PATEL
J: The
applicants in this matter are all duly elected Members of Parliament.
The 1st
respondent is the Clerk of Parliament, cited herein in his official
capacity.
The
2nd
respondent was elected to the position of Speaker of the House of
Assembly on the 25th
of August 2008.
The
applicants challenge the validity of the 2nd
respondent's election as Speaker on several grounds.
They
originally sought an order setting aside the 2nd
respondent's election and, consequentially, an order nullifying all
acts performed by him qua
Speaker. However, at the hearing of this case, counsel for the
applicants conceded the excessiveness and enormity of the
consequential relief sought and opted not to pursue that aspect.
Background
By
virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker
must be elected in accordance with the Standing Orders of the House
of Assembly.
On
the 25th
of August 2008, following the swearing-in of Members of Parliament
(Members), the 1st
respondent announced the procedure for the election of the Speaker.
As there was more than one person proposed as Speaker, the election
was to be conducted by secret ballot as enjoined by Order Nos. 4 and
6.
According
to the applicants, what ensued in Parliament thereafter was chaotic
and disorderly and quite contrary to the requirements of a secret
ballot.
The
1st
respondent concedes that there was an unprecedented number of Members
in the Chamber on that day but denies that the voting process was
disorderly or improper. The 2nd
respondent supports this position and also raises several preliminary
objections to the application, pertaining to locus
standi,
non-joinder and the exhaustion of domestic remedies.
The
Issues
In
his opposing papers, the 2nd
respondent questioned the jurisdiction of this Court and the nature
of the relief claimed by the applicants. In particular, it was
averred that the matter fell within the purview of Parliamentary
privilege and was therefore not justiciable and that the declaratory
relief sought by the applicants could not properly be granted in the
circumstances of this case. However, these objections were withdrawn
and not specifically pursued by counsel at the hearing of this
matter.
In
the event, the preliminary and substantive issues for determination
in this matter, as I perceive them, are as follows:
(i)
Whether the applicants have locus
standi
herein.
(ii)
Whether other Members and entities should have been cited as
respondents.
(iii)
Whether the applicants should have exhausted domestic remedies
available in Parliament before approaching this Court.
(iv)
Whether the 1st
respondent conducted the election of the Speaker properly and
procedurally and whether Members belonging to the MDC-T party
displayed their votes to their colleagues in Parliament.
(v)
Whether the requirements of a secret ballot as enjoined by Standing
Orders and the Constitution were violated.
(vi)
Whether the above irregularities, if any, justify setting aside the
election of the 2nd
respondent as Speaker.
Locus
Standi
of Applicants
The
2nd
respondent challenges the applicants' locus
standi
on the grounds that they do not allege any violation of their own
right to vote by secret ballot and that it is the losing candidate,
one Paul Themba Nyathi, who should have been the principal applicant
in this case.
The
latter point is untenable for the simple reason that Mr. Nyathi, who
was not an MP on the date of the election, has chosen, for reasons
known only to himself, not to attack the election process. As for the
applicants themselves, they were clearly entitled as Members to
participate in the election conducted by the 1st
respondent and they unquestionably had a real and substantial
interest in the outcome of that election. That being so, they are
also entitled to challenge the legitimacy of the election process to
ensure that it is conducted in accordance with the prescribed
procedures and that it yields a legitimate result.
In
the present context, section 3 of the Administrative Justice Act
[Chapter
10:28],
which codifies and restates the common law position, is directly
relevant.
Section
3(1)(a) requires every
administrative authority which has the responsibility or power to
take any administrative action which may affect the rights, interests
or legitimate expectations of any person to “act lawfully,
reasonably and in a fair manner”.
In
terms of section 4(1), “any person who is aggrieved by the failure
of an administrative authority to comply with section three
may apply to the High Court for relief”.
