Rule
23 of the Constitutional Court Rules governs disputes relating to the
election to the Office of President. It prescribes the process and
progression of a Presidential election petition or court application
filed in terms of section 93(1) of the Constitution….,.
WHETHER
THE APPLICATION IS PROPERLY BEFORE THE COURT
THE
LODGING OF THE COURT APPLICATION
The
first respondent, the Zimbabwe ...
Rule
23 of the Constitutional Court Rules governs disputes relating to the
election to the Office of President. It prescribes the process and
progression of a Presidential election petition or court application
filed in terms of section 93(1) of the Constitution….,.
WHETHER
THE APPLICATION IS PROPERLY BEFORE THE COURT
THE
LODGING OF THE COURT APPLICATION
The
first respondent, the Zimbabwe Electoral Commission, the
twenty-fourth (the
Chairperson of the Zimbabwe Electoral Commission)
and the twenty-fifth (the
Chief Executive Officer of the Zimbabwe Electoral Commission)
respondents took points in limine. One of the points in limine was
that the court application was not properly before the Court.
Although
filed within seven days, as is stipulated by section 93(1) of the
Constitution, the court application was served on the respondents on
the eighth day, in violation of Rule 23(2) of the Rules. In addition,
the applicant served the application only on the first respondent on
his own, rather than through the Sheriff as required by the Rules.
The
first respondent was declared to be duly elected as President of the
Republic of Zimbabwe on 3 August 2018. In terms of section 93(1) of
the Constitution, as read with Rule 23(2) of the Rules, the applicant
had until 10 August 2018 to file and serve the court application on
the respondents.
The
applicant appears to have been cognisant of the reckoning of days and
times prescribed by the Constitution. He waited until the last day
before filing the court application with the Registrar shortly before
close of business on 10 August 2018. He was entitled by law to do so.
Having
filed the court application with the Registrar, the applicant was
required, by Rule 23(2) of the Rules, to serve the court application
on all the respondents within the prescribed period.
Rule
9(7) of the Rules required the court application, as process
initiating litigation in the Constitutional Court, to be served by
the Sheriff within the period prescribed for the service of the
process.
The
respondents submitted that the applicant instructed the Sheriff to
serve the court application outside the period prescribed for service
of process.
The
contention advanced on behalf of the applicant was that the Sheriff
was given the instruction to serve the documents on the respondents
eight hours before the expiry of the prescribed period. The
allegation was made that the Sheriff executed service of the court
application and the supporting documents on the respondents outside
the prescribed period. The applicant put the blame for failure to
serve the respondents timeously on the Sheriff.
The
affidavits submitted by the respondents show that the applicant had
attempted to effect service of the court application and the
supporting documents without the involvement of the Sheriff on 10
August 2018.
It
is common cause that the court application was eventually served on
the respondents on 11 August 2018 - outside the period prescribed by
the Rules. Service was outside the period of seven days prescribed in
section 93(1) of the Constitution as the period within which a
petition or application by an aggrieved candidate challenging the
validity of a Presidential election had to be lodged.
The
notices of opposition would have been due within three days from that
date, being 14 August 2018.
In
terms of section 336(2) of the Constitution:
“Subject
to this Constitution, whenever the time for doing anything in terms
of this Constitution ends or falls on a Saturday, Sunday or public
holiday, the time extends to and the thing may be done on the next
day that is not a Saturday, Sunday or public holiday.”
The
dies induciae having expired on 14 August 2018, which was a public
holiday in Zimbabwe, the notices of opposition had to be filed on the
next business day, being 15 August 2018. They were duly and properly
filed with the Registrar on that date.
WHETHER
THE COURT APPLICATION WAS FILED OUT OF TIME
Counsel
for the first respondent submitted that the court application was
filed out of time. The submission was that to successfully lodge an
application in terms of section 93(1) of the Constitution, as read
with Rule 23(2) of the Rules, it was imperative to file and serve the
court application on the interested parties within seven days of the
declaration of the Presidential election result.
The
first respondent also argued that the seven-day period, as
contemplated by the Constitution, included weekends.
Counsel
for the first respondent argued that the purpose of section 93(1) of
the Constitution was to afford an aggrieved candidate an opportunity
to challenge the validity of the Presidential election at the
earliest time possible, bearing in mind the importance of the Office
of President.
Counsel
for the twenty-third, twenty-fourth and twenty-fifth respondents also
submitted that the court application was served out of time. It was
his position that “lodge”, as contemplated by section 93(1) of
the Constitution, meant that the court application had to be filed
and served on all the respondents within seven days. He submitted
that, for service of the court application to be effective, it had to
be executed by the Sheriff.
According
to the applicant, the word “lodge”, as used in section 93(1) of
the Constitution, means to file the court application with the
Registrar.
Counsel
for the applicant sought to rely on section 169 of the Electoral Act
[Chapter 2:13] to support the contention that the court application
was timeously filed and served on the respondents.
