News / National
High Court reserves judgement in CCC provincial council list case
05 Jul 2023 at 17:31hrs | Views
The Bulawayo High Court has reserved judgment in the matter in which members of the Citizens Coalition for Change (CCC) are challenging their omission from the provincial council list.
The 10 CCC members led by Aquilina Kavidza Pamberi as the first applicant with nine others Tinashe Kambarami, Memory Ndlovu, Promise Dalubuhle Mkwananzi, Caroline Mapako, Garikayi Mugova, Kwanele Bango, Brian Gumbo, Gladys Mathe and Tawanda Ruzive respectively, filed an urgent court application accusing the Zimbabwe Electoral Commission (ZEC) of depriving them the opportunity to submit their party list nomination papers.
The ten CCC members asked the Bulawayo High Court to order ZEC to enable them to submit their candidate names and reverse the subsequent election of the Zanu-PF provincial council candidates who stood unopposed.
They cited ZEC Bulawayo Provincial Elections Officer (PEO), Innocent Ncube as the first respondent, as he was the presiding officer of the Nomination Court, while ZEC is the second respondent.
The other respondents cited are the Zanu-PF candidates who were duly elected: Manala Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo, who are third to tenth respondents respectively.
ZEC refuted CCC's allegations with the PEO claiming the opposition party had three party lists for Senatorial, National Assembly, and Youth quotas but none for Provincial Council.
According to the PEO, CCC attempted to submit its provincial council party list while submitting amendments to its initial nomination papers, which was prohibited.
Nqobizitha Ndlovu of Cheda and Cheda Associates told CITE that lawyers argued the matter on July 3 before Justice Bongani Ndlovu who reserved judgment.
"It means judgement will be delivered in due course. We argued the matter but the judge didn't deliver judgment there and then. The judge needs time to go over the arguments and write it. When judgment is ready he will tell us and deliver it," he said.
Ndlovu said as things stand now, CCC still has no nominated members in Bulawayo's Provincial or Metropolitan Council, adding that the judgment will definitely come as a matter of urgency.
"It's a matter of urgency because of the election. The judgement has to come way before the elections. We are looking at it coming in the coming week, so most probably it will be out," said the lawyer.
In their application, the CCC members claimed before the PEO could make a decision on the nomination papers submitted from them, "there was sudden pandemonium inside the nomination court" and by the time order was restored, the "PEO had apparently lost" their forms.
However, in its notice of opposition, through its lawyers, Nyika Kanengoni and Partners, ZEC said there is no valid application before the court warranting the relief sought by the disgruntled CCC members.
The PEO said the decisions he took during the sitting of the Nomination Court was made in terms of the Electoral Act, even where CCC alleges that he acted contrary.
Ncube said, "When I came to the party lists for the CCC, the party had three party lists for Senatorial, National Assembly and Youth quota. They did not have one for the provincial council. After checking the papers, I sent their representative back to make corrections on anomalies."
He added that at around 8 pm 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," Ncube said.
Ncube argued the High Court lacks jurisdiction in the matter so the matter should be struck off the roll, because it lacks a legal basis to issue an order that effectively makes a new proclamation or supplements the one already made by the President, who is the only one with the authority to proclaim when Nomination Court meets.
The PEO also contended his 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.
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 10 CCC members led by Aquilina Kavidza Pamberi as the first applicant with nine others Tinashe Kambarami, Memory Ndlovu, Promise Dalubuhle Mkwananzi, Caroline Mapako, Garikayi Mugova, Kwanele Bango, Brian Gumbo, Gladys Mathe and Tawanda Ruzive respectively, filed an urgent court application accusing the Zimbabwe Electoral Commission (ZEC) of depriving them the opportunity to submit their party list nomination papers.
The ten CCC members asked the Bulawayo High Court to order ZEC to enable them to submit their candidate names and reverse the subsequent election of the Zanu-PF provincial council candidates who stood unopposed.
They cited ZEC Bulawayo Provincial Elections Officer (PEO), Innocent Ncube as the first respondent, as he was the presiding officer of the Nomination Court, while ZEC is the second respondent.
The other respondents cited are the Zanu-PF candidates who were duly elected: Manala Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo, who are third to tenth respondents respectively.
ZEC refuted CCC's allegations with the PEO claiming the opposition party had three party lists for Senatorial, National Assembly, and Youth quotas but none for Provincial Council.
According to the PEO, CCC attempted to submit its provincial council party list while submitting amendments to its initial nomination papers, which was prohibited.
Nqobizitha Ndlovu of Cheda and Cheda Associates told CITE that lawyers argued the matter on July 3 before Justice Bongani Ndlovu who reserved judgment.
"It means judgement will be delivered in due course. We argued the matter but the judge didn't deliver judgment there and then. The judge needs time to go over the arguments and write it. When judgment is ready he will tell us and deliver it," he said.
Ndlovu said as things stand now, CCC still has no nominated members in Bulawayo's Provincial or Metropolitan Council, adding that the judgment will definitely come as a matter of urgency.
"It's a matter of urgency because of the election. The judgement has to come way before the elections. We are looking at it coming in the coming week, so most probably it will be out," said the lawyer.
In their application, the CCC members claimed before the PEO could make a decision on the nomination papers submitted from them, "there was sudden pandemonium inside the nomination court" and by the time order was restored, the "PEO had apparently lost" their forms.
However, in its notice of opposition, through its lawyers, Nyika Kanengoni and Partners, ZEC said there is no valid application before the court warranting the relief sought by the disgruntled CCC members.
The PEO said the decisions he took during the sitting of the Nomination Court was made in terms of the Electoral Act, even where CCC alleges that he acted contrary.
Ncube said, "When I came to the party lists for the CCC, the party had three party lists for Senatorial, National Assembly and Youth quota. They did not have one for the provincial council. After checking the papers, I sent their representative back to make corrections on anomalies."
He added that at around 8 pm 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," Ncube said.
Ncube argued the High Court lacks jurisdiction in the matter so the matter should be struck off the roll, because it lacks a legal basis to issue an order that effectively makes a new proclamation or supplements the one already made by the President, who is the only one with the authority to proclaim when Nomination Court meets.
The PEO also contended his 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.
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.
Source - cite.org.zw
