Court dismisses CCC's appeal on Bulawayo Provincial Council matter

The Supreme Court has dismissed an appeal made by the Citizens Coalition for Change (CCC) challenging a previous judgement of the Electoral Court that declared the opposition party had failed to file their candidates names for Bulawayo's Provincial Council.

This means CCC will have no nominated members in Bulawayo's Provincial or Metropolitan Council while Zanu-PF provincial council candidates who stood unopposed and were elected will remain in those positions.

Last year the Electoral Court ruled that CCC's appeal asking the court to order the Zimbabwe Electoral Commission (ZEC) to allow  them to submit candidate names and reverse the subsequent election of Zanu-PF candidates had no merits

This was after CCC had filed an urgent court application accusing ZEC of depriving them of the opportunity to submit their party list nomination papers during the Nomination Court held on June 21, 2023.

After losing that case, the opposition party appealed the ruling at the Supreme Court, with CCC as  the first appellant while members: Kwanele Bango, Aquilina Kavidza Pamberi, Tinashe Kambarami,  Memory Ndlovu, Promise Dalubuhle Mkwananzi, Caroline Mapako, Garikayi Mugova, Brian Gumbo, Gladys Mathe and Tawanda Ruzive were the second to 11th appellants respectively.

In its appeal, CCC cited then 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 cited respondents cited are duly elected Zanu-PF candidates: Manala Motsi, Eddie Dube, Kundai Nyika, Golden Ndlovu, Mnothisi Nsingo, Moleen Dube and Mlungisi Moyo, Mabutho Moyo, Thabo Thwala and Thenjiwe Nleya -the third to 12th respondents respectively.

A panel of three Supreme Court Judges sitting at the Supreme Court in Bulawayo upheld the previous Electoral Court ruling and dismissed CCC's appeal ex tempore.

This means the three judges delivered the judgement immediately after hearing the case and there will be no written judgement.

In their heads of arguments, the CCC has argued the Electoral Court failed to appreciate the failure of the Nomination Court to keep a proper record of its proceedings, saying that amounted to "gross irregularity organisable under the court's powers of review."

CCC claimed the Electoral Court erred in failing to appreciate that in the absence of a record of proceedings which established that its candidates papers were not part of those originally submitted, the court had no basis in rejecting  its case.

CCC sought to have ZEC nomination officer's decision to reject its candidate party list for the Bulawayo provincial Council be reviewed and set aside

The opposition party also wanted a declaration by the ZEC nomination officer that the Zanu-PF candidates who became duly elected members of the Bulawayo Provincial council be reviewed and set aside.

In his judgement last year, the Electoral Court Judge, Justice Christopher Dube-Banda, presiding in Bulawayo said CCC had presented conflicting versions of the same event.

Dube-Banda said in one version, CCC had said the nomination papers were submitted and received by the nomination court before the cut off time.

"The papers were examined and found to be defective and the nomination officer gave the CCC an opportunity to rectify the defects to all the PR party lists including the Bulawayo Provincial Council party list. On resubmission the nomination officer rejected the list alleging it was not part of the nomination papers initially submitted and received," said the judge.

The other version according to Dube-Banda was CCC further claimed ZEC's nomination officer due to his delegation of his duties to a police officer may have lost the party list.

The judge said these "two versions are irreconcilable as a party bearing the burden of proof cannot afford to present two different and conflicting versions before the court in two different matters."

Dube-Banda said the version of the nomination officer and ZEC was that the CCC only presented party lists for Senatorial, National Assembly, Youth quota.

"On  resubmission (after corrections) the CCC included the Bulawayo Provincial Council party list which was not part of the original papers submitted  before the cut of time. The list was then rejected. The attempt to file the Bulawayo Provincial Council party list  at 8pm on 21 June 2023 was in clear contravention of Section 45 E(3) of the Electoral Act," ruled the judge,  

The judge said he could not say that ZEC and the nomination officer acted outside the law by favouring Zanu-PF to the prejudice of the CCC.

"As to why the CCC would draw up lists in all provinces and forget Bulawayo province is not for the court to answer but for theCC itself to answer. CC has failed to prove its case on a balance of probabilities  CCC has no case on the merits. It is for those reasons that this application must fail," Dube-Banda said.