Judgment
MANGOTA
J:
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 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 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 Kasukuwere whom he claims was out of Zimbawe for more
than eighteen (18) consecutive months is, in terms of section 23(3)
of the Act, no longer a registered voter.
He
claims that, as a person who ceased to be a registered voter,
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 Kasukuwere's paper
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 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
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
Commission and the Minister not to include the name of 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 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.
Kasukuwere
opposes the application.
The
Commission and the Minister did not file any notice of opposition.
The Commission filed what it terms its notice to abide 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 Commission and the Minister leaves Mangwana and
Kasukuwere in the question.
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)
Mangwana does not have what is normally referred to as the locus
standi in judicio;
(iv)
Mangwana approached the court in terms of an incorrect law and in an
incompetent forum; and
(v)
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 Mangwana to prove the allegation which he (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 Mangwana to state the manner in which his candidature
would affect 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 Commission verified
his address in terms of section 23(3) of the 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 Mangwana makes bare allegations regarding his absence
from Zimbabwe.
He
contends that Mangwana has not established any right which the court
should protect. 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 Mangwana's right to vote.
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 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.
Mangwana,
he avers, should have engaged the processes in terms of the Act well
before 21 June, 2023. The conduct of Mangwana, he claims, is
self-inflicted urgency.
He
alleges that the application is no more than 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.
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 Mangwana's founding papers, is one for a
declaratur and consequential relief.
It
is pertinent for me at this stage to deal with Mangwana's
application.
In
doing so, I remain alive to the preliminary issues which 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
JURISDICTION
The
first matter which Kasukuwere raises on this aspect of the case is
that I do not have the jurisdiction to hear and determine this
application.
Jurisdiction,
simply considered, means the power or competence of a court to hear
and determine a matter which has been placed before it.
Various
courts have various jurisdictions to hear a matter. Jurisdiction, in
some cases, is conferred upon a court by law - statute or otherwise.
Section
171(1)(a) and (c) of the Constitution of Zimbabwe (No.20) Act of 2013
(“the Constitution”), for instance, confers upon me the
jurisdiction to hear and determine all civil and criminal matters
throughout Zimbabwe as well as to decide constitutional matters
except those that only the Constitutional Court may decide.
A
near example of where I have no power or competence to hear and
determine a matter is, as counsel for Mangwana correctly submits, my
competence to hear or determine a Presidential election dispute.
That,
it stands to reason and logic, remains a preserve of no court in
Zimbabwe other than the Constitutional Court of Zimbabwe. It, in
other words, falls into the exceptions category which are stated in
the last part of paragraph (c) of subsection (1) of section 171 of
the Constitution.
It
is on the strength of section 171(1)(a) and (c) of the Constitution
that I hold the view that I have the requisite jurisdiction to hear
the application which Mangwana placed before me. Kasukuwere's
argument would have held if Mangwana invited me to hear a
Presidential election dispute.
What
he placed before me is not such. It is an ordinary urgent court
application for a declaratur and consequential relief.
I,
accordingly, have the requisite jurisdiction to hear and determine
the application both as a civil and a Constitutional case.
I
do have that on the basis that it is filed in terms of the rules of
this court.
In
holding the view which I hold on this aspect of the application, I
take comfort in the decision which the Supreme Court made in Guwa
& Anor v Willoughby's Investments (Pvt) Limited
2009 (1) ZLR 368 (S) in which it is remarked that:
“In
terms of jurisdiction, the distinction between the Supreme Court and
the High Court may be summarized as follows:
Except
where specifically empowered, the Supreme Court has no jurisdiction
to hear or determine any matter and may only exercise powers in
respect of an appeal in terms of the provisions of the Act and Rules
of Court. The High Court on the other hand has the jurisdiction to
hear all matters except where limitations are imposed by law.
In
other words, whilst the Supreme Court may do nothing that the law
does not permit, the High Court may do anything that the law does not
forbid.”
Kasukuwere's
assertion on this aspect of the case is opaque.
