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 Political
Parties (Finance) Act [Chapter
2:11]
impugned whilst also asking for an order that they be paid
US$420,000= payable only in terms of the Political
Parties (Finance) Act [Chapter
2:11].
As
such, the main application has no prospects of success because what
the applicants seek is not grantable.
