ELECTION COURT WATCH 2/2023
[4th August July 2023]
Nomination Challenges : Two Cases on Failure to Pay
When nomination courts sat last month to receive nomination papers from candidates in the forthcoming general election, several aspirant candidates had difficulty paying their nomination fees of US$20 000 in the case of presidential candidates and US$1 000 in the case of parliamentary candidates. In some cases the difficulty arose because of delays in the electronic payment system, so the Zimbabwe Electoral Commission (ZEC) published a notice extending the deadline for nominations; it read as follows:
“The Zimbabwe Electoral Commission has noted with concern reports to the effect that prospective candidates were disqualified from lodging their nomination papers on account of difficulties experienced in effecting payment of nomination fees largely due to the current challenges within the banking system.
In view of this, the Commission is calling upon all candidates and parties whose nomination papers had been submitted but had challenges with the Commission’s point of sale machines and those who had submitted proof of payments but funds not reflecting in ZEC’s account to approach the respective nominations courts wherein their papers were lodged and make the necessary payments or get confirmation of said payment no later than 1700hrs on 22 June 2023.”
Note: Unfortunately this was picked up by some news outlets as the nomination court being extended for another day. This was not the case but may have misled some candidates.
Despite the extension some candidates still had their nomination papers rejected for failing to pay their nomination fees in time. Two presidential candidates whose papers were rejected appealed to the Electoral Court Division of the High Court [which for brevity we shall call the Electoral Court], and last week the court delivered apparently contradictory judgments in their appeals:
In Elisabeth Valerio v Presiding Officer, Nomination Court & Others [link], the court set aside the rejection and declared Ms Valerio to have been properly nominated as a presidential candidate.
In Linda Masarira v Presiding Officer, Nomination Court & Others [link], the court upheld the rejection of Ms Masarira’s nomination papers.
Before analysing the two judgments we should set out the legal background.
The Legal Background
In his proclamation calling the election, the President fixed the 21st June as nomination day, and on that day nomination courts were held at various centres throughout the country to receive candidates’ nomination papers and nomination fees. The nomination court for the presidential election was held at Harare. In terms of section 46(5) of the Electoral Act [link], the court opened at 10 a.m. and closed at 4 p.m. According to section 46(7):
“No nomination paper shall be received by the nomination officer … after four o’clock in the afternoon of nomination day …:
Provided that, if at that time a candidate or his or her chief election agent is present in the court and ready to submit a nomination paper in respect of the candidate, the nomination officer shall give him or her an opportunity to do so.”
The nomination officer was then supposed to announce the names of all candidates who were duly nominated [section 46(12) of the Act] whereupon, in terms of section 46(13):
“The sitting of the nomination court … shall end immediately after the announcement … and after the close of the sitting no candidate shall be entitled or permitted to lodge a nomination paper.”
Candidates had to deposit nomination fees when they submitted their nomination papers in terms of section 105 of the Act, which reads:
“At the same time as the nomination paper is lodged by or on behalf of a candidate for election as President, there shall be deposited with the Chief Elections Officer, by or on behalf of the person nominated, such nomination fee as may be prescribed …”
According to section 3(1)(a) of the Electoral (Nomination of Candidates) Regulations, 2014 [link], nomination fees are:
“payable in cash or payable in Zimbabwean local currency at the official market rate”.
That is the legal background. We now turn to the cases themselves.
Valerio v Presiding Officer & Others
On nomination day Ms Valerio presented her nomination papers as a presidential candidate, together with a form from her bank showing that she had instructed the bank to transfer the Zimbabwe dollar (RTGS) equivalent of US$20 000 to ZEC. The form was signed and stamped by the bank and contained a statement that the transfer instruction was irreversible. The money had not however been transferred into ZEC’s bank account by 4 p.m. on nomination day, and on that ground her nomination was rejected. She returned to the nomination court the next day, after her money had been transferred, but her nomination was again rejected, this time on the ground that she did not fall within the class of candidates whom ZEC in its notice had invited to resubmit their nominations. She appealed against the rejection to the Electoral Court.