Opaque
in the sense that he does not state the actual reason why he denies
me the opportunity to hear Mangwana's case. He seems to suggest
that, because the application is election-related, I cannot, as a
judge of this court, hear it. He also suggests that Mangwana should
proceed in terms of provisions of the Act to review the decision of
the Commission and have it set aside, if such is his intention.
His
argument is misplaced.
The
application, though it has a bearing on the events of 21 June 2023 in
terms of which he was nominated to stand for the office of President
for Zimbabwe, is filed as an ordinary urgent court application and
not as an application which falls under the Act.
It
states in clear and categorical terms that it is an urgent court
application which is filed in terms of Rule 107 of the High Court
Rules, 2021 as read with section 85(1) of the Constitution.
It,
accordingly, falls within my domain to hear and determine it.
The
in limine matter which he raises on me having, or not having, the
jurisdiction to entertain the application is, therefore, without
merit. It is dismissed.
APPLICATION
IS A REVIEW DISGUISED AS A DECLARATUR
Whilst
a review and a declaratur are intertwined, and at times, confusing to
a student of law, the same are not synonymous. They are separate and
distinct one from the other.
A
review seeks to impugn a decision which has been made by a court of
inferior jurisdiction, a quasi-judicial office or an administrative
authority. It has its domain in section 26 of the High Court Act as
read with Rule 62 of the High Court Rules, 2021.
In
terms of the law of practice and procedure, an application for review
states the grounds of review and the relief which the applicant moves
the court to grant to him or her.
A
declaratur, on the other hand, relates to rights of persons qua
persons. These may be existing, future or contingent in nature.
The
Electoral Court upon which Kasukuwere places reliance is a creature
of statute. Its powers are circumscribed in section 161 of the Act.
The section reads:
“(1)
There is hereby established a court, to be known as the Electoral
Court, which shall be a court of record.
(2)
The Electoral Court shall have exclusive jurisdiction -
(a)
To hear appeals, applications and petitions in terms of this Act; and
(b)
To review any decision of the Commission or any other persons or
purporting to have been made under the Act and shall have power to
give such judgments, orders, and directions in those matters as might
be given by the High Court: provided that the Electoral Court shall
have no jurisdiction to try any criminal case.
(3)………………………”
It
is on the strength of the above cited subsections of section 161 of
the Act that Kasukuwere insists that the application is one for
review which is disguised as a declaratur.
He
submits, erroneously in my view, that the decision which the
Commission made in the exercise of its powers is judicial in
character and therefore reviewable.
The
catch words, according to him, is that the Electoral Court has
exclusive jurisdiction to hear appeals, applications and petitions in
terms of the Act.
He
submits further that, because the dispute which Mangwana placed
before me emanates from the process that was conducted in terms of
the Act, it is the Electoral Court and not the High Court that can
deal with it.
What
Kasukuwere fails to appreciate is that, as a creature of statute, the
Electoral Court does not have the capacity to act outside the four
corners of its enabling law. The law allows it to hear and determine
applications, among other matters.
It
does not confer upon it the jurisdiction to hear urgent court
applications. That matter is not provided for in the Act or in its
rules. It is, however, present in the High Court Act and its rules.
Hence
the view that the argument of Kasukuwere on this aspect of the case
is misplaced.
As
Mangwana correctly submits, the contention that the application is a
disguised review is difficult to comprehend.
It
is not such.
It
does not raise any grounds of review. It is filed in terms of Rule
107 and not Rule 62 of the rules of court.
The
fact that a review could have been brought does not detract from the
fact that it is an application for a declaratur.
It
cannot be brought as a review under the Act because the same does not
make provision for declaraturs.
Further
a review under the Act has no remedy for a declaratur.
The
remedy for such is under the High Court Act and its rules and not
under the Electoral Act and its rules. The stated matter is moot. The
in limine matter is, therefore, devoid of merit and it is dismissed.