There
can be no doubt, in my view, that the conduct of the Speaker's
election affected the interests and legitimate expectations of the
applicants in the outcome of the election. If they claim to be
aggrieved by the 1st
respondent's alleged failure to act lawfully, reasonably and fairly
in the conduct of that election, they are eminently entitled to
approach this Court for appropriate relief.
I
am therefore satisfied that the applicants have the requisite locus
standi
in this matter and that the 1st
respondent's objection thereto cannot be sustained.
Non-joinder
of Other Respondents
The
2nd
respondent contends that, in addition to the respondents in
casu,
the applicants should have cited all other Members who participated
in the election as well as the MDC-T party itself. Because a
declaratur
is sought, so it is argued, the Court should proceed on the basis of
full information from all relevant parties.
I
must confess that I am unable to see any merit in this contention.
In
terms of Order No.6, the 1st
respondent is assigned the responsibility for conducting the election
of the Speaker. It is the 1st
respondent, whose conduct is impugned by the applicants, and the 2nd
respondent, who was declared the winner of the election, who are the
most apposite respondents in the present contestation. It is their
specific actions that are pointedly challenged and their interests
that are directly affected by the declaratory relief presently
sought.
Quite
apart from the practical and logistical implications of citing over
200 respondents, the other Members and the MDC-T party were not
responsible for administering the election process and are not being
called upon to rectify the conduct complained of.
If
the 2nd
respondent's argument were to be taken to its logical conclusion,
it would warrant the citation of every Zimbabwean as having some
legitimate interest in the election to the highest office of
Parliament.
Rule
87(1) of the Rules of this Court provides that “no
cause or matter shall be defeated by reason of the misjoinder or
nonjoinder of any party”.
Even
where any misjoinder or non-joinder does occur, the Court remains
with the discretion to “determine the issues or questions in
dispute so far as they affect the rights and interests of the persons
who are parties to the cause or matter”.
While
I accept that not all possibly relevant parties have been cited as
respondents herein, I do not think that their non-joinder is fatal to
these proceedings inasmuch as the determination of the issues in
dispute will not directly impact upon their rights and interests.
Exhaustion
of Domestic Remedies
The
2nd
respondent avers that the applicants did not lodge any formal
objection or complaint with the 1st
respondent before the election result was announced. It was incumbent
upon the applicants to have exhausted relevant Parliamentary
processes before approaching this Court. In this regard, Adv.
Chaskalson
relies upon the decision in Doctors
for Life International v Speaker of the National Assembly
2006 (6) SA 416 (CC) at 491-492 (para. 218).
He
submits, quite correctly, that the nature of the relief sought by the
applicants carries far-reaching implications for the separation of
powers doctrine because it asks the judiciary to interfere with the
internal proceedings of Parliament. Consequently, the Court should
not recognise the applicants' locus
standi
to claim such relief unless they have made proper and diligent
attempts in Parliament to redress the conduct complained of or
provide a satisfactory explanation for their failure to do so.
As
is clearly recognised in section 5 of the Privileges, Immunities and
Powers of Parliament Act [Chapter
2:08],
Members enjoy full freedom of speech and debate in Parliament and the
proceedings of Parliament are generally immune from being questioned
or impeached in any court of law. In other words, as a general rule,
Parliament is at large to regulate its own proceedings without
external interference. However, it is well-established that in a
constitutional democracy such as ours, this general immunity is
necessarily and invariably subject to the provisions of the
Constitution. This subordination to the primacy of the Constitution
is entrenched and clearly recognised in sections 3 and 49 of the
Constitution. See Smith
v Mutasa N.O. & Another
1989 (3) ZLR 183 (SC) at 190; Chairman,
Public Service Commission & Others v Zimbabwe Teachers
Association & Others
1996 (1) ZLR 637 (S) at 651 and 656.
The
election of the Speaker is a process that is not exclusive to
Parliamentary privileges and powers. It is explicitly regulated by
section 39 of the Constitution and there can be no doubt that it is a
matter that is justiciable by the courts to ensure due compliance
with the Constitution and the Standing Orders.
