Big Saturday Read: When Electoral Reform Becomes Democratic Reversal
Prologue: Reactionary Reforms
Whenever people talk about elections in Zimbabwe, the next words are almost always ‘electoral reforms.’ Some even go so far as to say that there can be no elections without reforms. Others ask: what reforms? And yet still others are more pessimistic, pointing to the futility of expecting ZANU PF to reform itself out of power. The ruling party certainly has no incentive for electoral reforms.
On occasions, an amendment is introduced to the Electoral Law, purporting to change aspects of the electoral system in the name of reform and progress. Sometimes these changes bring some light to an opaque process, but on other occasions, they add more darkness, making the electoral system far worse than it was before. In such situations, the changes are reactionary.
This BSR examines an element of the electoral system which was introduced in 2018 as part of a package of “electoral reforms”, which practice has since shown to be retrogressive. It has brought darkness to an area that needs light. It is important to discuss it because even if there was no intention for it to be so retrogressive, the way that it has been interpreted by the courts makes it a potent weapon that can be easily used to subvert the will of the voters.
The story of Gift Konjana who represented the MDC Alliance during the 2018 general elections is central to this examination. It is therefore with that story that we begin the analysis.
Chapter 1: Konjana v Nduna (2021)
On 30 Jul 2018, the Zimbabwe Electoral Commission (ZEC) declared Dexter Nduna, representing ZANU PF, the winner of the election in the Chegutu West constituency with 10,932 votes. It was a very narrow victory over his closest rival, Gift Konjana representing the MDC Alliance, who was recorded as having received 10,828 votes.
But Konjana was not satisfied with this outcome. He discovered that ZEC had made an error during the collation of results, which had resulted in some of his votes being attributed to another candidate who was far behind in the race. Whether this was a genuine mistake remains moot, but in any event, it was discovered. If those votes had been correctly attributed to Konjana, he would have been declared the winner, not Nduna.
Armed with this discovery, Konjana raised a complaint with ZEC, the electoral referee. ZEC admitted that it had made the error. But, incredibly, ZEC claimed it had no power to change the results and that this required the intervention of the courts. Later, I shall demonstrate why ZEC was wrong to abdicate responsibility to correct this error. For the moment, what matters is that its stance left Konjana having to fight a lonesome court battle to correct the error and claim his rightful place in Parliament.
What should have been a straightforward matter turned out to be a complete nightmare for Konjana. It became a protracted and frustrating legal merry-go-round which, incredibly, ended in defeat for Konjana. On 23 March 2021, the Supreme Court delivered a heavy blow when it threw out his appeal on a technicality, the circumstances of which are the subject of this examination.
The outcome is a subversion of the democratic will as the constituents of Chegutu West were left with Nduna, who by ZEC’s admission, lost the election. How did it come to this? How is it that a man who won the election is not in Parliament while the man who lost is the current MP? This BSR examines these questions and in doing so, demonstrates the retrogressive nature of the so-called electoral reforms of 2018 and their interpretation by the Supreme Court.
However, before I proceed with the Konjana/Nduna drama, I must take a necessary detour into another case, which is similar. That case was decided a few months before the Konjana matter. The outcome of both cases turned on the court’s interpretation of the same provision of the Electoral Act.
Chapter 2: Sibanda and others v Ncube and others (2020)
Lwazi Sibanda, Betty Hlabangana, Nah Khumalo, and Godwill Ndlovu were all members of the MDC-T led by Dr. Thokozani Khupe. They were on the proportional representation list of their party at the 2018 elections. They were aggrieved when their party was excluded by ZEC from parties that were considered for filling the proportional representation seats in their provinces. They took their grievances to the Electoral Court.
However, like Nduna, their petitions were dismissed by the Electoral Court on technical grounds. The respondents had argued that the petitions were fatally defective on several technical grounds and the Electoral Court agreed with this view. The petitions were therefore dismissed without any consideration of the merits.
Like Nduna, they appealed to the Supreme Court. The respondents raised further technical objections, arguing that the appeals were fatally defective and should be dismissed. The Supreme Court agreed, and the appeals were dismissed on technical grounds. This means the dispute was never determined on the merits.
The most important commonality between the Konjana and the Sibanda cases, as I shall call them for ease of reference, is that they were both dismissed on the same technical ground, namely that the time-limits set for the determination of electoral disputes had expired and, therefore, the courts no longer had jurisdiction (power) over the cases. It is how the Supreme Court came to this conclusion and its implications that are at the core of this analysis.
I have often described the law as a knife which in the hands of a chef in the kitchen is an instrument of culinary endeavors but in the hands of a criminal is a dangerous weapon. These two cases are an interesting demonstration of this phenomenon. The MDC Alliance was both a beneficiary and a victim of the relevant provision. In the Sibanda case, the MDC Alliance found the provision useful to defend its MPs, but in the Konjana case, the same provision proved fatal to its cause. However, the opposition would be foolhardy to defend this provision because it is more likely to be used disproportionately against it, especially given the architecture of the electoral system.
