Published by the government of Zimbabwe
21 September 2007
Harare — The Supreme Court yesterday dismissed with costs an MDC application challenging the constitutionality of sections of the Act establishing the Zimbabwe Electoral Commission, without hearing arguments on the merits of the case.
Chief Justice Godfrey Chidyausiku made the ruling after lawyers for Justice, Legal and Parliamentary Affairs Minister Cde Patrick Chinamasa and ZEC chairperson Justice George Chiweshe raised preliminary points to block the hearing of the matter. Mr Nelson Mutsonziwa of the Civil Division in the Attorney-General's Office and Mr George Chikumbirike of Chikumbirike and Associates appeared for the minister and ZEC.
Preliminary points are raised at the outset of the proceedings and if the court sustains them, it will avert the need to delve into the merits of the case. "The application in this case is dismissed with costs and details of the judgment would follow," said Justice Chidyausiku. The Chief Justice heard the case with Justices Misheck Cheda, Luke Malaba, Elizabeth Gwaunza and Paddington Garwe, who all concurred with his ruling. The MDC application was predicated on the provisions of section 24 (1) of the Constitution of Zimbabwe, which gives a litigant a right to bring such an application if he or she feels that the declaration of rights has been, is being or is likely to be contravened in relation to him or her.
The interpretation that had been given to that section by the Supreme Court is that for an applicant to show that he or she is entitled to bring such an application (locus standi in judicio), he or she must show that there is a contravention of the declaration of rights in respect of him or her. The applicant must show likelihood that the law impugned would affect him or her. A litigant has no right to seek redress either on behalf of the general public or anyone else. As stated in the Supreme Court case, the applicant is not entitled to carry a torch for clemency on voters generally. In regard to the MDC application as reflected in the founding affidavit of Mr Morgan Tsvangirai, leader of one of the party's two factions, he sought to have various sections of the Zimbabwe Electoral Commission Act to be declared inconsistent with section 61 of the Constitution of Zimbabwe.
At the hearing of the matter, Cde Chinamasa and Justice Chiweshe raised a point about the competence of the MDC to bring such action in terms of section 24 (1) of the Constitution. Their lawyers contended that the MDC application was made in the wrong court and the alleged contravention in the affidavit did not comply with provisions of that section. Mr Tsvangirai also sought the declaration that various sections raised in the application of the Act were inconsistent with provisions in Zimbabwe's supreme law. But the respondents argued that no allegations whatsoever were made that the sections referred to were inconsistent with the provisions of the Constitution.
The court also made an observation that in terms of the affidavit filed by the MDC faction leader, no contention was made that the declaration of rights had been, was being or likely to be contravened in respect of him. Further, the sections relied upon by Mr Tsvangirai to be inconsistent with the Constitution were not provisions provided in the declaration of rights. The declaration of rights is contained in chapter 3 of the Constitution. The sections, to
which reference was made in court by Advocate Happias Zhou, who represented the MDC in the application, related to section 61 of the Constitution. The section does not fall under chapter 3. The court invited the parties to deal with preliminary points raised by the respondents. In the ensuing debate, the court noted that the MDC application did not support the stance the party took at the time of arguing the matter. Adv Zhou strenuously argued that section 11 of the Constitution encapsulates the declaration of rights despite it not having been stated in the application, saying it was a legal issue which nevertheless could be raised. In response to Adv Zhou's submission, Mr Chikumbirike brought to the attention of the court provisions of subsection 5 of section 24 of the Constitution upon which the application had been premised. "In terms of the subsection, section 11 is excluded from the consideration which would entitle the applicant (Mr Tsvangirai) to the relief which he seeks," said Mr Chikumbirike.
Adv Zhou conceded to the point raised and then sought to amend the draft order, but the matter could not end there. Mr Chikumbirike then pointed out that it seemed naive that Adv Zhou after making a concession, would now seek to obtain a final and substantive order. Mr Chikumbirike argued that even if the proceedings were predicated on section 11, the MDC would still be out of court. "The concession made about the validity of the provisions of subsection 5 of 24 . . . was an admission about invalidity of the application and relief sought," he submitted.
The court adjourned briefly and reconvened to make the ruling. Mr Obert Gutu of Gutu and Chikowero instructed Adv Zhou in the matter.
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