News / Local
ZEC opposes CCC court challenge
05 Jul 2023 at 07:14hrs | Views
THE Zimbabwe Electoral Commission (ZEC) filed opposing papers in the matter in which 10 disgruntled Citizens for Coalition Change (CCC) members are challenging the electoral body's decision to refuse them to file nomination papers for the candidature of Bulawayo Provincial Council.
The CCC members argue that they were unlawfully denied an opportunity to file nomination papers when the Nomination Court sat a few weeks ago despite submitting their papers after the 4pm deadline.
The Nomination Court sat on June 21 to accept candidates for Presidential, Parliamentary and Local Authority ahead of the harmonised elections scheduled for August 23.
ZEC has since published the final list of candidates participating in the polls.
The applicants Aquilina Kayidza Pamberi, Tinashe Kambarami, Memory Ndlovu, Promise Dalubuhle Mkhwananzi, Caroline Mapako, Garikayi Mugova, Kwanele Bango, Brian Gumbo, Gladys Mathe and Tawanda Ruzive, through their lawyers Ncube Attorneys, filed an urgent application at the Bulawayo High Court seeking a review of ZEC's decision not to accept their nomination papers.
In papers before the court, Bulawayo provincial elections officer Mr Innocent Ncube, ZEC, and Zanu- PF party candidates for the Bulawayo provincial/metropolitan council Manila Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo, were cited as respondents. The applicants argue that when the Nomination Court closed doors they were already there and ready to file their papers.
"The first respondent (Mr Innocent Ncube), therefore, violated the audi alteram partem rule by refusing to permit the applicants to present their nomination papers for consideration alongside those of Manila Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo," argued the CCC lawyers.
"Further, the refusal by the first respondent to allow the applicants to submit new nomination papers was grossly unreasonable and insupportable of the facts of this case."
The applicants are seeking a relief declaring that ZEC acted contrary to the provisions of section 46(7) of the Electoral Act when it refused them the opportunity to present their nomination papers for the Bulawayo Provincial Council.
"Consequently, the first respondent's decision to refuse applicants the opportunity to present nomination papers for the Bulawayo Provincial Council should be set aside," argued the applicants.
They also want the court to nullify the election of the seven Zanu-PF candidates for the Bulawayo Provincial Council.
The applicants want ZEC to be directed to receive and consider their nomination papers for the Bulawayo Provincial Council.
In its notice of opposition, ZEC through its lawyers, Nyika Kanengoni and Partners said there is no valid application before the court warranting the relief sought by the disgruntled CCC members.
Mr Ncube said the decision that he took in his capacity as the Bulawayo provincial elections officer during the sitting of the Nomination Court was made in terms of the Electoral Act.
"This applies even where the applicants allege that I acted contrary to the provisions of the Electoral Act.
Mr Ncube argued that the High Court lacks jurisdiction in the matter and it should therefore be struck off the roll.
"The right to appeal is afforded to the sponsoring political party and not to the listed candidates on the party-list. In this instance, the right reposed in the CCC party. If such right is not exercised with the four-day period prescribed, the right to appeal shall lapse and the decision of the nomination officer shall be final," he said.
"In the present matter, the applicants, following my decision not to accept their nomination papers, noted an appeal to the Electoral Court sitting in Bulawayo under case number EC02/2023. They did so in their individual capacities and not through their political party, thus making their appeal fatally defective."
Mr Ncube contended that his decision is final in terms of section 45 (14) (c) of the Electoral Act.
"My decision cannot be interfered with in any manner by any court lest that court goes against the clear provisions of a statute. Nominations for party –list candidates are not considered in terms of section 46 (7) of the Electoral Act. They are considered under section 45E of the same Act," he argued.
Mr Ncube said the sitting of the Nomination Court to receive and consider applicants' papers is not possible in terms of the law as it is only the President who proclaims.
"The issuing of the proclamation is a function given to the Executive by the Constitution. The court sitting as the general division of the High Court, has no legal basis to make an order that effectively makes a new proclamation or supplements the one already made by the President," he said.
Mr Ncube said in the course of his duties towards the close of the Nomination Court at around 3.55pm, he announced in court that they were about to close and invited all those who were present to submit their nomination papers.
"I further instructed the police officers manning the court to go outside and collect all nomination papers save for those already inside the court, and began to deal with the papers on my desk," he said.
"When I came to the party-lists for the CCC, the party had three party –list for Senatorial, National Assembly and Youth quota. They did not have one for provincial council. After checking the papers, I sent their representative back to make corrections on anomalies."
Mr Ncube said at around 8pm when CCC representatives returned with the corrected party-list nomination papers, he noted that they had now added the provincial council party-list, which was not part of the original submission.
"The factual narration given by the applicants is thus not correct. I did not lose their nomination papers as they allege. There is, thus, no basis for this application at all. I acted fully within the law," he said.
"The fatal defects in the application mitigate against this court granting any relief to the applicants,"
ZEC lawyers argued that in terms of Rule 12 of the electoral (applications, appeal and petitions) Rules S.I 74 of 1995, the applicants were afforded all the facilities and rights prescribed in terms of section 45E of the Electoral Act.
"They were not denied a right to file nomination papers in terms of the law. An attempt at late filing is not filing as contemplated in terms of the Electoral Act. The letter requesting corrective measures is dated 22 June 2023, a day after the sitting of the Nomination Court at which point the nomination officer was already functus officio (an officer or agency whose mandate has expired)," said the lawyers.
The lawyers said the application ought to be struck off the roll, arguing that it is fatally and incurably defective.