Chapter 3: Types of defences
To understand what happened in these two cases, I should explain an important distinction of the grounds upon which legal claims are decided by the courts. In general, there are two types of grounds depending on the defences raised by the defendant: preliminary and substantive.
A preliminary defence is based on procedural grounds. Sometimes the term used is “technicalities”. One example is the argument that the person making the claim does not have locus standi, a Latin term which refers to legal standing. The defendant will be arguing that the claimant does not have the requisite legal standing. A defence lawyer may also find fault in the way the claimant has drafted his documents and will argue that there is no compliance with court rules. The defence might also argue that the claim has not been made within the time prescribed by the law. Success on each of these preliminary issues results in the dismissal of the claim and the court will not have to go into the merits of the case. Defence lawyers always look for preliminary/technical objections whenever a client presents his case.
A substantive defence on the other hand is based on the merits of the case. The defendant disputes and challenges the merits of the claimant’s legal case. The court considers the evidence and comes to a decision based on the strength of its merits. Laypersons are often surprised when a matter that they consider to be a “clear cut” case results in the discharge of the accused person in a criminal case or success for the defendant in a civil case. They wonder how it is that this “murderer” or “corrupt” person could have been discharged by the court when the case is so “clear”. This happens because while laypersons are often focused on the merits, the defence lawyers would have focused on the technical loopholes and convinced the court that there is no need to go into the merits.
Now, in a corrupt or inefficient legal system, compromised prosecutors can deliberately mess up on the procedure, thereby presenting an opening for the defence to attack and get the case thrown out. That is why many corrupt individuals get away with it. They do not have to defend their cases on the merits; their lawyers simply find fault with the procedure and sometimes these faults are deliberate. That is what happened in the case against Delish Nguwaya and Drax, a case which the BSR argued from the start was built to collapse.
This is what happened in both the Konjana and Sibanda cases. They were dismissed on the technical ground that the time limits for determining electoral disputes had long passed by the time the Supreme Court gave its decision. The merits of the disputes were never considered. I must explain the technical basis upon which the cases were dismissed.
The Technical Issue
The technical issue upon which the cases turned was whether the election petitions were out of time and if so, whether the court still had jurisdiction to hear them.
The respondents argued that the Supreme Court should dismiss the appeals because they were out of time. The cases had been brought within time. The problem is that by the time they were argued at the Supreme Court, they were outside the time limits set by law. The Supreme Court agreed with the respondents, leading to the dismissal of the appeals without even considering their merits. This was even though in the Konjana case, the Supreme Court admitted that appeal had merit. Therefore, a perfectly strong case was dismissed purely on technical grounds. But was the court right to reach this conclusion? Let us consider the relevant provision and how the court interpreted it.
Section 182 – Time Limits: Is the provision peremptory or directory?
Section 182(1) of the Electoral Act provides that “every election petition shall be determined within six months from the date of presentation”. Section 182(2) adds that an appeal to the Supreme Court “shall be determined within three months from the date of the lodging of the appeal”. The key feature of these provisions is that they set time limits for the resolution of electoral disputes. What the provision does not do, however, is set out the consequences of not meeting these time limits. This depends on whether these time-limits provisions are peremptory or directory.
If they are peremptory, it means non-compliance with the time limits leads to the invalidity of any actions that are done outside the time limits. There is no room for flexibility. If therefore, electoral disputes are not determined within those time limits, they are no longer valid. If, on the other hand, the provisions are merely directory, it means there is a measure of flexibility and in some cases where time limits are not observed, actions done outside the time limits may still be valid.
In these two cases, the defendants argued that the provisions were peremptory and that there was no room for flexibility. The aggrieved petitioners argued that the provisions should be interpreted as directory, which meant the courts could be flexible even when the time limits were exceeded. This latter approach had been adopted in the past in the case of Timba v Passade (2014), the High Court said the petitioner could not be punished where time limits were exceeded in circumstances that were beyond his control. In the latest cases, however, the Supreme Court agreed with the defendants that the provisions were peremptory and dismissed the appeals because the time limits had been exceeded. The fact that the cases had started during the permissible period was disregarded; everything had to be concluded within the time limits.
The Supreme Court took the view that it was up to the aggrieved candidates who were petitioning the Electoral Court to take action to ensure adherence to the strict timelines. It held that in both cases, the aggrieved candidates had not done anything to expedite the matters even though, in its view, they had the facility to do so under section 182(3) of the Electoral Act. This provision states that to ensure that an election petition or an appeal is determined within the prescribed time limits the Judge President of the High Court, the Chief Justice or presiding judges may give directions over the management of the case to ensure that adherence to the time-limit. The judge interpreted this provision as imposing obligations on the aggrieved parties to take action to ensure compliance. However, it is arguable that the Supreme Court erred in its reasoning on this point, something which will be discussed in the next section.
Chapter 4: Analysis and Implications of the Supreme Court Decision
The decisions of the Supreme Court in these two cases have important implications for the handling of election petitions and Zimbabwe’s electoral democracy. They have raised the barriers for petitioners, making it far more difficult to challenge election results. The fact that a clear case like Konjana’s failed is an ominous sign for the future.