LOCUS
STANDI IN JUDICIO
Mangwana,
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: 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) at 205 takes the definition of locus further
than where 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 precondition 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, p132.
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 at 740 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 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 Mugamba NO & Others,
CCZ 1/13 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 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, 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 Commission of
Kasukuwere's nomination paper 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 Act.
It
does so, because, he argues, in submitting his paper to the
Commission when he was/is not in Zimbabwe for a continuous period of
eighteen (18) consecutive months, both the Commission and Kasukuwere
are in violation of section 23(3) of the 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 Kasukuwere's nomination paper
should, he insists, be expunged from the voters register. It should
be expunged because, as a non-voter, 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.
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 Mangwana rests his application.
Kasukuwere's
averments which are to the effect that 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, 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 Mugamba (supra)
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.
INCORRECT
LAW AND INCOMPETENT FORUM
Kasukuwere
does not come out clearly on what he intends to convey by this
preliminary point. He seems to suggest that Mangwana should have
proceeded in terms of the Act and its rules as well as in the
Electoral Court and not in this court.
If
my understanding of this in limine matter is on all fours with what I
have stated, then I shall not repeat myself on the same.
I
shall not do so because, I traversed that aspect of the case
extensively when I considered the in
limine
matter which he raised on the allegation that the application is one
for review which is disguised as a declaratur.
I
gave reasons as to why the current application cannot fall under a
review as well as why it should be considered in the form and
substance that Mangwana filed it.
I
state, for the avoidance of doubt, that the application employed the
correct law and is properly placed in the High Court, and not in the
Electoral Court.
The
preliminary point is therefore devoid of merit and it is dismissed as
well.
APPLICATION
VIOLATES THE PRINCIPLE OF SUBSIDIARITY
Majome
v Zimbabwe Broadcasting Corporation & Ors,
CCZ 14/16 lays down the parameters of the above-mentioned principle.
It is in that case more than in any other that the Constitutional
Court of Zimbabwe discussed the principle in the following words:
“According
to the principle of subsidiarity, litigants who aver that a right
protected by the Constitution has been infringed must rely on
legislation enacted to protect the right and may not rely on the
underlying constitutional provision directly when bringing action to
protect the right unless they want to attack the validity or efficacy
of the legislation itself.”
It
is on the basis of the foregoing case authority that Kasukuwere
insists that, before Mangwana resorts to the Constitution, he should
resort to the Electoral Act which provides a remedy to him.
Kasukuwere states the principle aptly when he avers that, a litigant
who avers that a right which is protected by the Constitution has
been infringed must rely on the legislation which is enacted to
protect that right and may not rely on the underlying constitutional
provision directly. Mangwana's remedy, he asserts, lies in the
Electoral Act which, according to him, envisages a factual enquiry
before his name may be struck off the voters roll. He refers me to
sections 23, 28 and 33 of the Act. Those, he insists, offer a remedy
to Mangwana.
He
argues that it is incompetent for Mangwana to seek a relief which can
be granted under some law without invoking a constitutional
provision.
He,
in the mentioned regard, places reliance on Mazibuko
and Ors v City of Johansburg and Ors,
(2009) ZACC 28 in which it was stated that:
“Where
legislation has been enacted to give effect to a right, a litigant
should rely on that legislation in order to give effect to the right
or alternatively challenge the legislation as being inconsistent with
the Constitution”.
What
Kasukuwere is saying, in short, is that Mangwana should not have
filed this application in terms of section 85(1) of the Constitution.
He should, he insists, have filed it under the Electoral Act and its
rules.
By
filing it under the Constitution, Mangwana, it is his view, violated
the principle of subsidiarity.
Kasukuwere
does not, however, identify a provision of any law in terms of which
the violation of Mangwana's rights could have been brought.
The
sections he referred me to do not appear to support his case.
Counsel
for Mangwana discusses those sections of the Act in a succinct
manner. He submits that:(i) Section 23 of the Act does not make
reference to any process by which to complain against the decision of
the Commission.
