BULAWAYO HIGH Court judge Justice Bongani Ndlovu yesterday reserved judgment in the matter in which 12 registered voters in Bulawayo are challenging the Zimbabwe Electoral Commission (ZEC)’s decision to accept nomination papers of members of various political parties who filed their papers outside the timeframes.
Justice Ndlovu did not make a ruling on preliminary arguments and the matter proceeded on the merits. He will then deliver a final judgment of the case.
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 consolidated 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 1362/23.
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 Robi while ZEC was represented by Mr Tawanda Kanengoni.
Adv Thembinkosi Magwaliba who was instructed by the applicants’ lawyers, argued that his clients have established a case against the respondents.
He said the fact that the respondents were not at the courtroom of the Nomination Court after 4pm, is an illegality, hence their nomination as candidates in the harmonised elections ought to be nullified.
“The papers for the respondents were accepted outside the courtroom well after 4pm deadline, which is an illegality and a violation of section 46 of the Electoral Act. From the evidence of the respondents, the affected candidates were not in the courtroom,” said Adv Magwaliba.
“ZEC committed acts which are grossly flawed and not provided for in the law by directing a police officer to collect nomination papers of respondents who were outside the courtroom.”
Adv Magwaliba said the Nomination Court sat deep into the night to accept the papers of the respondents despite having announced that it would accept nomination paper after 4pm.
“The candidates who were unlawfully listed by ZEC must not contest in the elections and the court must declare it a nullity,” he argued.
Mr Kanengoni said no nomination papers were submitted after 4pm and challenged applicants to support their assertion.
“The facts stated by applicants are only known by those who were in the court of which they (applicants) were not there. No nomination papers were submitted after the cut-off time, and the crux of the matter by applicants to allege that ZEC officials accepted papers after 4pm is not true,” he said.
“In fact, the applicants relied on third parties on what transpired at the Nomination Court since they were not there. ZEC officials have experience are they are trained to conduct electoral processes.”
Mr Kanengoni said since the applicants are saying the entire process was flawed and chaotic, the declaratory order to nullify the nomination of respondents should also be extended to other candidates whose nomination is not being challenged.
Prof Ncube who is representing some of the seven CCC candidates, argued that the assertion by applicants that the nomination papers were collected from respondents unlawfully is baseless.
“There must be evidence that respondents’ papers were among the 40 papers collected from outside the court. Contrary to the applicant’s submissions, the respondents didn’t submit their papers after 4pm,” he said.
Prof Ncube said the applicants relied on speculative evidence as they were nowhere near the court.
“The law is very clear that no papers can be lodged after 4pm. However, if there is a query, the papers can be submitted after the cut-off time, and there is nothing to suggest that respondents violated the provisions of the Electoral Act,” he said.
“This is just a fishing expedition by applicants which the court should dismiss with costs on a higher scale.” – The Chronicle
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