COURT WATCH 7/2014
[28th April 2014]
Election Petitions Challenging 2013 Election Results in the Electoral Court
Part II: Petitions Dismissed by Electoral Court
Part I – Court Watch 6/2014 of 24th April – discussed election petitions challenging the 2013 election results that were withdrawn by the petitioners before going to trial. In this bulletin, we move on to procedural issues decided by the Electoral Court and to the many petitions that were dismissed by the court in November last year.
Improper to cite ZEC Chairperson in Election Petitions
Some of the petitions by MDC-T candidates cited ZEC Chairperson Justice Rita Makarau as a respondent in their election petitions. ZEC’s lawyers objected to this practice, arguing that citing the chairperson was in contravention of the Electoral Act because the chairperson’s responsibilities are limited to conducting elections freely and fairly and do not extend to refereeing legal disputes. On 20th November, in a decision dealing with preliminary points common to the petition of Silas Gweshe v Biggie Matiza and four other petitions, Justice Bhunu ruled that citing the ZEC chairperson as respondent to an election petition was unlawful and therefore not permissible [soft copy of judgment available from the addresses at the end of this bulletin].
Which Rules of Court Apply to Election Petitions?
One of the problems faced by petitioners and legal advisers was a difference of opinion as to which rules of court were applicable to the petitions. Confusingly, the Electoral Act pointed to two different sets of rules: section 193 appeared to require compliance with the Electoral (Applications, Appeals and Petitions) Rules [SI 74A/1995 made under the former Electoral Act], while section 165 seemed to lay down that until new rules of court were made under the current Electoral Act, the rules to be followed would be the High Court Rules, subject to changes deemed necessary by the Electoral Court.
The point was dealt with by Justice Bhunu in his judgment dismissing the petitions in the cases of petitioners Tracy Mutinhiri and Wilson Makanyaire. He decided that the rules in SI 74A/1995 were applicable. [Soft copy of judgment available from addresses at the end of this bulletin.]
Important Procedural Points
Contents of a petition
- Each petition had to be signed by the petitioner himself or herself [Electoral Act, section 168(1)(b)].
- Where the petitioner relied on a corrupt or illegal practice, the petition had to state the full name and address, if known, of every person alleged to have been guilty of such a practice [rule 21(f) of the rules of court].
After lodging a petition
Having lodged his or her petition, each petitioner was obliged, by the Electoral Act, to take further procedural steps, as follows:
- not later than 7 days after lodging the petition, pay $10 000 cash to the Registrar of the Electoral Court as security for costs and expenses that the court might order the petitioner to pay. The MDC-T paid the required cash security deposit for 39 of its candidates’ 95 petitions, thereby enabling those petitioners to clear this particular hurdle.
- not later than 10 days after lodging the petition, have a copy of the petition and notice of its lodging served on the successful candidate whose election was being challenged by the petition [“the respondent”] either personally or by leaving the documents at his or her usual or last-known dwelling or place of business]
Compliance with Procedural Requirements Essential
An important aspect of the law on election petitions is that failure to comply with the rules of procedure, as laid down in the Electoral Act and the rules of court, is almost invariably fatal. There is no room for flexible interpretation or for condonation of such failures by the Electoral Court. This point was stressed by Justice Bhunu in his judgment dismissing the petitions of Tracy Mutinhiri and Wilson Makanyaire on 25th November:
“A petitioner is obliged to render strict compliance with the Rules, failure of which the Court has no option but to invalidate the petition. The Electoral Court, being a creature of statute, is strictly bound by the four corners of the enabling Act.”
Election Petitions Dismissed for Procedural Errors
Procedural errors of various sorts led to the Electoral Court’s dismissal of the following petitions:
Petitioner’s failure to sign the petition personally
Ian Makone v Biata Nyamupinga [Goromonzi North]
On 20th November Justice Bhunu dismissed Mr Makone’s petition because he did not sign the petition himself, as required by section 168(1)(b) of the Electoral Act. Instead, it had been signed by Mr Makone’s legal practitioner. Justice Bhunu held that this rendered the petition fatally defective. He said that it is vital for the petitioner to sign the petition to ensure that the views expressed in the petition are those of the petitioner and have not been misrepresented by the petitioner’s lawyer. [Soft copy of judgment available from addresses at the end of this bulletin]
Not providing contact details of persons accused of electoral malpractices
Wilson Makanyaire v Temba Mliswa [Hurungwe West]
Tracy Mutinhiri v Jeremiah Chiwetu [Marondera East]
Bednock Nyaude v Toendepi Matangira [Bindura South]
The petitioners in these cases alleged that chiefs, headmen and traditional leaders in their constituencies had engaged in corrupt or illegal practices. Although some of the alleged wrongdoers were named in Mr Makanyaire’s petition, the names were not given in full and no addresses were provided. The other petitions suffered from similar defects. None of the petitioners claimed that the alleged perpetrators’ names and/or addresses were unknown to them. This failure to comply with the rules resulted in the petitions being dismissed by Justice Bhunu on 25th November for failure to comply with rule 21(f).
Wilbert Chimbetete v Supa Mandiwanzira [Nyanga South]
On 26th November Justice Bhunu dismissed this petition on the ground that the petition did not comply with rule 21(f) of the Rules. The petitioner had alleged that certain people had engaged in corrupt or illegal activities during the election period but had not provided their names and addresses.
Ushe Menard Paradzayi v Aquillina Katsande [Mudzi West]
Preliminary issues having been dealt with by the court on 18th November, the petition was set down for trial on 21st November before Justice Uchena. But on that day Justice Uchena raised the rule 21(f) issue and referred the matter to Justice Bhunu for determination. Justice Bhunu dismissed the matter on 26th November because of this non-compliance with the rule.
Silas Gweshe v Biggie J Mutiza [Murewa South]
This petition was dismissed by Justice Bhunu on 2nd December, also for non-compliance with Rule 21(f).
Jonathan Moyo v Roseline Sipepa Nkomo [Tsholotsho North]
Professor Moyo unsuccessfully contested the Tsholotsho North seat as a ZANU- PF candidate. After his defeat he lodged an election petition citing not only Roseline Sipepe Nkomo, the successful MDC-T candidate, but also ZEC Chairperson Justice Rita Makarau and several ZEC officials. In December 2013 Professor Moyo withdrew his case against all other parties cited, but continued proceedings against the successful candidate. Preliminary issues were argued on 14th January 2014 before Justice Makonese in Bulawayo. After hearing arguments Justice Makonese reserved judgment. Roseline Nkomo’s lawyer argued that the petition was fatally defective because it did not specify the grounds upon which it was based [as required by rule 21(e)] or the exact relief sought [in terms of rule 21(g)]. He also took the Rule 21(f) point that the full names and addresses of persons the petitioner accused of electoral malpractices or illegalities had not been provided.
On 30th January Justice Makonese dismissed the petition for failure to state with reasonable clarity the grounds upon which the election challenge was made. The petition was therefore fatally defective and was dismissed with costs.
Note: Although Professor Moyo is not a member of Parliament, his appointment as Minister of Media, Information and Broadcasting Services, is permissible in terms of section 104(3) of the Constitution, which permits the President to appoint up to five Ministers who are not MPs, for “their professional skills and competence”.
Electoral Court judgments available from Veritas
Silas Gweshe v Biggie J. Matiza
Ian M.Makone v Beata Nyamupinga
Tracy Mutinhiri v Jeremiah Chiwetu
Coming in Part III: Two cases still awaiting decision:
Jameson Timba v Jaison Passade [Mount Pleasant]
Blessing Chebundo v Masangano Matambanadzo [Kwekwe Central]
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