The Electoral Court held that the bank form constituted valid proof of payment even though the funds had not yet been reflected in ZEC’s account, so she was covered by ZEC’s notice: she had indeed presented proof of payment on nomination day. Furthermore, her bank’s failure to transfer the funds on nomination day could be construed as a “challenge within the banking system” referred to in ZEC’s notice. Hence the words of the notice, construed in their ordinary sense, clearly covered Ms Valerio. Her nomination should have been accepted.
The appeal was accordingly allowed and Ms Valerio was declared to have been validly nominated as a presidential candidate.
Masarira v Presiding Officer & Others
When Ms Masarira submitted her nomination papers to the nomination court she brought transfer forms authorising her bank to transfer the nomination fee, in RTGS dollars, into ZEC’s bank account. She had filled in the forms but had not submitted them to her bank, however, so the presiding officer of the court rejected the forms as proof of payment and advised her to use an alternative transfer system. This alternative system did not allow large sums of money to be transferred so she was unable to deposit the nomination fee by the time the court closed. The next day, in response to ZEC’s notice, she returned to the court but the presiding officer again refused to accept her papers. Like Ms Valerio, she appealed to the Electoral Court, arguing that she had been the victim of challenges within the banking system and so covered by ZEC’s notice.
The court dismissed her appeal on the ground that she did not fall into any of the classes of candidates covered by ZEC’s notice:
- She had not presented the transfer forms to her bank so she had not applied to make the transfer. Hence on nomination day she did not present the court with proof of payment of the nomination fee.
- She knew well before nomination day that large sums of money could not be paid through the alternative transfer system suggested by the presiding officer, so she could not be said to have encountered a banking challenge which happened on nomination day.
- She did not say she had tried to use ZEC’s point of sale machines, which would have brought her within one of the classes specified in the notice, nor did she say she had tried and failed to pay in US dollars.
The court also held that she could not take advantage of section 46(11)(b) of the Electoral Act, which prohibits the rejection of nomination papers:
“on account of any … imperfection in the nomination paper if the nomination officer is satisfied that there has been substantial compliance with this section [i.e. section 46]”.
The provision applied only to defects in nomination papers, which was not the case here. In any event, there had been no substantial compliance with the requirement to pay the nomination fee, since she had not submitted the bank transfer forms to her bank.
The court also noted section 46(15)(c), which says:
“A candidate shall not be regarded as duly nominated for election … if—
(c) the [nomination fee] was not lodged with his or her nomination paper.”
That provision, the court said, is peremptory and requires full, not substantial, compliance.
For these reasons the court dismissed Ms Masarira’s appeal.
Though the two cases had different results, they are not contradictory. Ms Valerio did all she could to pay the nomination fee on the 21st June, so her appeal succeeded; Ms Masarira did not, so her appeal failed.
There are however a few additional comments we should make:
- First, the problems over nomination fees would probably not have arisen if ZEC had not raised the fees so outrageously in August last year (from US$1 000 to US$20 000 in the case of presidential elections, and from US$100 to US$200 in the case of parliamentary elections).
- Nor would the problems have arisen if ZEC had anticipated what should have been obvious: that candidates would find it difficult to pay the new nomination fees, even if they had the money, in view of the perennial shortage of foreign currency and the almost valueless Zimbabwe dollar. ZEC could and should have made arrangements well in advance of the election for alternative methods of payment.
Finally, it is doubtful if ZEC could validly extend the time within which candidates could present their nomination papers and pay their fees, in view of the clear statements in sections 46(7), (13) and (15)(c) that no nominations may be accepted after nomination courts have closed at 4 p.m. on nomination day. On the other hand, ZEC caused the problems so ZEC had to overcome them, and extending the time for nomination was probably the fairest way to do it. It also gave effect to section 67(3)(b) of the Constitution, which confers on all adult citizens the right to stand for election for public office.