HIGH Court judge Justice Owen Tagu has dismissed MDC Alliance aspiring councillor’s bid to force the Zimbabwe Electoral Commission (Zec) to accept his nomination papers almost two weeks after the nomination court had closed.
BY CHARLES LAITON
Tendai Saimoni, had submitted that on June 14, 2018 the nomination court in Chitungwiza where he was eyeing the ward 3 St Mary’s seat, rejected his papers due to late delivery.
Saimoni claimed that on the day in question, his agent Knowledge Buranda was manhandled and attacked by suspected MDC Alliance activists who later destroyed his nomination papers, leading to his failure to submit a new set of papers on time.
However, Justice Tagu said despite losing his papers in the manner described, the High Court did not have inherent jurisdiction to interfere with any proclamation made by the President in terms of section 144 of the Constitution. “The application before me is one for interdictory relief to compel the first and third respondents (Zec and Justice minister Ziyambi Ziyambi) to accept the applicant’s (Saimoni) nomination papers outside the sitting of the nomination court as prescribed in the proclamation issued by the President,” he said.
“It is, therefore, the case that raises jurisdictional competency of this court to make such an order … with respect, it is the order the Chief Justice said was incapable of being granted by the court outside jurisdiction of our courts including the High Court…its effect is simply this, this honourable court, if it grants the relief, will have set an additional sitting of the nomination court outside what is prescribed in section 144 of the Constitution, and, therefore, in contravention of the principle of separation of powers which is clearly set out in section 3 (2) (e) of the Constitution. That would be an unlawful order.”
The judge further said: “Inherent jurisdiction is not power to make orders against a statute … to make orders against a statute would be to subvert that statute, and this court is not given inherent jurisdiction to do so … This is a matter completely legislated and not an instance where jurisdictional intervention is called for. In this case there are civil and criminal allegations that arise and it cannot be the basis for saying the court has jurisdiction … even urgency cannot attach to that relief. For these reasons the application must be dismissed.”
