Electoral
Petition
MAKONESE
J: 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 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, 1st
to 6th
Respondents filed an Exception to the Petition on the grounds of
mis-joinder in that the citation of 1st
to 6th
Respondents was contrary to the provisions of Part XXII and section
166 of the Electoral Act. The Applicant subsequently withdrew all
actions against 1st
to 8th
Respondents, leaving the 9th
Respondent, who is now the only Respondent in this action.
Both
Applicant and 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, 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 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
shall deal with the objections raised by the Respondent in turn:
1.
FAILURE
TO SPECIFY GROUNDS RELIED UPON
It
is the Respondent's contention that in terms of section 21(e) of
the Electoral (Applications, Appeals and Petitions) Rules 1995, an
election petition; “---shall state the grounds relied on to sustain
the petition.”
The
Respondent further avers that the Applicant does not state ex
facie,
the petition the grounds upon which he relies to sustain the
petition, preferring to improperly hide the same in the Petitioner's
affidavit for this court to fish and find therefrom.
It
is further contended on behalf of the Respondent that the exact
relief the Petitioner seeks does not appear ex
facie
the petition, and such is left for the court to fish and find from
the Petitioner's Founding Affidavit and prayer.
Mr
Phulu,
for the Respondent forcefully and passionately implored the court to
find that the grounds upon which the Applicant relies upon to sustain
the petition must by law, be found in the petition, and that the
Applicant's supporting affidavit merely supports the grounds raised
in the petition itself, which petition must in terms of the Rules be
in the form of an application.
He
further pointed out that the petition exhibits no grounds ex-facie,
upon which the petition is based, further, that the Applicant has
invented his own manner and method of presenting an election
petition, outside the provisions of the statute.
Mr
Hussein,
for the Applicant strongly objected to the preliminary points raised
by the Respondent and indicated that he found the objections to be
strange in that whilst the Petition notice does not contain some
details, the Petitioner's affidavit does so comprehensively.
It
was contended on behalf of the Applicant that the Respondent's
approach was wrong and that Respondent was afflicted with some amount
of confusion.
Applicant
argued that in terms of the Electoral Act the document to be used to
complain about an undue election is a “petition.” The Electoral
Act, in the definitions section, lists, “election petition” for
definition but does not do so by what appears to be drafting error.
The Applicant contended that by default, therefore, one would seek
the definition of “petition” in the Interpretation Act [Chapter
1:01] which states:
“Any
reference in an enactment to a petition to a court shall be construed
as a reference to an application to court or to a judge, magistrate
or other judicial officer of the court, made in accordance with the
rules of the court.”
The
Applicant's main argument to the objection is that the
petition/application is merely a formal notice to an interested party
that a petition has been filed, whereas the accompanying affidavits
and Order provides the details.
The
Applicant persuaded the court to accept that the Petitioner provided
more information in the petition than was required to, and that the
Petition complied with the Rules of court.
In
determining whether the failure to specify the grounds upon which the
Petition is found in the Petition itself, it is necessarily to review
the provisions under Rule 21 of the Electoral (Applications, Appeals
and Petitioners), Rules of 1995.
The
Rule provides as follows:
“FORM
OF ELECTION PETITION
An
election petition shall be generally in the form of a court
application and shall state - - - -
(e)
the grounds relied on to sustain the petition - - - -
(g)
the exact relief sought by the Petitioner.”
The
Applicant goes further to indicate in his Petition as follows:
“TAKE
FURTHER NOTICE 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 contends, very strongly, that the supporting documents and
affidavits annexed to the Petition satisfy the requirements of Rule
21(e) and (g) of Electoral Rules as cited above.
Whilst
one may easily be tempted to agree with the Applicant it is
necessarily to closely examine the law.
I
am of the view that if it was the intention of the framers of the law
to provide that the Petition shall be accompanied by an affidavit and
supporting documents this would have been stated in clear and
unambiguous terms.
The
definition section of the Electoral Act provides as follows:
“'election
petition' means a petition referred to in section one hundred and
sixty seven.”
The
express provisions of the law allow a petitioner to lodge a petition
in terms of the laid down procedure.
The
rules and regulations for the filing and determination of electoral
petitions is governed within the four corners of the Electoral Act
and the Electoral Rules, 1995.
