Elections post-mortem


AS predicted in our column last week, the presidential inauguration has been halted, giving way to MDC Alliance’s July 30 presidential candidate Nelson Chamisa to challenge the presidential election results. This now places us in a fourteen-day period by which the Constitutional Court (ConCourt) must give judgment on the matter. The inauguration can only take place after judgment is handed down by the court and this must be done within 48 hours, unless the court decides that fresh elections must be held.

Just Saying: PAUL KASEKE

This piece is another dedicated article to correcting some misconceptions about the laws governing current electoral processes. As we expand this column, I want to thank those readers who have given constructive feedback to our weekly articles. Going forward, I would like to give budding columnists a chance for collaboration in our column as we can only learn from each other. If this suggestion speaks to you, kindly send me an email and we can discuss how to work around this. We will also open up a question space in the column so if you have a burning question on topics generally covered by this column, feel free to send it to me and I will try my best to answer it in the next column. For now, though, let’s demystify some misconceptions:

 ‘The Electoral Court will hear the matter’

Some people have suggested that the presidential challenge to the election will be heard by a high court or an electoral court. When it comes to the presidential election, the case can only be heard by the ConCourt per s93(1) of the Constitution and this must be done within seven days after the date of the declaration of results.

 ‘Justice George Chiweshe can possibly hear the matter’

For some reason, there is an obsession with which judges will sit for this matter. There has been a claim that Justice Chiweshe will hear this matter. This is not a possible reality currently. Justice Chiweshe is the President of the High Court and currently does not form part of the ConCourt. He has however, sat as a judge of the ConCourt in an acting capacity. He was part of the bench in the Morgan Tsvangirai v Robert Mugabe petition of 2013, for example. In terms of s166 of the Constitution, the ConCourt is made up of the Chief Justice, the Deputy Chief Justice and five other judges of the ConCourt. Kindly note, however, that currently this section is read alongside the 6th schedule, which in terms of 18(2), determines that the structure of the court is the Chief Justice, Deputy Chief Justice and seven other judges of the Supreme Court. This provision is part of the transitional arrangements in the Constitution and will fall away in 2020. Some of the ConCourt’s judges include former Zec chairperson, Justice Rita Makarau, Justice Paddington Garwe and Justice Bharatkumar Patel. The Chief Justice is Luke Malaba and the Deputy Chief Justice is Justice Elizabeth Gwaunza.

 ‘The court can invalidate the election and declare a winner’

The powers of the ConCourt are quite wide in an application of this nature and these emanate from s93 of the Constitution. In terms of this, the ConCourt may make a number of orders such as declaring a winner, invalidating the election or making any other order it considers just and appropriate. As with most jurisdictions, the power to make any order the court sees just and appropriate is the broadest judicial discretion afforded to the court and the meaning of this is determined by the court itself, hence it has been left open-ended. It is impossible to predict with any certainty what the ConCourt will do if it pursues a remedy in line with this provision and anyone who claims to know otherwise is being economical with the truth. The remedy of invalidating the election, on the other hand, is a very specific remedy which in terms of s93(4)(b), has one conclusion which is the calling for elections within 60 days from when the determination is made. The wording in the section is clear: “The ConCourt …may invalidate the election, in which case, a fresh election must be held within 60 days after the determination”. In other words, one cannot simultaneously ask for a declaration that he or she has won and invoke the provision above to invalidate the election. Once the court finds the election was a flawed process to the extent that it invalidates the election, then only one route follows: a fresh election. The only way to play around with the remedies is to rely on any of the other possible determinations by the court per s93, but the moment one asks for the election to be invalidated and the court accedes to this request, it seems quite clear that the Constitution does not permit any other remedy to accompany this declaration save for holding fresh elections. If the result was compromised and tainted by the illegality, no one can lawfully be declared to be a winner from a flawed electoral process. To ask the courts to invalidate the election and yet declare a winner from the same flawed election is to ask the court to approve of and endorse an unlawful process which goes against the Constitution and the concepts of the rule of law.

 ‘A single irregularity can be the basis of setting the election aside’

Some comments have been circulated to the effect that the petition in terms of s93, is the first case of its nature before the ConCourt. This is not true. In 2013, the ConCourt used the same provisions in the petition launched by the late Tsvangirai though he eventually attempted to withdraw the petition. The test that will be used is found in the ConCourt test formulated in that case, which draws on two sources — the Electoral Act and the Constitution.

The Electoral Act sets out a two-fold test before an election can be invalidated in terms of s177. In that test, one must show that there was a mistake or non-compliance with the Act, which shows that the election was not conducted per principles laid out in the Act. This is not all. After proving this first part of the test, the next question is whether the conduct in the first step affected the result of the election. In other words, it is not enough to merely show that there was an irregularity or non-compliance with the Act. That conduct or irregularity must have had the effect of affecting the result of the election. If an irregularity did not affect the outcome of the election, s177 does not permit a declaration of invalidity to follow.

The tricky part is, of course, that the Act must be read alongside the Constitution and where there is a conflict, the Constitution must prevail over the Act because of the principle of constitutional supremacy. The Constitution broadly describes the conduct expected in elections in s155. In terms of this, elections must be free, peaceful, fair, free from violence and other electoral malpractices. The ConCourt will be tasked with fleshing out the meaning of these concepts. The Electoral Act test was reformulated by the ConCourt in the case of the late Tsvangirai, where it held ‘the meaning of s93(3) of the Constitution as implying that the court must inquire into and establish whether the alleged acts of corrupt practices, irregularities or acts, on which the validity of the election was impugned, happened. If acts are found to have happened, the court must inquire into the question of whether they materially affected the validity of the election.’ Ultimately, this is the test the ConCourt is likely to use because it created precedent for itself in 2013 and is not likely to deviate from its own principles.

 ‘The petition can be thrown out on technicalities’

In the Tsvangirai v Mugabe petition of 2013, the current Chief Justice, who was the Deputy Chief Justice at the time, went to great lengths to explain that the seriousness of this petition was such that the court had to hear the matter. This is based on the phrasing of s93(3) ‘The ConCourt must hear and determine a petition …within 14 days’. The ConCourt argued that given the importance of the matter, a withdrawal of the petition would not be possible. To quote the learned Chief Justice: “The Court would have no choice, but to ‘hear and determine’ the petition or application lodged with it under s93(1) of the Constitution. It cannot put itself, or let itself be put, in a position in which it is unable to hear and determine the petition or application. A petition or application can be heard and determined when it is extant at the time of hearing’. If you read the judgment closely, you will notice that the court was of the view that once an application or petition is lodged, it has a reciprocal and mandatory duty to hear the matter and seemingly so even where some defects exist. It is substance over form in this kind of petition. This is not an ordinary court matter that can be dispensed on technicalities.
Based on its own jurisprudence, I do not believe the ConCourt will dismiss the matter without engaging on the merits of the case.

 ‘The papers should have been served on the President at his residential place’

In terms of the ConCourt rules, the President, Vice-President or someone with a similar public office must be served at their place of business (see Rule 9 of the ConCourt’s rules)

 Can the petition be appealed?

In terms of s93(3) of the Constitution, the decision of the ConCourt is final and cannot be appealed. Quite literally, the ConCourt will determine what happens to the Executive of the country in its judgment. This is the last legal recourse available to Chamisa …just saying!

 Paul Kaseke is a legal and compliance specialist, commentator, policy analyst and former law lecturer with the Wits Law School. He writes in his personal capacity. You can give him feedback via email: feedback@paulkasekesnr.com or follow him on twitter @paulkasekesnr

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