PATEL
JA:
After
hearing argument from counsel, the court was unanimous in granting
this application in the following terms:
“1.
It is declared that the applicant is not disqualified from standing
as a candidate for election as a councillor in the forthcoming
municipal elections.
2.
There shall be no order as to costs.”
We
further indicated that our reasons would follow in due course and
these are those reasons.
BACKGROUND
The
applicant is a registered voter who was duly elected as a councillor
and mayor of Mutare in 2008. He was suspended from his position as
councillor in January 2012 by the second respondent, the Minister of
Local Government, on allegations of misconduct under section 114 of
the Urban Councils Act [Cap 29:15].
Following
the second respondent's failure to determine those allegations
within 45 days, the applicant challenged his continuing suspension
before the High Court in Case No. HC3875/12.
That
matter is awaiting set-down for hearing and is yet to be determined.
The
applicant has been requested by his constituents to stand as an
independent candidate in the council elections to be held on 31 July
2013. However, section 119(2)(i) of the Electoral Act [Cap 2:13]
disqualifies a suspended councillor from being re-elected.
The
applicant avers that this provision infringes his fundamental right
to stand for election to public office in terms of section 67(3)(b)
of the Constitution.
He
further avers that the provision is unfair, unreasonable and
arbitrary because it imputes guilt where it is not proven and
operates without interrogating the circumstances of the suspension.
It
is also unjustifiable as it presupposes that the person suspended is
not suitable for public office.
Moreover,
it is illogical and inutile and does not serve any public interest
because a suspended councillor can still stand as a candidate for
parliamentary or presidential elections.
It
has dire consequences since there is no remedy once the elections are
held, even if the councillor is subsequently vindicated and absolved
of guilt.
For
all of these reasons, the applicant contends that the provision is
unconstitutional insofar as it disqualifies suspended councillors
from standing for reelection.
The
matter is not only of personal importance but also of national
importance.
The
applicant accordingly seeks an order striking out the provision as
being inconsistent with the Constitution. He also seeks an order
directing the relevant nomination court to accept and not reject his
nomination papers on the ground of his suspension.
The
first respondent, the Zimbabwe Electoral Commission, has stated that
it would abide the decision of the court as it has no factual basis
to controvert the applicant's position.
The
second respondent, despite his obvious and direct interest in the
matter, has not filed any notice of opposition.
Nevertheless,
the fifth respondent, the Attorney-General, has opposed the
application and the relief sought.
He
avers that suspension under section 114 of the Urban Councils Act is
designed to safeguard the integrity and well-being of the urban
council concerned. A councillor who is suspended, so it is argued,
must have committed some wrong. Consequently, to allow the
re-election of a suspended councillor would circumvent and defeat the
purpose and effect of suspension.
Section
119(2)(i) of the Electoral Act is intended to protect the public
interest, public confidence and public assets. Accordingly, the
restriction against re-election imposed by that provision is not
unreasonable but necessary in a democratic society.
RELEVANT
CONSTITUTIONAL AND STATUTORY PROVISIONS
Section
67 of the Constitution guarantees the political rights of all
Zimbabwean citizens. Subsection (3) deals specifically with electoral
rights as follows:
“Subject
to this Constitution, every Zimbabwean citizen who is of or over
eighteen years of age has the right –
(a)
to vote in all elections and referendums to which this Constitution
or any other law applies, and to do so in secret; and
(b)
to stand for election to public office and, if elected, to hold such
office.”
The
limitation of any fundamental right or freedom enshrined in the
Constitution must conform with subsection (2) of section 86 which
provides that:
“The
fundamental rights and freedoms set out in this Chapter may be
limited only in terms of a law of general application and to the
extent that the limitation is fair, reasonable, necessary and
justifiable in a democratic society based on openness, justice, human
dignity, equality and freedom, taking into account all relevant
factors, including –
(a)
the nature of the right or freedom concerned;
(b)
the purpose of the limitation, in particular whether it is necessary
in the interests of defence, public safety, public order, public
morality, public health, regional or town planning or the general
public interest;
(c)
the nature and extent of the limitation;
(d)
the need to ensure that the enjoyment of rights and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
the relationship between the limitation and its purpose, in
particular whether it imposes greater restrictions on the right or
freedom concerned than are necessary to achieve its purpose; and
(f)
whether there are any less restrictive means of achieving the purpose
of the limitation.”
