The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.
He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.
He is moving me to grant him a declaratur and consequential relief.
He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).
His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.
His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.
He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.
He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.
He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.
The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.
He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.
Saviour Kasukuwere opposes the application.
The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.
My view is that the Minister is also of the same view.
The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.
Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:
(i) The court does not have the jurisdiction to hear and determine the matter;
(ii) The application is one for review which is disguised as a declarataur;
(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;
(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and
(v) Lovedale Mangwana violated the principle of subsidiarity.
He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.
He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.
He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.
He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.
He insists that he has a local address where he resides and is domiciled.
He claims that he left Zimbabwe on a temporary basis on medical grounds.
He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.
It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.
He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.
He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.
He contends that Lovedale Mangwana has not established any right which the court should protect.
Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.
Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.
There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.
He insists that the application does not meet the requirements of urgency.
Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.
He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.
He moves me to dismiss the application with costs which are at attorney and client scale.
The application succeeds.
ELECTION AND THE LAW
An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.
More often than not, the protagonists fail to find each other.
Where such occurs, they take each other to court which will resolve the dispute between them.
The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.
In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.
Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.
The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.
Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.
Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.
APPLICATION
What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.
Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.
Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.
It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.
In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.
Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.
The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute.
IN LIMINE MATTERS
LOCUS STANDI IN JUDICIO
Lovedale Mangwana, Saviour Kasukuwere argues, does not have the locus to bring this application.
Locus standi, simply defined, is the right of a person or group of people to bring an action before a court for adjudication. It is used interchangeably with terms like 'Standing to sue' or 'Title to sue.'
It is a right to be heard by a court of competent jurisdiction.
The right arises when a party to a case shows that he has interest sufficient enough to link him with a court's case; and, it stands, that, without showing such an interest, the court would not entertain his claim.
See GODWIN N. OKEKE 'Re-examining the Role of Locus Standi, the Nigerian Legal Jurisprudence' (2013)(6)(3) Journal of Politics and Law 209.
Chijuka v Maduewesi (2011) 16 NWLR (Pt.1272)…, takes the definition of locus further than where GODWIN N. OKEKE leaves it. It states, on the same, that:
“A plaintiff must show sufficient interest in the suit in order to have standing to sue. One criterion of sufficient interest is whether the party could be joined as a party to the suit? Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation? If the judge is satisfied that he will suffer, then, he must be heard.”
From the contents of the above-cited case authority, it is evident that sufficient interest in a case is what gives the party locus standi to sue in any court of law.
The doctrine of locus gives the court jurisdiction in a case. Where the party lacks the right to sue, the court would have no jurisdiction to hear his case.
The locus standi of a plaintiff is therefore a pre-condition for the court to assume jurisdiction.
Where the plaintiff does not satisfy this initial condition in the judicial process, he cannot go to the next stage of litigation ie leading of evidence on the matter: Lawsan and Policy Review (2018) Volume 1..,.
The above is the restrictive approach to the concept of locus.
Under this approach, a person who does not have a sufficient interest, nor has suffered, or is likely to suffer specific or personal injury in respect of a matter has no locus to sue nor can he obtain a remedy in court in respect of a matter.
The advantage of the approach is that it assists the court to ward off professional and meddlesome litigants from rushing to court to file frivolous and vexatious suits on matters that do not concern them. Its demerits are that it discourages public interest litigations and it has, more often than not, hindered people's rights of access to court.
On the other side of the scale is the liberal approach to locus.
This is a wide, dynamic, or less rigorous application of the doctrine of locus. Its aim is to promote as well as protect human rights and effective dispensation of justice. It enhances the protection and promotion of people's fundamental human rights, the rule of law, due process, and access to justice by all and sundry.
LORD DIPLOCK discusses this approach in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd (1981) 2 WLR 723…, in the following words:
“It would, in my view, be a grave lacuna in our system of public law if a pressure group like the Federation, or even a single spirited public tax payer, were to be prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”
The above-cited case authority resonates well with the new Constitution of Zimbabwe in terms of which fundamental human rights, the rule of law, and access to justice by persons, of whatever status, are guaranteed.
It encourages the court to welcome public interest litigation in the human rights field so that no human rights case may be dismissed or struck off the roll of the court for want of locus standi.