"If the court finds the appeal to be valid, it should be dismissed on the merits."
Bulawayo High Court judge Justice Bongani Ndlovu reserved judgment after hearing the matter on Monday.
The CCC members argue that they were unlawfully denied an opportunity to file nomination papers when the Nomination Court sat a few weeks ago despite submitting their papers after the 4pm deadline.
The Nomination Court sat on June 21 to accept candidates for Presidential, Parliamentary and Local Authority ahead of the harmonised elections scheduled for August 23.
ZEC has since published the final list of candidates participating in the polls.
The applicants Aquilina Kayidza Pamberi, Tinashe Kambarami, Memory Ndlovu, Promise Dalubuhle Mkhwananzi, Caroline Mapako, Garikayi Mugova, Kwanele Bango, Brian Gumbo, Gladys Mathe and Tawanda Ruzive, through their lawyers Ncube Attorneys, filed an urgent application at the Bulawayo High Court seeking a review of ZEC's decision not to accept their nomination papers.
In papers before the court, Bulawayo provincial elections officer Mr Innocent Ncube, ZEC, and Zanu- PF party candidates for the Bulawayo provincial/metropolitan council Manila Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo, were cited as respondents. The applicants argue that when the Nomination Court closed doors they were already there and ready to file their papers.
"The first respondent (Mr Innocent Ncube), therefore, violated the audi alteram partem rule by refusing to permit the applicants to present their nomination papers for consideration alongside those of Manila Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo," argued the CCC lawyers.
"Further, the refusal by the first respondent to allow the applicants to submit new nomination papers was grossly unreasonable and insupportable of the facts of this case."
The applicants are seeking a relief declaring that ZEC acted contrary to the provisions of section 46(7) of the Electoral Act when it refused them the opportunity to present their nomination papers for the Bulawayo Provincial Council.
"Consequently, the first respondent's decision to refuse applicants the opportunity to present nomination papers for the Bulawayo Provincial Council should be set aside," argued the applicants.
They also want the court to nullify the election of the seven Zanu-PF candidates for the Bulawayo Provincial Council.
The applicants want ZEC to be directed to receive and consider their nomination papers for the Bulawayo Provincial Council.
In its notice of opposition, ZEC through its lawyers, Nyika Kanengoni and Partners said there is no valid application before the court warranting the relief sought by the disgruntled CCC members.
Mr Ncube said the decision that he took in his capacity as the Bulawayo provincial elections officer during the sitting of the Nomination Court was made in terms of the Electoral Act.
"This applies even where the applicants allege that I acted contrary to the provisions of the Electoral Act.
Mr Ncube argued that the High Court lacks jurisdiction in the matter and it should therefore be struck off the roll.
"The right to appeal is afforded to the sponsoring political party and not to the listed candidates on the party-list. In this instance, the right reposed in the CCC party. If such right is not exercised with the four-day period prescribed, the right to appeal shall lapse and the decision of the nomination officer shall be final," he said.
"In the present matter, the applicants, following my decision not to accept their nomination papers, noted an appeal to the Electoral Court sitting in Bulawayo under case number EC02/2023. They did so in their individual capacities and not through their political party, thus making their appeal fatally defective."
Mr Ncube contended that his decision is final in terms of section 45 (14) (c) of the Electoral Act.
"My decision cannot be interfered with in any manner by any court lest that court goes against the clear provisions of a statute. Nominations for party –list candidates are not considered in terms of section 46 (7) of the Electoral Act. They are considered under section 45E of the same Act," he argued.
Mr Ncube said the sitting of the Nomination Court to receive and consider applicants' papers is not possible in terms of the law as it is only the President who proclaims.
"The issuing of the proclamation is a function given to the Executive by the Constitution. The court sitting as the general division of the High Court, has no legal basis to make an order that effectively makes a new proclamation or supplements the one already made by the President," he said.
Mr Ncube said in the course of his duties towards the close of the Nomination Court at around 3.55pm, he announced in court that they were about to close and invited all those who were present to submit their nomination papers.
"I further instructed the police officers manning the court to go outside and collect all nomination papers save for those already inside the court, and began to deal with the papers on my desk," he said.
"When I came to the party-lists for the CCC, the party had three party –list for Senatorial, National Assembly and Youth quota. They did not have one for provincial council. After checking the papers, I sent their representative back to make corrections on anomalies."
Mr Ncube said at around 8pm when CCC representatives returned with the corrected party-list nomination papers, he noted that they had now added the provincial council party-list, which was not part of the original submission.
"The factual narration given by the applicants is thus not correct. I did not lose their nomination papers as they allege. There is, thus, no basis for this application at all. I acted fully within the law," he said.
"The fatal defects in the application mitigate against this court granting any relief to the applicants,"
ZEC lawyers argued that in terms of Rule 12 of the electoral (applications, appeal and petitions) Rules S.I 74 of 1995, the applicants were afforded all the facilities and rights prescribed in terms of section 45E of the Electoral Act.
"They were not denied a right to file nomination papers in terms of the law. An attempt at late filing is not filing as contemplated in terms of the Electoral Act. The letter requesting corrective measures is dated 22 June 2023, a day after the sitting of the Nomination Court at which point the nomination officer was already functus officio (an officer or agency whose mandate has expired)," said the lawyers.
The lawyers said the application ought to be struck off the roll, arguing that it is fatally and incurably defective.
"If the court finds the appeal to be valid, it should be dismissed on the merits."
Bulawayo High Court judge Justice Bongani Ndlovu reserved judgment after hearing the matter on Monday.
Source - The Chronicle