Section
114 of the Urban Councils Act regulates the suspension and dismissal
of councillors as follows:
“(1)
Subject to this section, if the Minister has reasonable grounds for
suspecting that a councilor –
(a)
has contravened any provision of the Prevention of Corruption Act
[Cap 9:16]; or
(b)
has contravened section one hundred and seven, section one hundred
and eight, or section one hundred and nine; or
(c)
has committed any offence involving dishonesty in connection with the
funds or other property of the council; or
(d)
has been responsible —
(i)
through serious negligence, for the loss of any funds or property of
the council; or
(ii)
for gross mismanagement of the funds, property or affairs of the
council; whether or not the councillor's responsibility is shared
with other councillors or with any employees of the council; or
(e)
has not relinquished office after his seat became vacant in terms of
this Act; the Minister may, by written notice to the councillor and
the council concerned, suspend the councillor from exercising all or
any of his functions as a councillor in terms of this Act or any
other enactment.
(2)
Any allowance that is payable to councillors in terms of this Act
shall continue to be paid to a councilor who has been suspended in
terms of subsection (1) for so long as he remains a councillor,
unless the Minister, by notice in writing to the council concerned,
directs otherwise.
(3)
As soon as is practicable after he has suspended a councillor in
terms of subsection (1), and in any event within forty-five days, the
Minister shall cause a thorough investigation to be conducted with
all reasonable dispatch to determine whether or not the councillor
has been guilty of any act, omission or conduct referred to in that
subsection.
(4)
If, following investigation, the Minister is satisfied that the
grounds of suspicion on the basis of which he suspended a councillor
in terms of subsection (1) have been established as fact, he may, by
written notice to the council and the councillor concerned, dismiss
the councillor, and the councillor's seat shall thereupon become
vacant.
(5)
A person who has been dismissed in terms of subsection (3) shall be
disqualified from nomination or election as a councillor for a period
of five years.”
It
seems necessary at this juncture to note in passing the procedure to
be followed before and after the suspension of a councillor in terms
of section 114.
Subsection
(1) requires that the suspension must be effected by written notice.
It
is trite that any administrative decision adversely affecting the
rights of another must be accompanied by the reasons for that
decision.
The
letter of suspension in casu, dated 19 January 2012, is vague in that
it refers to an earlier cautionary letter but does not itself spell
out the reasons for suspension. This omission renders questionable
its procedural validity.
Additionally,
subsection (3) enjoins the Minister to cause a thorough investigation
to be conducted in order to determine the guilt or otherwise of the
councillor, within 45 days of his or her suspension. Thereafter, upon
being satisfied of his or her guilt, the Minister must decide under
subsection (4) whether to dismiss the councillor for misconduct.
The
precise time limit for the making of such decision is not specified.
However,
having regard to the drastic nature of suspension and its highly
prejudicial effects, it seems that the decision must be taken with
reasonable expedition.
In
the instant case, although all the relevant facts are not before us,
it would appear at first glance that the second respondent has failed
to comply with the procedural requirements of section 114.
Subsections
(1) and (2) of section 119 of the Electoral Act prescribe the
qualifications and disqualifications for election as a councillor.
The relevant provisions stipulate that:
“(1)
Any person who –
(a)
is a citizen of Zimbabwe; and
(b)
has attained the age of twenty-one years; and
(c)
is enrolled on the voters roll for the council area concerned; and
(d)
is not disqualified in terms of subsection (2); shall be qualified to
be elected as a councillor.
(2)
A person shall be disqualified from being nominated as a candidate
for or from election as a councilor if –
(a)
– (h) …….. ; or
(i)
he or she is suspended in terms of section 157 of the Rural District
Councils Act [Chapter 29:13] or section 114 of the Urban Councils Act
[Chapter 29:15], as the case may be, from exercising all his or her
functions as a councillor or, having been dismissed in terms of
either of those sections, he or she is disqualified under the section
concerned from nomination or election as a councillor.”
CONSTITUTIONALITY
OF SECTION 119(2)(i) OF THE ELECTORAL ACT
As
I have already stated, section 67(3)(b) of the Constitution
entrenches the right of every citizen to stand for and hold public
office.
There
is no doubt that section 119(2)(i) operates to derogate from that
right in relation to a councillor who is either suspended or
dismissed from office.
The
crux of the present matter is whether or not that derogation falls
within the bounds of permissible limitation under section 86(2) of
the Constitution.
The
fifth respondent contends that it is justifiable in the general
public interest, while the applicant argues that the public interest
only applies where a councillor is dismissed and not where he or she
is merely suspended.
As
has been held with respect to the Declaration of Rights in the former
Constitution, any derogation from a fundamental right or freedom must
be strictly and narrowly construed.
There
must be a rational connection between the objective of the derogation
and the implementing law.
Moreover,
the means employed should not impair the right in question more than
is necessary to achieve the declared objective: see Minister of Home
Affairs & Others v Dabengwa & Another 1982 (1) ZLR 236 (S) at
244B-C; S v Hartmann & Another 1983 (2) ZLR 186 (S) at 192H; S v
Ncube & Others 1987 (2) ZLR 246 (S) at 264F.