(ii)
Section 28 of the same relates to the right of one voter to object to
the retention of the name of another voter on the voters roll of the
constituency in which the objecting voter is registered and,
according to him, the facts of the present application do not make
any accommodation for this provision.
(iii)
Section 33 of the Act deals with the powers of a voter registration
officer to remove names from the voters roll and it therefore has no
relevance to the decision of the Commission or to Mangwana who is not
a voter registration officer.
As
is evident from the submissions of counsel for Mangwana, there is in
the Act no subsidiary provision on the strength of which the point
which counsel for Kasukuwere raises can find feet and be applied.
In
the absence of a provision which supports the case of Kasukuwere on
this aspect of the application, Mangwana quite rightly relied on
section 67 of the Constitution to apply as he did. He cannot, in the
circumstances, be said to have violated the principle of
subsidiarity. His application was well within the law.
The
in limine matter is therefore dismissed.
SECTION
23(3) OF THE ELECTORAL ACT
Having
disposed of the preliminary points which Kasukuwere raised, it is
therefore pertinent for me to go into the raison de'etre of this
application.
The
same is premised on the above section of the Act. It reads:
“A
voter who is registered on the voters roll for a constituency, other
than a voter who has been registered in that constituency in terms of
the proviso to subsection (1), shall not be entitled to have his or
her name retained on such roll if, for a continuous period of
eighteen months, he or she has ceased to reside in that constituency;
Provided
that nothing in this subsection shall prevent his or her name from
being struck off such voters roll -
(a)
On his or being registered in another constituency; or
(b)
If he or she becomes disqualified for registration as a voter.”
The
law as stated in the section of the Act was made by the Legislature.
The
section does not spell out its purpose.
The
parties to this case did not address me on the mischief which the
Legislature intended to cure when it enacted the law. They left that
aspect of the case to conjecture. Yet it is a fact that each law
which the law-maker promulgates aims to address a particular mischief
which the Legislature would have observed at the time that it makes a
law.
It
is my considered view that, in providing as it did in section 23(3)
of the Act, the Legislature's intention was/is to allow only
persons who are familiar with the issues which are in Zimbabwe the
right to vote or to be voted in an election.
It
considered that the person's knowledge of the issues informs the
way in which he or she would, if elected into any public office,
define the correct path for the people who are in this country to
follow.
It,
in short, preferred persons who are abreast with the challenges which
the country is facing to vote or to be voted into a public office to
persons who view Zimbabwe's challenges from the window of their
computer or from some newspaper which circulates in the area where
they are staying.
It
considered that a person's absence from his constituency or from
Zimbabwe for a continuous period of eighteen months or more to be
sufficient for one not to be abreast with issues which obtain in
Zimbabwe.
It,
in its wisdom or lack of it, placed emphasis on the point that such a
person as remains outside his or her constituency, or fortiori his or
her country, should be disenfranchised.
Disenfranchised
because his or her vote, let alone his or her occupation of a public
office, would not add any value or benefit to the people of Zimbabwe.
So
strong was its view on this matter that it repeated the same law in
paragraph (a) of subsection (2) of section 33 of the Act. This reads:
“(2)……,
if a voter registration officer is satisfied that a voter registered
on a voters roll -
(a)
Has been absent from his or her constituency for a period of twelve
months or longer and is not a voter who was registered with the
approval of the Commission in a constituency in which he or she was
not resident; or
(b)…………………………………….;
The
voter registration officer shall remove such voter's name
therefrom.”
Sections
23 and 33 must, in my view, operate in tandem. The only difference
between them, as I see it, is that with the former, an application
such as the present one can be entertained by the court.
It
opens an avenue to an applicant, in
casu
Mangwana, to approach the court as well as to object to the retention
of Kasukuwere's name on the voters roll or to enter into the
political race to be elected into a public office in Zimbabwe on the
ground that his election when he allegedly was out of the country for
more than eighteen consecutive months impinges on Mangwana's right
to vote in a lawful electoral process.