Nevertheless,
I fully endorse the approach enunciated by the Constitutional Court
of South Africa in the Doctors
for Life
case, supra,
and concur that this Court should be loath to interfere with the
internal proceedings of Parliament unless it is shown that the
applicants have attempted to exhaust relevant Parliamentary processes
in the first instance.
In
the instant case, it appears from the 1st
applicant's affidavit that several queries were raised by certain
Members during the election process but the 1st
respondent refused to take any questions throughout the election.
What is not clear from the papers is whether the queries that were
raised were by way of formal objection or mere interjection.
In
this respect, Ms.
Damiso
submits that the 1st
respondent was entitled to ignore informal protests or interjections
and that any MP wishing to be heard had to make a formal objection by
standing up and raising a “point of order” as envisaged in Order
Nos. 49 and 61.
As
against this, Mr.
Hussein
argues that, although the conduct of normal Parliamentary business
does admit the possibility of formal objections, there is no
equivalent procedure prescribed in the Constitution or in the
Standing Orders with respect to the election of the Speaker that
enables the Clerk of Parliament to deal with formal objections.
Having
regard to the Standing Orders taken as a whole, I am inclined to
agree with Mr.
Hussein.
Order Nos. 49 and 61 relating to formal speeches and objections are
contained in the section titled PUBLIC BUSINESS and, more
specifically, in the Sub-section titled Order
in House and Rules of Debate.
As
appears from Order Nos. 7 and 17, the Speaker holds the Chair for the
conduct of public business generally. In the absence of the Speaker,
the Deputy Speaker assumes the Chair and, in the absence of both, the
Chair is assigned to the Deputy Chairperson of Committees or a member
of the Chairperson's panel.
At
no stage does the Clerk of Parliament exercise the powers of the
Chair in the conduct of ordinary public business to which the
procedures outlined in Order Nos. 49 and 61 apply.
The
only occasion on which the Clerk holds the Chair is for the purpose
of conducting the election of the Speaker in terms of Order Nos. 3 to
7.
These
Standing Orders are contained in the section titled PROCEEDINGS ON
MEETING OF NEW PARLIAMENT.
As
I have already noted, Order Nos. 49 and 61 which provide for formal
objections are to be found in an entirely different section and,
therefore, they do not apply to Order Nos. 3 to 7 governing the
election of the Speaker.
Arguably,
the power of the Chair to take and deal with formal objections could
and should be implied, mutatis
mutandis,
in the latter context as well. However, a strict interpretation of
the Standing Orders precludes any such importation in the absence of
clear language to that effect.
It
follows from all of this that the Standing Orders do not prescribe
any procedure for the raising of formal objections during the
election of the Speaker and before the election result is announced.
It also follows that, in the absence of any such procedure, there was
no internal Parliamentary process that the applicants could be
required to exhaust before approaching this Court for the relief that
they seek. That being so, the 2nd
respondent's preliminary objection in this regard cannot succeed
and must be dismissed.
Conduct
of Election
At
the beginning of the election in
casu,
the 1st
respondent laid out in some detail the procedure to be followed.
However, during the election process, there were several deviations
from the procedure prescribed, as appears from the papers and
exhibits filed herein. In particular, some Members folded their
completed ballot papers outside the polling booth and several MDC-T
Members openly displayed their ballot papers to their colleagues.
Again, most of the Members did not leave the Chamber after casting
their votes.
All
in all, it would appear that the 1st
respondent did not stamp his authority on the conduct of the
proceedings and was unable to prevent or stop the above-mentioned
irregularities.
In
his opposing papers, the 1st
respondent explains that the membership of the House of Assembly had
increased from 150 to 210 Members, all of whom were now elected and
the majority of whom were opposition MDC Members. These factors
contributed to a more exuberant atmosphere in the House which
affected the dynamics of the election process. However, according to
the 1st respondent, the proceedings were not disorderly or chaotic
and all the Members in the House were able to vote freely and without
any impediment.
