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Chiota and Shumba vs ZEC
Supreme Court of Zimbabwe
August 28, 2008

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Chidyausiku CJ, Sandura JA, Ziyambija, Malaba JA & Garwe JA.
Harare May 22 & August 01, 2008

R M Fitches, for the applicants
G C Chikumbirike, for the respondents

Chidyausiku CJ: The applicants in this case allege that their right to freedom of association, guaranteed by ss 21(1) and 21(2) of the Constitution of Zimbabwe ("the Constitution"), and their right to protection of the law, guaranteed by s 18(1) of the Constitution, were violated by the second respondent, an employee of the first respondent. The alleged violation of the applicants' rights occurred in the course of the second respondent's employment with the first respondent.

The facts

The applicants in this case are leaders of two different political parties. Both applicants wished to contest the Presidential Election conducted on 29 March 2008. The election which the respondents wanted to contest is complete and the outcome has been announced. The applicants are seeking a declaratory order that their rights were violated. Mr Fitches, for the applicants, submitted that the outcome of this application has no bearing on the already completed election. He contends, however, that this application for a declaratory order is more than a mere academic exercise. He contends that a determination by this Court will provide a useful guideline for the future conduct of election officials. Put differently, the completed electoral process will not be affected by the outcome of this case.

15 February 2008 was the nomination day for the Presidential Election conducted on 29 March 2008. All aspiring candidates wishing to contest the 29 March 2008 Presidential Election were required to file their nomination papers by four o'clock on the afternoon of 15 February 2008.

The first applicant avers that on 15 February 2008 he arrived at and entered the nomination court at or about 15.45 hours. This was fifteen minutes before the official closing time for nominations. He submitted his nomination papers to the second respondent who advised him to wait until the official had finished attending to the second applicant. The second applicant at that time was filling in some forms. He sat in the nomination court awaiting his turn to be attended to and to file his own nomination papers. When the second applicant finished filling in his papers, he presented them to the second respondent, only to be told that the nomination court had closed and his nomination papers would not be accepted. When the second applicant was told that his nomination papers could not be accepted, the first applicant moved forward to submit his own nomination papers as he had been advised to wait until the nomination officer had finished attending to the second applicant. The first applicant contends that upon presenting his nomination papers he too was told that his nomination papers could not be accepted as the nomination court had closed. He protested at this turn of events to no avail.

What transpired thereafter is not entirely clear from the affidavits filed by the parties. The first applicant sets out his version of what transpired in para 11 of the founding affidavit, while the first respondent sets out its version of what transpired in para 6 of the opposing affidavit. The two versions do not present a clear chronology of the events which occurred thereafter. Mr Chikumbirike, who appeared for the respondents in both the High Court and the Electoral Court proceedings, made certain submissions, which were accepted by the applicants as correct. These submissions, to some extent, clarified what transpired after the rejection of the applicants' nomination papers.

The following appears to have happened. After the rejection of their nomination papers, the applicants launched a Chamber application in the High Court. The chamber application to the High Court is attached to this application. In terms of the draft order the applicants sought the following relief from the High Court:

1. The respondent is ordered to accept the applicants' papers.

2. The respondent is ordered to declare the applicants duly nominated for the March 2008 Presidential Elections.

3. That the respondent pays costs of suit.

According to Mr Chikumbirike, the matter was argued before GUVAVA J, sitting as a High Court Judge. She dismissed the Chamber application on the basis that the High Court had no jurisdiction to entertain the application and that it was the Electoral Court that had jurisdiction to deal with the matter in terms of s 46(19) of the Electoral Act [Cap. 2:13] ("the Act").

Thereafter, the application found its way to the Electoral Court in terms of s 46(19) of the Act. According to Mr Chikumbirike, the application was heard by Uchena J, sitting as a Judge of the Electoral Court. The application was dismissed on the ground that the matter had prescribed. In terms of s 46(19)(b) of the Act, a candidate has a right of appeal against a decision of the nomination officer to a Judge of the Electoral Court. In terms of s 46(19)(c) the right of appeal lapses after four days and the decision of the nomination officer becomes final.

After the dismissal of the appeal by the Electoral Court nothing happened until 15 April 2008 when the present application was launched in this Court. This application is made in terms of s 24(1) of the Constitution. As already stated, the applicants are asking for a declarator that does not seek to change the outcome of the already completed election.

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