The
latter provision, section 33 of the Act, confers power on the voter
registration officer to mero
motu
remove the name of the voter from the voters roll in circumstance
where he is satisfied that the voter was/is absent from his
constituency for twelve months or more.
He
removes it after he has made the necessary inquiry which is
stipulated in the section and has satisfied himself that the voter
has been absent from his constituency for twelve months or more.
Whether
or not Kasukuwere violated section 23(3) of the Act is a matter of
evidence.
Mangwana
alleges that he did. He, accordingly, bears the onus to prove the
allegation which he is making.
Onus
is the duty which is cast upon the particular litigant, in order to
be successful, of finally satisfying the court that he is entitled to
succeed on his claim, or defence, as the case may be: Pillay
v Krishna & Anor,
1946 AD 946 at 952-3.
The
cardinal rule on onus is that a person who claims something from
another must satisfy the court that he is entitled to it: ZUPCO
Limited v Parkhorse Services,
SC 13/17.
Onus
is, however, not a static phenomenon. It shifts between the parties
depending on what one alleges against the other and the latter's
response to the same.
In
casu,
Mangwana makes a statement which, in the main, is to the effect that
Kasukuwere was not in Zimbabwe, and therefore in his constituency,
for a period which is in excess of eighteen continuous months.
The
assertion which he makes is in the negative. He is, therefore, not
required to prove it at law. He, in this regard, takes refuge in the
learned words of Van Der Linden who remarked in The Institutes of
Holland, (H. Juta Translation) (3rd
edition) p155 that “a negative is generally, on account of its
nature, incapable of proof”.
Kasukuwere,
for some inexplicable reason, snatches the onus from Mangwana to
himself.
He
challenges Mangwana to challenge him to prove that he was not out of
Zimbabwe for more than eighteen consecutive months.
He
poses the challenge in para 22.3 of his notice of opposition wherein
he avers that 'if Mangwana desires further proof, he can provide
it'.
He
confirms, in para 22.6, that he was once out of Zimbabwe on a
temporary basis when he went for treatment.
He
does not, however, show, as he offers to do, the date(s) that he left
Zimbabwe and/or the date(s) that he returned to Zimbabwe. Nor does he
attach to his notice of opposition a doctor's report which
indicates that he was/is indeed receiving medical attention from
outside Zimbabwe. All what he does is to depose to his opposing
affidavit not from Zimbabwe but from South Africa.
The
observed matter confirms that, even as the application is being
heard, he is not in Zimbabwe and/or in his constituency as well as
that he will return to Zimbabwe at some future but unknown date.
The
statement which Kasukuwere makes in para 22.6 of his opposing papers
throws him at the feet of Mangwana's averments more than it takes
him out of the same.
He
makes an admission that he once left Zimbabwe for medical reasons.
He,
however, does not place me into his confidence on that aspect of the
case. He refuses to disclose matters which relate to his absence from
Zimbabwe. He assumes the obligation to prove his own side of the case
but does not do so at all.
The
bare denial which he makes when he took upon himself to prove his own
side of the case cannot take his notice of opposition any further
than where he leaves it.
Kasukuwere
is the holder of his own passport. This was issued to no one else but
to him. A passport is a national document which is specific to its
holder. It is not accessible to Mangwana or to any person who has no
business with it.
Nothing,
therefore, prevented Kasukuwere, its holder, from availing a
certified copy of the same to me as a way of showing the veracity of
his assertions.
Surely
as a person who is aspiring to the highest office on the land, he
could easily have dispelled the omnious allegation as a result of
which he would have acquitted himself well.
He
would, by the stated process, have shown the date(s) that he left
Zimbabwe going for treatment as well as the date(s) that he returned
to Zimbabwe and, therefore, to his constituency. His failure to
produce his passport leaves his case hanging in the balance, so to
speak.
His
non-disclosure of the correct circumstances of his side of the case
leaves me with no option but to draw an adverse inference against
him.
Against
him because he has at his disposal what it takes to unravel the truth
of what is alleged against him.