In
this regard, I tend to agree with the Respondent that the Petitioner
has sought to invent his own method of presenting the election
petition, which is outside the provisions of statute.
Whilst
it may be convenient for the Applicant to present a Petition with
brief grounds set out in what the Applicant refers to as the
“notice”, accompanied by an Affidavit and other supporting
documents, this does not become, in my view, the format prescribed by
statute. In any event no reasonable and acceptable explanation has
been proffered for the departure in the rules.
The
law governing the manner and grounds on which an election may be set
aside is to be found in statute and the Court can do no more than
relate to the provisions of the Electoral Act and the Electoral Rules
as they stand.
I
find support in this approach in the case of: Hove
v Gumbo
(Mberengwa
West Election Petition Appeal)
2005 (2) ZLR 85 (S).
In
the cited case, MALABA JA quoted with approval the case of Nath
v Singh and Others
(1954) SCR 892 at 895, where MAHAJAN CJ said:-
“The
general rule is well settled that the statutory requirement of law
must be strictly observed and that an election contest is not an
action at law or a suit but is a purely statutory proceeding unknown
to the common law and that the court possesses no common law power.
It is also well settled that it is a sound principle of natural
justice that the success of a candidate who has won at an election
should not be lightly interfered with and any petition seeking such
interference must strictly conform to the requirements of the law.”
The
learned Judge also alluded to the case of Sahu
v Singh and Another
(1985) LRC 31, where CHANDRACHUD CJ, had this to say at page 39:
“The
rights arising out of elections, including the right to contest or
challenge an election, are not common law rights. They are creatures
of the statues which create, confer, or limit those rights.
Therefore, for deciding the assertion whether an election can be set
aside on any alleged ground, the courts have to consult the
provisions of law governing the particular election they have to
function within the framework of that law and cannot travel beyond
it.”
The
Applicant has sought to argue that the Petition in its present form
complies with the provisions of the Electoral Rules.
To
extend the argument further, the Applicant contends that the petition
is but a notice and the accompanying affidavit provides adequate
detail narrating the grounds relied upon to sustain the petition.
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 recount was set aside by an order of the court, under
case number EC 25/13.
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
Applicant, clearly misses the point and his Petition does not comply
with the express and peremptory provisions of Rule 21(e) and (g) of
the Electoral Rules and it is on the basis of the non-compliance,
which non-compliance the court may not condone, the petition is held
to be fatally defective, beyond cure or redemption that I would
uphold the Respondent's point in
limine.
2.
THE GROUNDS RELIED UPON ARE VAGUE AND IMPRECISE
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 horn, which resembled the ZAPU party emblem
which used a bull 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 Rules, 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.
The
Petitioner is required by the Rules to state in clear and unambiguous
terms the nature of his complaint.
The
Respondent in this instance will clearly be embarrassed because she
does not know how to respond to these general and rambling
accusations, which as it turns out, are not directed at her but to
some unknown persons.
The
Applicant's affidavit contains far too many broad and vague
generalisations of irregularities which cannot give rise to triable
issues.
I
would therefore sustain the Respondent second point in
limine
and find that the petitioner's grounds of complaint are vague and
imprecise to the extent of non-compliance with the Rules of the
Electoral Court.
The
Respondent asked for costs at the higher scale in their Heads of
Argument but when the matter was argued there was no serious intent
on the part of the Respondent to recover costs on a punitive scale. I
do not consider the arguments raised on behalf of the Applicant to be
outrageous so as to attract costs on the higher scale.
In
the result, the Respondent's preliminary points are sustained and I
make the following order:
1.
The Electoral Petition filed by the petitioner in this case is
fatally defective and of no force and effect for want of compliance
with Rule 21(e) and (g) of the Electoral (Applications, Appeals and
Petitions) Rules, 1995.
2.
The Applicant's Petition is hereby dismissed with costs.
3.
The Respondent Roseline Nkomo be and is hereby declared duly elected
member of the National Assembly for the Tsholotsho North
Constituency.
4.
The Registrar be and is hereby directed to proceed in terms of
section 171(3)(a)(ii) of the Electoral Act [Chapter 2:13].
Hessein
Ranchhord and Co.c/o J Sibanda & Associates,
applicant's legal practitioners
Phulu
and Ncube,
respondent's legal practitioners
