The applicant was a candidate for the National Assembly seat for Tsholotsho North constituency in Matabeleland North Province in the Harmonised General Elections held on 31st July 2013 as a nominee of ZANU (PF). The respondent was declared winner of the National Assembly election in respect of the said constituency. She stood in the election as a candidate for the MDC(T) party.
The applicant was not satisfied with the outcome of the election, and, accordingly, on 1st August 2013, filed a Petition in terms of section 167 of the Electoral Act [Chapter 2:13], hereinafter referred to as the “Act”.
The Petition filed by the applicant is couched in the following terms:
“BE PLEASED TO TAKE NOTICE THAT the Petitioner hereby petitions the Electoral Court for an Order in terms of the Draft annexed hereto on the grounds that:
1. The Petitioner was a candidate in the National Assembly Election for the Tsholotsho North Constituency on the 31st July 2013.
2. That the 9th Respondent was returned as the National Assembly member for Tsholotsho North in that election and this return was improper and irregular for the reasons detailed in the annexed affidavit.
3. The combination of electoral malpractices and irregularities highlighted in the annexed affidavit render the election null and void or voidable as the court may deem appropriate.
TAKE NOTICE FURTHER THAT, the accompanying affidavit and supporting documents are tendered in support of this application and should be read as specifically forming part of this notice.”
The applicant prayed that this court grants him relief in the Draft Order, in the following terms:-
“1. The 9th Respondent was not duly elected as the representative of Tsholotsho North Constituency as declared on 1st August 2013 by the First Respondent.
2. That the said election be and is hereby set aside and that a bi-election be held within 90 days of this order.
3. That the voters roll for Ward 22 and 9 of Tsholotsho North Constituency be rectified to reflect voters resident in these wards prior to the election referrein herein.
4. That the Registrar of this Honourable Court duly communicate this court's order to the Speaker of Parliament.
5. That the Respondent's jointly and severally pay the costs of this application.”
Pursuant to the filing and service of the Electoral Petition upon the nine Respondents, the first to sixth respondents filed an exception to the Petition on the grounds of mis-joinder in that the citation of the first to sixth respondents was contrary to the provisions of Part XXII and section 166 of the Electoral Act. The applicant subsequently withdrew all actions against the first to eighth respondents, leaving the ninth respondent, who is now the only respondent in this action.
Both the applicant and the respondent filed fairly detailed Heads of Argument in support, and defence of the preliminary points raised by the respondent.
The preliminary points were initially premised on six grounds, but, at the commencement of the hearing of oral argument, the respondent's legal practitioner announced that there were only two grounds to be dealt with, conceding that the rest of the objections were not sustainable.
The respondent argued that the applicant's petition is fatally defective and therefore a nullity in that it does not comply with the provisions of the Electoral Act [Chapter 2:13] and section 169 of the same Act and sections 21(e) and (g) of Statutory Instrument 74A of 1995, S.I.74A of 1995 also known as the Electoral (Applications, Appeals and Petitions) Rules, 1995.
Further, the respondent avers that throughout the petition, the petitioner has not specifically alleged any electoral law infractions by either the respondent or its agents.
In other words, the petitioner's gripe seems to be with the electoral body and/or its officials, and, as such, the petitioner's remedies lie in an application for a review.
The respondent contends that the petitioner has not brought out a complaint or cause against the respondent or her agents, and, that if he has done so, this has been put across in a manner so lackadaisical and imprecise and so vague that the respondent does not know what she must answer to....,.
I have read the accompanying affidavit of the applicant and while I agree, that the affidavit is lengthy, a careful scrutiny of the document reveals that the content therein does not really disclose, with any reasonable clarity, the grounds upon which the election challenge is made.
In the opening pages of the affidavit, the applicant deals with what he refers to as wrongful denial of a recount “under confused and confusing circumstances.”
That aspect of the applicant's case falls away by virtue of the fact that the vote re-count was set aside by an order of the court, under case number EC25/13.
The court made an order to the effect that the recount was in violation of section 70(4) of the Electoral Act and therefore unlawful.
The rest of the affidavit deals with extensive and general complaints of misplacement, misdirection, and non-counting of votes and disenfranchisement of voters in certain wards in the Constituency....,.
The other issue raised by the respondent is that the petitioner's grounds upon which the petition is sustained are so imprecise and vague that it is not clear what the respondent must answer to.
The applicant's affidavit is quite voluminous but is thin on content.
I have already indicated that the issue of a refusal of re-count was disposed of by virtue of the court order of this court. What then remains in the petition are alleged infractions related to the counting of votes.
The applicant alleges that there were various anomalies and inconsistencies that compromised the integrity of the election results. Some of the alleged anomalies involved instances where the applicant had only one polling agent present during the counting of votes.
In a specific instance, the applicant refers to an affidavit sworn to by Jabulani Tsheza who was a polling agent in Ward 8, Tsholotsho North Constituency.
The deponent complained that on the 30th July 2013 he observed a white Nissan pick-up truck with a Methodist church emblem on its doors. The vehicle was parked outside the polling station. Jabulani Tsheza deemed the presence of the vehicle as suspicious as the driver drove away without explaining why he was at that polling station.
In another sworn statement in support of the applicant's petition, one Kelvin Sibanda complained that he was based at Sandawana Primary School which was a Collation Centre. He observed a white pick-up truck with red Methodist church stickers on its doors. The deponent did not get a satisfactory explanation for the presence of the truck at the Collation Centre. The deponent goes further that he went to Ntulula polling station at Ntulula Primary School where he found cow horns in the polling station. When he approached the Presiding Officer about the cow horns, which resembled the ZAPU party emblem which used a bull as its symbol, he did not get a satisfactory response. Kelvin Sibanda concluded that the presence of the white Methodist pick up truck and the cow horns found in one of the classrooms was suspicious and could have compromised the election result.
I will not endeavour to analyze the various affidavits attached to the applicant's petition as this would simply be an exercise in futility.
I found the detail in the applicant's affidavit and supporting affidavits to contain vague and general complaints which do not state, in precise terms, the grounds relied upon to sustain the petition as contemplated under Rule 21(e) of the Electoral (Applications, Appeals and Petitions) Rules, S.I.74A of 1995.
I am of the firm view that where the grounds upon which the petition is to be sustained are vague and imprecise, the court cannot cure such defect by referring the matter to trial.
To refer the matter to trial under such circumstances amounts to a fishing expedition.
