HIGH Court judge Justice Bongani Ndlovu will today make a ruling on the preliminary points raised during arguments in an application in which 12 registered voters in Bulawayo are challenging the Zimbabwe Electoral Commission (ZEC)’s decision to accept nomination papers of political parties’ members who filed their papers outside the timeframes.
The Nomination Court sat on June 21 to accept papers from aspiring candidates. ZEC sat the next day to accommodate some aspiring candidates who had failed to file their papers on time.
The candidates from various parties which include Citizens Coalition for Change (CCC), Zapu, Free Zim Congress and the Zimbabwe African National Congress (ZANC) submitted their papers after the 4pm deadline.
ZEC has since published the final list of candidates participating in the August 23 harmonised elections.
Twelve urgent chamber applications for declaratory order were recently filed at the Bulawayo High Court by registered voters in Bulawayo. Cheda and Cheda Associates is representing all the applicants.
They are challenging ZEC’s decision to accept the nomination papers from the opposition party candidates.
They are seeking the disqualification of the aspiring MPs for allegedly filing their nomination papers outside the timeframes.
One of the applicants, Ms Rachel Dube, a registered voter in Mpopoma/Mzilikazi constituency, filed the application at the Bulawayo High Court under case number HC 1362. In papers before the court she cited ZEC, its chairperson Justice Priscilla Chigumba, the Bulawayo provincial elections officer Mr Innocent Ncube, Desmond Makaza (CCC candidate), Zwikwete Innocent Mbano (ZANC) and Strike Mkandla (independent candidate).
In her founding affidavit, Ms Dube said ZEC’s decision to accept the nomination papers from the cited respondents was an illegality which should be declared null and void.
“Prospective election participants were all in all accorded ample time to put their paperwork and affairs in order ahead of the nomination day. Regrettably, for some of the political outfits, this turned out not to be the case.
“The third, fourth and fifth respondents were election candidates of CCC, ZANC and independent candidate respectively in the Bulawayo Metropolitan Province and for the Mpopoma/Mzilikazi constituency,” she said.
Ms Dube argued that despite the Nomination Court properly commencing at 10 AM on June 21, 2023, the nomination papers in relation to the third, fourth and fifth respondents were in disarray.
She argued that the steps taken by the provincial elections officer were solely aimed at accommodating Makaza, Mbano and Mkandla and their colleagues from the same political parties in other constituencies in Bulawayo.
Ms Dube said in terms of section 46(7) and (8) of the Electoral Act, the provincial elections officer erred by accepting the candidature of Makaza, Mbano and Mkandla.
She said there was no factual or legal basis for Makaza, Mbano and Mkandla being permitted to submit their nomination papers after 4pm when the cut-off time had undeniably lapsed.
“In conclusion I aver that this court application is urgent and pray that this Honourable Court intervenes in order to uphold the dictates of the law,” argued Ms Dube.
She want wants an order declaring the decision by the provincial elections officer to accept the three respondents’ nomination papers null and void and set aside.
The opposition parties’ candidates were represented by various lawyers from different law firms and these included Professor Welshman Ncube, Advocate Thabani Mpofu, Moses Mahlangu and Brian Robin.
ZEC, which was represented by Mr Tawanda Kanengoni, opposed the application, arguing that the general division of the High Court had no jurisdiction to hear the matter.
In his opposing affidavit, Mr Ncube said the matter falls under the jurisdiction of the Electoral Court.
“I am advised, and accept that advice that the Supreme Court whose decisions bind this honourable court, has found in various matters that the constitutional matrix by which the existence of specialised courts is founded, doesn’t allow the High Court, in the exercise of its inherent jurisdiction, to usurp the specialised jurisdiction of the Electoral Court,” he said.
“Accordingly, this court lacks jurisdiction in the first instance in these matters and ought to strike them off the roll,”
Advocate Mpofu concurred with ZEC, arguing that electoral disputes are a preserve of the Electoral Court, which is a specialised division of the High Court.
He further argued that there is a need for the court to establish what time CCC candidates, he is representing, got to the nomination court to file their nomination papers.
Prof Ncube also representing some CCC candidates urged that applicants relied on hearsay evidence, as they were not at the nomination court.
“The applicants were not present at the court, they witnessed nothing and they don’t even say they were told, but what they are doing is bringing and telling fairy tales,” he said.
Adv Thembinkosi Magwaliba who was instructed by the applicants’ lawyers, argued that the High Court had the jurisdiction to decide declaratory matters even with the existence of the Electoral Court.
‘It is clear that as a matter of law, the applicants are in the correct forum. The applicants are proper before this court,” he argued.
Justice Ndlovu will today make a ruling on preliminary arguments before the matter proceeds on the merits. In proceedings on the merits, the court will then deliver a final judgment of the case.