Section
86(2) of the Constitution is essentially a restatement of the
criteria for permissible derogation from constitutional rights as
enunciated by the Supreme Court in Nyambirai v National Social
Security Authority & Another 1995 (2) ZLR 1 (S).
In
the words of GUBBAY CJ at 13C-F:
“In
effect the court will consider three criteria in determining whether
or not the limitation is permissible in the sense of not being shown
to be arbitrary or excessive. It will ask itself whether:
(i)
the legislative objective is sufficiently important to justify
limiting a fundamental right;
(ii)
the measures designed to meet the legislative object are rationally
connected to it; and
(iii)
the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.”
In
my view, the reasons advanced by the fifth respondent as justifying
the electoral disqualification of a suspended councillor do not stand
the test of these established criteria or those set out in section
86(2) of the Constitution.
(i)
First and foremost, the fifth respondent has failed to demonstrate
any rational connection between the undeniably valid objective of
protecting and preserving public assets and the need to disqualify a
suspended councillor from standing for re-election.
The
fact that a councillor is suspended on mere suspicion of misconduct
cannot possibly justify the inference that he or she must have
committed some unspecified wrongdoing or that he or she poses a
threat to public assets.
The
very suggestion of any such inference is an affront to the
time-honoured presumption of innocence.
It
can only apply, depending on the facts, where the suspended
councillor is found guilty of misconduct after due process.
The
impugned provision penalises a councillor, even though no finding of
guilt has been established, and even where he or she might
subsequently be exonerated and absolved of any guilt.
It
undoubtedly goes considerably further than is necessary to achieve
any legitimate public interest objective.
(ii)
Secondly, the effect of the provision is irreversible, conceivably
for the ensuing period of five (5) years.
If
the suspension of a councillor is nullified and set aside at any time
after nomination day, he or she is nevertheless disqualified from
standing for re-election until the next council election is held.
The
law cannot justifiably be allowed to disenfranchise a presumptively
innocent citizen for five (5) years.
This
is particularly pertinent to the impugned provision inasmuch as it is
open to the possible abuse of eliminating a political opponent from
candidature by the simple expedient of suspension and, more
pointedly, suspension founded on mere suspicion.
This
possibility of the provision being applied mala fide serves to
further attenuate its rationality.
As
was aptly observed by the Indian Supreme Court in Thappar v State of
Madras [1950] SCR 594 (SC) at 603:
“So
long as the possibility (of a limitation) being applied for purposes
not sanctioned by the Constitution cannot be ruled out, it must be
held to be wholly unconstitutional and void.”
In
conclusion, the constitutionality of section 119(2)(i) as it is
presently framed cannot be sustained for the following reasons.
The
purpose of the provision is unquestionably noble and eminently
defensible.
It
is to ensure that individuals who have a proven record of corruption
or dishonesty in the management of public funds or public assets do
not qualify for council office.
On
the other hand, there can be no doubt that the constitutional right
to stand for and hold public office is a fundamental right of
paramount political and civic importance. Any curtailment of that
right must be very closely circumscribed so as to avoid the right
being rendered nugatory.
As
I have already indicated, the impugned provision cannot be justified
as being necessary in the general public interest. Nor can it be
recognised as serving any other interest alluded to in section
86(2)(b) of the Constitution.
Moreover,
the nature and extent of the limitation imposed by the provision far
exceed the means necessary to achieve its primary purpose.
In
short, the effect of the provision is to abridge a fundamental right
in a manner that is not reasonably justifiable in a democratic
society based on respect for civic liberties and freedom.
Obviously,
the provision cannot be struck down in its entirety but only to the
extent that it applies to persons who are suspended from council
office in terms of section 157 of the Rural District Councils Act
[Cap 29:13] or section 114 of the Urban Councils Act [Cap 29:15].
It
remains unimpeachable insofar as it applies to those who have been
dismissed in terms of either of those sections and are for that
reason disqualified from nomination or election as councilors.
It
is accordingly declared that section 119(2)(i) of the Electoral Act
is unconstitutional pro tanto.
CHIDYAUSIKU
CJ: I agree
MALABA
DCJ: I agree
ZIYAMBI
JA: I agree
GWAUNZA
JA: I agree
GARWE
JA: I agree
GOWORA
JA: I agree
HLATSHWAYO
JA: I agree
CHIWESHE
AJA: I agree
Zimbabwe
Lawyers for Human Rights, applicant's legal practitioners
Nyika
Kanengoni & Partners, first respondent's legal practitioners
Civil
Division of the Attorney-General's Office, fifth respondent's
legal practitioners