Section
169 of the Electoral Act sets out the time-frame for service of
election petitions presented to the Electoral Court where one
complains of an undue return or an election of a Member of Parliament
by reason of want of qualification, disqualification, electoral
malpractice, irregularities, or any other cause. In terms of section
169 of the Electoral Act, the petition shall be served on the
respondents within ten days after the presentation of the petition,
either personally or by leaving the same at his or her usual or last
known dwelling or place of business.
Counsel
for the first respondent submitted that section 169 of the Electoral
Act was of no relevance to the construction of section 93(1) of the
Constitution, which begins with the words “subject to this
section”. The effect of the use of the words “subject
to this section” is that any provision on time limits within which
anything is required to be done which is contrary to what is
prescribed under section 93(1) of the Constitution would have to be
subservient to the provisions of section 93(1) of the Constitution.
THE
LAW GOVERNING THE FILING AND SERVICE OF A COURT APPLICATION MADE IN
TERMS OF SECTION 93(1) OF THE CONSTITUTION
Section
93(1) of the Constitution provides that any aggrieved candidate may
challenge the validity of an election of a President by lodging a
petition or application with the Court within seven days after the
date of the declaration of the result of the Presidential election.
Subsection (3) of section 93 enjoins the Court to hear and determine
the petition or application lodged in terms of subs (1) within
fourteen days after the application is lodged.
The
meaning of the word “lodge” was the point of departure for the
parties.
The
applicant's view was that it meant simply filing the application
with the Registrar. The respondents, on the other hand, contended
that 'lodge' means to file the application with the Registrar and
serve it on the respondent within seven days after the date of the
declaration of the result of the Presidential election.
It
is not possible to find the true meaning of “lodge”, as used in
section 93(1) of the Constitution, without having regard to the
relevant provisions of the Constitutional
Court Rules.
The general principle is that when one interprets a constitutional
provision, any law that is subsidiary to the Constitution must be
read together with the constitutional provision in question. The
subsidiary law must be given effect as long as it is constitutionally
valid.
It
is common cause that the constitutionality of the Rules was not
questioned. They are valid and fully applicable.
Section
93(1) of the Constitution simply states that an aggrieved candidate
may lodge an application within seven days after the date of the
declaration of the Presidential election result. If he or she decides
to do so, the lodgment of the petition or application must be
effected within seven days of the declaration of the Presidential
election result. The finer details of how the petition or application
is effectively lodged are left to be prescribed by the Rules.
Section
93(1) of the Constitution confers on an aggrieved candidate the right
to challenge the validity of a Presidential election. It confers on
the aggrieved candidate the right of access to the Court. Where there
is a right, there is a remedy. The remedy is the provision for the
institution of proceedings in the Constitutional Court by way of a
petition or application to vindicate the right to challenge the
validity of a Presidential election. The right to the remedy is
conditional upon the petition or application being lodged with the
Court within seven days of the declaration of the Presidential
election result.
Section
93(1) of the Constitution makes provision for both substantive and
procedural rights. The question of filing and serving process is a
question of procedure which falls within the purview of the
Constitutional Court Rules.
In
Tsvangirai v Mugabe and Ors CC20-17 the Constitutional
Court
held that section 93 of the Constitution must be considered as one
whole. All other provisions which have a bearing on its true meaning
must be considered so as to enforce the spirit and underlying values
of the Constitution. At p14 of the cyclostyled judgment the Court
said:
“What
is not to be overlooked when interpreting the provisions of section
93 of the Constitution is the fact that they set up a procedural
mechanism, the purpose of which is the protection of the fundamental
right of every Zimbabwean citizen to a free, fair and credible
election for the public office of President. It is a procedural
mechanism, the implementation of which is intended to uphold the
fundamental principle of the rule of law on which Zimbabwe is
founded.”…,.
Rule
23 of the Constitutional Court Rules provides, in relevant part, as
follows:
“23.
Dispute relating to the election to the office of President or Vice
President
(1)
An application where the election of a President or Vice President is
in dispute shall be by way of court application.
(2)
The application shall be filed with the Registrar and shall be served
on the respondent within seven days of the date of the declaration of
the result of the election.”…,.
Rule
23(2) of the Rules explains the meaning of the word “lodge”, as
contemplated by section 93(1) of the Constitution.
In
terms of the subrule, to 'lodge' means to file and serve the
application made in terms of section 93(1) of the Constitution within
seven days of the declaration of the Presidential election result.
There
is no merit in the applicant's contention that “lodge”, as used
in section 93(1) of the Constitution, means to place the application
in the Registrar's office. That interpretation would negate the
effect of the intended relationship between the constitutional
provisions and the Rules that are intended to give effect to them.
Section
93(1) of the Constitution cannot stand on its own because it sets up
a general procedural mechanism, the specifics of which are grounded
in the Rules. The law, as sanctioned by the Constitution itself,
requires that the application be filed and served within seven days
of the declaration of the Presidential election result.
THE
APPLICABILITY OF SECTION 169 OF THE ELECTORAL
ACT
It
is also important to highlight that section 169 of the Electoral Act
does not apply to a court application that is brought to the
Constitutional Court in terms of section 93(1) of the Constitution.