I,
on the basis of the foregoing, therefore, find that Kasukuwere was
out of Zimbabwe, and therefore out of his constituency, for a
continuous period of more than eighteen months.
The
finding is premised on his admission that he once left Zimbabwe for
medical grounds as read with the place from which he prepared and
deposed to his opposing papers as read together with his statement
which is to the effect that he can provide proof of the fact that he
did not remain outside the country for more than eighteen consecutive
months which he does not prove. This is a fortiori the case because,
even where Mangwana challenges him in para 17 of the founding
affidavit, to prove that he was not in Zimbabwe for more than
eighteen months which precedes his nomination into the Presidential
race, he offers to prove the same but does not do so, for reasons
which he does not advance.
He
has no difficulty to show papers which prove that he went outside
Zimbabwe to be treated. Nor does he have any difficulty to show that
he was, indeed, treated and/or that his passport shows that he left
and returned to Zimbabwe at some point in time between 31 July, 2018
and the date that he filed his nomination paper with the Commission.
He has his passport on him and the doctor(s) who attended to his
medical condition, if he was, would not have refused to give him the
report which relates to his treatment.
His
bare denial and challenge to Mangwana to prove the negative which he
made cannot assist him at all.
URGENCY
What
constitutes urgency is not the imminent arrival of the day of
reckoning. A matter is urgent if, at the time the need to act
arises, the matter cannot wait: Kuvarega
v Registrar- General,
1988
(2) ZLR 189.
Where
an urgent matter is allowed to wait, when it should not, it would be
within the applicant's right to suggest to the court not to bother
acting on his application when the harm which he seeks to prevent
would have occurred.
It
follows, from the foregoing paragraph that when a matter is filed
through the urgent chamber book and is placed before a judge for his
or her consideration, the judge should quickly assess the case of the
applicant as he or she reads through the same and formulate an
opinion on it. Where he remains of the view that the same does not
meet the requirements of urgency, he or she expresses his or her
opinion on the application and does nothing about it unless and until
the applicant persists that he or she be heard in which case the
judge will accord him or her the opportunity to do so.
An
application which, in the opinion of the judge, has some urgency
enjoins the judge to attend to it with the minimum of delay.
The
judge, therefore, allows the application to jump the queue of all
matters which are filed before it so that it is heard earlier than
them to avert the harm which the applicant perceives he or she would
suffer if his or her case is allowed to wait its turn in the normal
roll of the court.
Mangwana
filed this application through the urgent chamber book. He had a
certificate of urgency prepared and filed with it.
His
view is that his case which relates to Kasukuwere's nomination as a
Presidential candidate in the forthcoming election should be treated
with urgency. With urgency because processes which lead to
preparation of the ballot paper and other election-related procedures
are at hand. Kasukuwere's position should therefore be arrested
before it goes further than the permissible point, according to him.
His
narrative is that he treated his cause of complaint with the urgency
that the same deserved. He alleges that he approached the court
within three working days of the event which he is impugning. He
avers that he did not sit on his laurels but has been diligent in
pursuing this matter.
He
insists that a delay in deciding the case will render the whole
process what, in legal parlance, is referred to as a brutum fulmen.
This, according to him, occurs where the application is heard and
determined after the election has been completed.
He,
accordingly, moves me to grant him an urgent hearing.
Kasukuwere's
position is to the contrary.
He
argues that the application does not meet the requirements of
urgency. He insists that Mangwana was at liberty to activate the
necessary processes to have him struck off the roll (sic). He claims
that Mangwana knew from the beginning that he (Kasukuwere) was a
registered voter. He insists that Mangwana should have engaged the
processes in terms of the Act well in advance.
He
submits that the application is self-inflicted urgency because,
according to him, Mangwana had a long time to cause his removal from
the list of voters if such was the latter's intention. Mangwana, he
insists, has no interest on whether or not he is a registered voter.
All what Mangwana wants, he avers, is to scuttle his Presidential
race and curtail his right under section 67 of the Constitution.