Human rights activists, advocates or groups, as well as any non-governmental organizations, individual persons included, have a discretion to sue on behalf of himself or herself, or on behalf of any potential applicant.
In human rights litigation, therefore, the applicant may include any of the matters which are stated in section 85 of the Constitution which, in extensor, provides as follows:
“(1) Any of the following persons, namely -
(a) Any persons acting in their own interests;
(b) Any persons acting on behalf of another person who cannot act for themselves;
(c) Any person acting as a member, or in the interests, of a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights….,.”
It follows from the cited section of the Constitution, that, a person such as Lovedale Mangwana is accorded the right to approach the court on the allegation that his rights, as contained in Chapter 4 of the Constitution, has been, is being, or is likely to be infringed.
Whether or not he will succeed will depend on the substance of his case and the importance to which the court, in its discretion, attaches to his case.
His ability to approach the court is taken as given. The law accords the same to him. He cannot, in terms of section 85 of the Constitution, have the door of the court closed against him.
The court will be failing in its duty if it does so in the face of Mawarire v Mugabe NO & Others CC01-13 in which CHIDYAUSIKU CJ endorsed the liberal approach to locus. The learned Chief Justice remarked in the same that:
“…,. Certainly, this court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has engulfed them. This court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”
The above expose shows that, whilst Saviour Kasukuwere premises his argument on the restrictive approach, which is applicable in civil cases which litigants bring to court on a day-by-day basis, Lovedale Mangwana bases his application on the liberal approach which is more in consonant with the due observance of the rights of people as they are enshrined in Chapter 4 of the Constitution.
His narrative is simple and straightforward.
It is to the effect, that, section 67(1)(a) of the Constitution confers upon him the right to vote. For him to exercise his right, the process which leads to the election must be within, and not without, the law. His further view is that the acceptance by the Zimbabwe Electoral Commission (the Commission) of Saviour Kasukuwere's nomination papers taints the process with an illegality which, according to him, violates section 91(1)(d) of the Constitution as read with section 23(3) of the Electoral Act.
It does so, because, he argues, in submitting his paper to the Zimbabwe Electoral Commission (the Commission) when he was/is not in Zimbabwe for a continuous period of eighteen (18) consecutive months, both the Commission and Saviour Kasukuwere are in violation of section 23(3) of the Electoral Act.
Their conduct, it is his view, is inconsistent with section 2 of the Constitution making the same to be null and void.
He, in short, does not want to associate himself with what he terms an illegal electoral process which is a nullity. He wants an election which resonates well with the law. A process which is inconsistent with the supreme law of the land impinges on his right to vote, according to him.
To redress the impingement, therefore, Saviour Kasukuwere's nomination papers should, he insists, be expunged from the voters register. It should be expunged because, as a non-voter, Saviour Kasukuwere, in his view, cannot be voted into any public office, let alone that of the President of the country. He cannot, goes the argument, ask the electorate to vote him into a public office when he himself cannot vote in the forthcoming election.
Saviour Kasukuwere's reliance on the restrictive approach to locus cannot assist him.
The approach is more in sync with the day-to-day application of locus in civil and/or criminal cases than it is in consonant with the human rights discourse upon which Lovedale Mangwana rests his application.
Saviour Kasukuwere's averments, which are to the effect, that, Lovedale Mangwana does not have any direct and substantial interest in his nomination into the Presidential race, are therefore of no moment.
Equally, all case authorities which he cited, amongst them Ecocash Zimbabwe (Pvt) Ltd v RBZ HH333-20; Zimbabwe Teachers Association v Minister of Education & Culture 1990 (2) ZLR 48 (HC); United Diamond Co. (Pty) Ltd v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) and a host of others which I have not mentioned in this part of the judgment, which support his restrictive approach to locus, cannot take his case any further than where he has left it.
On a proper conspectus of this application of the correct principles of law to the issue of locus, therefore, Lovedale Mangwana cannot be said not to have the requisite locus standi in judicio to approach me.
He has that on the strength of section 85(1) of the Constitution, upon which he bases his application. He also has locus on the strength of Mawarire v Mugabe NO & Others CC01-13 which, as is known, is binding on me.
His locus to apply as he did cannot be wished away. It stands undisturbed and it cannot therefore be interfered with.
The in limine matter on locus is therefore without merit and it is dismissed.