Violation
of Secret Ballot Requirements
Mr.
Hussein
submits that the displaying of votes by participants in any election,
as a matter of principle, violates the secrecy of the ballot because
the votes displayed become known and influence the voting behaviour
of the other participants.
In
the specific case of an election to the position of Speaker, there
are several compelling reasons for maintaining the secrecy of the
ballot. On the one hand, the person elected to that position should
remain unaware of how particular Members voted in order to retain his
or her impartiality in the proceedings of the House. On the other
hand, Members should be able to elect a Speaker endowed with the
requisite authority and independence without fear of sanction from
their political party or constituency. Moreover, according to the
Lectric
Law Library Lexicon
(at www.lectlaw.com), the term “secret ballot” is defined as:
“the
expression by ballot, voting machine or otherwise but in no event by
proxy, of a choice with respect to any election or vote taken upon
any matter, which is cast in such a manner that the person expressing
such choice cannot be identified with the choice expressed”.
As
against this, Ms
Damiso
contends that only 6 out of the total number of 208 Members were
specifically identified by the applicant as having displayed their
votes. Therefore, there was substantial compliance with the secret
ballot requirement. In any event, she submits that the definition
relied upon by the applicants is overly theoretical and technically
deficient. A more functional definition is provided in Webster's
New College Dictionary
with the following essential elements:-
the
provision of official ballot papers printed at public expense; on
which the names of the nominated candidates appear; which are
distributed only at the polling place; and which are marked in
secret.
Again,
in Steel
and Engineering Industries Federation & Others v National Union
of Metalworkers of South Africa (2)
1993 (4) SA 196 (TPD) at 200-201, the requirements for a secret
ballot were held to be as follows:-
only
those qualified must vote; the number of votes cast and the votes for
and against must be counted; each voter must be able to vote
privately and in secret; only the votes of eligible voters must be
counted.
In
essence, so long as voters are able to cast their votes in secret,
they are entitled to voluntarily display their votes to others, in
keeping with the freedom of expression guaranteed by section 20 of
the Constitution.
Adv.
Chaskalson
also relies on the Steel
case, supra,
for the proposition that the requirements of a secret ballot are
designed to protect voters from having to display their votes.
Therefore, a voter can waive the secrecy of his own vote by free
choice. This is a right vested in the voter himself.
In
the instant case, the crucial question is whether or not it was
reasonably possible for the Members in the House to cast their votes
in secret.
In
this regard, he submits that all the Members marked their ballots in
secrecy within the polling booths provided. None of the Members
complained of having been coerced or pressurised to expose their
votes. Moreover, the applicants' claim that the majority of the
MDC-T Members displayed their votes is not borne out by the evidence.
In any event, those Members who did display their votes did so purely
voluntarily without complaining that their voting rights had been
violated. In short, such voluntary disclosure did not violate the
secrecy of the election vote.
Whether
Setting Aside of Election Justified
As
regards the conduct of the election in
casu generally,
the papers before the Court evince several conflicts of fact as to
what transpired at the time. The applicants' assertions that the
proceedings were brazenly unruly are squarely rebutted by the
averments of the 1st
respondent. In this situation, the approach to be adopted was
explained by GUBBAY JA in Zimbabwe
Bonded Fibreglass (Pvt) Ltd v Peech
1987 (2) ZLR 338 (S) at 339, as follows:
“It
is, I think, well established that in motion proceedings a court
should endeavour to resolve the dispute raised in affidavits without
the hearing of evidence. It must take a robust and common sense
approach and not an over fastidious one; always provided that it is
convinced that there is no real possibility of any resolution doing
an injustice to the other party concerned. Consequently, there is a
heavy onus upon an applicant seeking relief in motion proceedings,
without the calling of evidence, where there is a bona
fide
and not merely an illusory dispute of fact.”