This is so because section 169 of the Electoral Act applies to
election petitions presented to the Electoral Court. More
importantly, the Electoral Act itself recognises the distinction
between petitions presented to the Electoral Court in terms of the
Electoral Act and petitions brought to the Constitutional Court in
terms of section 93(1) of the Constitution.
Section
111 of the Electoral Act specifically provides for election petitions
in respect of the election to the Office of President.
Consistent
with section 93(1) of the Constitution, section 111(1) of the
Electoral Act provides as follows:
“(1)
An election petition complaining of an undue return or an undue
election of a person to the office of President, by reason of
irregularity or any other cause whatsoever, may be presented to the
Constitutional Court within seven days of the declaration of the
result of the election in respect of which the petition is presented,
by any person -
(a)
Claiming to have had a right to be elected at that election; or
(b)
Alleging himself or herself to have been a candidate at such
election.”…,.
In
the light of the provisions of section 111(1) of the Electoral Act,
there was no merit in counsel for the applicant's attempt to
persuade the Court to apply section 169 of the Electoral Act to purge
the applicant's non-compliance with the requirements of section
93(1) of the Constitution. The applicant had to file and serve the
application on all the respondents within seven days of the
declaration of the Presidential election result by the twenty-fourth
respondent.
COMPUTATION
OF DAYS
There
was also no merit in the applicant's computation of days. The
Constitution does not refer to weekdays but days. This is to be taken
to mean seven calendar days and includes Saturdays and Sundays.
In
terms of Rule 23(2) of the Rules, the court application shall be
lodged with the Registrar and shall be served on the respondent
within seven days of the declaration of the result of the
Presidential election.
The
applicant's interpretation of section 93(1) of the Constitution
does not accord with the importance that is attached to the
declaration of a Presidential election result, and the need for
certainty as to who is the President soon after the Presidential
election result is declared. The intention behind section 93 of the
Constitution is that the Office of President be filled immediately
after a declaration of the Presidential election result. In the event
that the validity of the Presidential election is challenged, it is
the will of the people, as expressed in section 93(3) of the
Constitution, as read with Rule 23(7) of the Rules, that the
challenge be determined within fourteen days after the application is
lodged.
The
importance of the Office of President and the reason why the
determination of who holds that office should be finalised as soon as
possible after a declaration of the Presidential election result were
highlighted by the Court in Tsvangirai v Mugabe and Ors CC20-17…,.
The Constitutional
Court
said:
“Every
constitutional democracy sets great value on the office of President
in the distribution of the powers of the State. By the Constitution,
the people, in the exercise of their sovereign authority designated
the office of President as one of the most important offices. They
assigned to the office of President powers by the lawful exercise of
which they committed themselves to be governed in accordance with the
conditions they prescribed. An election of a President is therefore a
central institution for securing democratic self-government. By the
election, the people choose the person who will exercise the powers
of self-government for their benefit….,.
An
election of a President in Zimbabwe is a popular affair, in that
every citizen registered on a voters roll at ward and constituency
level countrywide is eligible to vote for a President…,. Once
chosen, in a free, fair and credible election, a President assumes an
office with enormous powers which he or she is required to exercise
in accordance with the Constitution or any other law….,.
An
election of a President is bound to generate profound public
interest, not necessarily measured by the number of votes cast in the
election. Stakes are very high and political tensions may rise to
levels that threaten public order and national security. The election
of a President is not just about finding an answer to the question
who of the candidates should be the leader of the Government. It is
about choosing a leader who will have the interests of all Zimbabwean
citizens at heart and has the intellectual ability to exercise the
powers of the office in accordance with the fundamental principles
and values on which a democratic society is based to change the lives
of the people for the better.
By
the very nature of the circumstances in which it arises, a petition
or application challenging the validity of an election of a President
alleging that the President-elect stole the election requires
effective and urgent determination on the merits. It is indicative of
simmering political tension and potential disturbance of public peace
and tranquility. The cause is the very fact that those who would have
voluntarily taken part in the electoral process, convinced that the
rules by which they act guarantee the validity of the electoral
outcome, challenge it as losers.”…,.
It
is because of the essential nature of the Office of President, and
the emotions surrounding a Presidential election, that the
requirement to file and serve a challenge to the election result must
be strictly honoured. It is after the filing and service of the
application, within seven days of the declaration of the Presidential
election result, that all other procedures for the filing of
opposition papers and heads of argument in the matter start to kick
in.
The
time-frames set out in Rule 23 of the Constitutional Court Rules are
computed from the day that the court application is filed and served.
From that day, the Court, the opposing parties, as cited in the
application, and the nation at large, begin to prepare themselves for
the hearing and determination of the question whether the
Presidential election was free, fair and credible.
It
follows from all of the foregoing that, although the application in
casu was filed within the prescribed seven-day period, it was not
served on the respondents within that time-frame.
Accordingly,
it cannot be held to have been duly lodged in accordance with the
applicable provisions of the Constitution and the Rules.