Kasukuwere's
argument is, in my view, misplaced.
He
is not having me believe that Mangwana should have acted in a vacuum.
Mangwana, it stands to reason and logic, did not know which persons
would throw their hats into the ring to request the electorate to
vote for them into this or that office. He would therefore have
played the role of a person who concerned himself with nothing which
is of substance if he was to engage himself in having all the names
of all persons whom he suspected would want to enter into the
electoral race removed from the roll of voters as Kasukuwere is
suggesting.
Such
an exercise on Mangwana's part would have portrayed him as a person
who embarks on a fishing expedition with no end-in-sight and,
therefore, meaningless.
It
was only the acceptance of Kasukuwere's paper by the Commission
which placed Mangwana's mental state in focus. It is at that time
more than at any other that he made up his mind to complain to the
Commission.
The
need to act on the part of Mangwana did not arise prior to 21 June,
2023. It arose on the mentioned date. Mangwana's application is
not, therefore, self-created urgency. It, in the circumstances of the
same, meets all the requirements of urgency.
GENERAL
NOTICE 1128 OF 2023
Kasukuwere's
assertion on this aspect is that the current application has been
overtaken by events. He submits, in his Heads, that his name has
already been gazetted together with the names of others who have
entered into the race for the office of the President of Zimbabwe. He
insists that the court can neither ignore nor undo his name from the
gazette.
Mangwana
argues that the Government notice is not law. It is, according to
him, a notice which advises the electorate as well as all and sundry
that persons whose names appear in the notice filed nomination papers
with the Commission.
He
poses the question that, if the notice did, who made that law.
He
submits that the gazetting of Kasukuwere's name is not what creates
law. He argues that the Commission which accepted Kasukuwere's
paper does not create law. Gazetting, he insists, does not create a
legislative act or a judicial act.
The
Government Notice which the Chief Elections Officer published in
terms of section 106 of the Act is relevant. It reads:
“It
is hereby notified in terms of section 106 of the Electoral Act
(Chapter 2:13) that at the close of sitting of the Nomination Court
which sat on Wednesday, 21st
June 2023 the candidates listed in the Schedule were duly nominated
for election to the office of President.”
I
cannot agree more or less with the view which Mangwana holds of the
General Notice.
If
such was law, as Kasukuwere would have me believe, then one would be
left to wonder what law, properly defined, is.
Law,
as section 2 of the Interpretation Act [Chapter
1:01]
provides, emanates from any enactment and/or the common law of
Zimbabwe. Judicial decisions also create law.
Apart
from the mentioned sources of law which are regarded as given, all
law-making institutions follow a particularly defined procedure to
generate a law. No law comes into place without any process being
followed.
Gazetting
of persons names in some notice cannot be one of the ways through
which a law is made.
The
appearance of Kasukuwere's name in the gazetted Government Notice
cannot be construed to suggest that his name is, by law, sealed in
such a manner that it cannot be undone.
Nothing
binds me on this aspect of the case at all other than to inform me
and the people of Zimbabwe at large of the process which the
Commission conducted on 21 June 2023.
The
point which Kasukuwere raises on this aspect of the case is without
merit. It is dismissed.
DISPOSITION
On
the date that the application was heard, counsel for Mangwana moved
me to admit into the record the amended draft order which he attached
to the answering affidavit.
He
advised that the motion was with the consent of Kasukuwere's
counsel. The latter confirmed the same to have been the case.
The
amended draft order was, therefore, made part of the record and it
replaced Mangwana's original draft order.
I
heard and considered the case of both parties. I am satisfied that
the applicant proved his case on a preponderance of probabilities.
The
application is, accordingly, granted as prayed in the amended draft
order.
Nyahuma's
Law Golden Stairs Chambers,
applicant's legal practitioners
Mhishi
Nkomo Legal Practice,
first respondent's legal practitioners
Nyika
Kanengoni and Partners,
second respondent's legal practitioners