Having
regard to the overall scenario prevailing in the House on the day in
question, it seems reasonably clear that the election proceedings
under review were not conducted in an ideal manner. Nevertheless,
despite the imperfections alluded to above, it cannot be said that
the process was so disorderly as to be utterly chaotic.
On
the contrary, all the Members in the House were duly called upon to
vote and were able to cast their votes in the polling booths
provided. Taking into account the usual volatility associated with
the conduct of Parliamentary business generally, I am inclined to
take the robust view that the election proceedings as a whole were
sufficiently regulated to enable the election to take place to a
satisfactory conclusion.
Turning
to the open display of votes by at least 6 or possibly more of the
voting Members, I agree with Mr.
Hussein
that the provisions of section 39(2) of the Constitution as read with
Standing Order No. 6 are peremptory and must be strictly complied
with.
Thus,
if it is shown that the requirements of a secret ballot have been
violated in any election to the position of Speaker, the election
result should in principle be declared a nullity. This would be so
unless it is shown that nullification would lead to great injustice
or public inconvenience. See Pio
v Franklin N.O. & Another
1949 (3) SA 442 (CPD); Trans-Afrika
Credit and Savings Bank Ltd v Union Guarantee and Insurance Co. Ltd
1963 (2) SA 92 (CPD).
Having
regard to the dictionary definitions and the case authorities cited
by counsel, the gravamen of a secret ballot, in my view, is that each
voter is enabled to cast his vote privately and in secret, without
fear of having his voting choice identified or ascertained by others.
In this respect, it is incumbent upon the regulating authority to
provide the requisite wherewithal for that purpose. The courts should
not interfere unless it is shown that the objective conditions put in
place for the election precluded the possibility of a secret vote.
Beyond this, it is then a matter purely for the individual voter if
he chooses to divulge, whether publicly or in private, the specific
manner in which he has cast his vote. If he does so of his own
volition, without any external coercion or intimidation, and
howsoever his conduct might influence other voters, this cannot
detract from the secrecy of his vote or vitiate the secrecy of the
ballot as a whole.
On
the evidence before this Court, there is nothing to show that any of
the Members in the House did not cast their votes in secret or that
the Members who did display their votes did so under any threat or
duress.
It
is fairly clear that Hon. Biti took the lead in brandishing his vote
and that several of his colleagues were then emboldened into
emulating his possibly impolitic example. However, they did so of
their own free will and, more significantly, they did so after having
cast their votes in secret.
In
the present context, it is necessary to bear in mind that declaratory
relief of the nature sought in
casu
is always discretionary. This is clearly recognised in section 14 of
the High Court Act [Chapter
7:06].
In
principle, suitable circumstances must be shown to exist to justify
any exercise of the Court's declaratory discretion.
As
I have already stated earlier, Parliament is generally at large to
regulate its own proceedings without external interference. As a
rule, the courts should be loath to interfere with the internal
proceedings of Parliament unless there is a failure to comply with
constitutional strictures. In the instant case, I do not perceive any
such failure and am unable to find any other basis for setting aside
the election of the Speaker.
Disposition
It
follows from all of the foregoing that the applicants have failed to
establish any justification, either as regards the general conduct of
the impugned election or with respect to the secrecy of the votes
cast or otherwise, for setting aside or nullifying the election of
the 2nd
respondent as Speaker of the House of Assembly.
On
the other hand, I am unable to discern any valid ground for
penalising any one or all of the applicants with a punitive award of
costs as is claimed by the 2nd
respondent. I do not understand this application to be merely
frivolous or vexatious or to have been actuated by malice or other
ulterior motive.
In
the result, the application is dismissed with costs on the ordinary
scale.
Hussein
Ranchod & Co.,
applicants' legal practitioners
Atherstone
& Cook,
2nd
respondent's legal practitioners