Prescription of Electoral Petitions
First, there is now effectively a highly restrictive prescription period for election petitions. Once time limits in section 182 are up, the election petition expires regardless of its merits. It does not matter that the aggrieved candidate brought his case within the time limits, it must be determined within that restricted period otherwise it becomes invalid. The problem is that the petitioner does not control the adjudication process. He can seek directions from the court but at the end of the day, if the court delays in handing down the decision beyond the time limit, there is nothing that the petitioner can do.
This is different from the past when courts were more flexible in their approach to the issue of time limits. They could exercise discretion to still hear and determine a matter even if it fell outside the time limits because they said the provisions were directory, not peremptory. This meant an aggrieved candidate’s right of access to the court was protected. This is no longer the case. Once the time limit is reached, even if the aggrieved petitioner is not to blame, that’s the end of his petition. This means the aggrieved petitioner is in a worse position after the 2018 “electoral reforms” than he was before the reforms.
The ouster of Courts in Electoral Disputes
Second, and related to the first point, the Supreme Court effectively confirmed the ouster of judicial jurisdiction in electoral disputes after the expiry of the time limits. According to the judgments, once the time limits are up, the courts no longer have any power to hear or determine electoral disputes. This is so even if the petitions were brought within the time limits. This narrow and restrictive interpretation of section 182 is a severe derogation from the right to a fair hearing under section 69 and the right to protection of the law under section 56, both of the Constitution.
While derogations from these rights are permitted, they must be reasonable. Arguably, restrictions which severely curtail the right of an aggrieved candidate to get a resolution of an election dispute are not reasonably justifiable in a democratic society. How can one justify the denial of an opportunity to resolve a clear case of a mistake, which ZEC itself admits in the Konjana case, and say that this is reasonably justifiable in a democratic society? The use of a technicality to subvert the democratic will makes a mockery of the law in the eyes of the voting public and severely reduces their respect and confidence in the electoral system. What is the point of voting, they will ask justifiably if the electoral referee can make a simple mistake and that mistake cannot be resolved?
Third, the Supreme Court placed a disproportionate amount of duty and expectations on aggrieved petitioners to enforce compliance with the time limits when they lack power and control over the judiciary. Justice Patel reasoned that it is up to aggrieved petitioners to seek directions under section 182(3) to ensure that the time limits were met. In doing so, he mistook their right to apply for directions with control over the adjudication process. Even if they seek directions, there is no guarantee that they will be granted or that even if they are granted, the time limits will be met. The fact is aggrieved petitioners have no power to tell the courts what to do, let alone to enforce the decisions of the court. They are still at the mercy of the courts. The judge exaggerated their power.
Apart from placing false and excessive expectations on the shoulders of aggrieved petitioners, Justice Patel wrongly excused judicial officers upon whom the responsibility to ensure compliance with time limits is placed by the legislature. Section 182(3) provides that it is the duty of the Chief Justice, Judge President, or presiding judges to give directions to ensure that time limits are met. The provision is clear that the duty to ensure time limits are met is on these judicial officers. However, in his interpretation, Justice Patel shifted this responsibility from the judicial officers to the petitioners.
On his interpretation, these judicial officers’ duty is dependent on the actions of aggrieved litigants. This cannot be accurate. Litigants have always had the right to seek directions in legal proceedings and the legislature could not have intended to restate the obvious when it enacted section 182(3). This is a special and unusual provision in that it places specific obligations on senior judicial officers regarding electoral matters. The legislature imposed these special duties because a judicial officer has a unique and unusual role in electoral petitions. While our system of adjudication is usually adversarial and the judges play a very limited role, section 182(3) introduces an inquisitorial role for judicial officers in electoral matters in which they have an active and interventionist role in proceedings. If the Supreme Court had fully exercised its mind to the nature and implications of this provision, it would have read more into the role of the judges as mandated by the legislature.
Instead, Justice Patel missed a great opportunity to articulate the special and unique role created by the legislature for judicial officers in election petitions. This is in keeping with the spirit of creating specialized Electoral Courts whose procedures and practices ought to be far more flexible and permissive to ensure that justice is done within the limited time-frames. Therefore, when a party raises a preliminary issue, the judge can call for an argument on the merits at the same time so that when he gives judgment, it is on both procedural and substantive issues, and should a party wish to appeal, this can be done at the same time. This limits the incentive to abuse the limited time limits.
While the judge referred to the legislative history, his focus was only limited to the 2018 amendment. If he had broadened his focus, he would have observed that the idea of expediting electoral disputes was principally designed to avoid the mischief of protracted cases which went beyond the life of Parliament often because of judicial and administrative inefficiencies. After the 2000 elections, although the MDC won several election petitions, the appeals by ZANU PF candidates dragged on until long after the end of the parliamentary term. The delays were not caused by aggrieved litigants. They were caused by a judicial system whose wheels turned slowly making the election petitions redundant.
If the judge had looked at the full legislative history of the 2018 amendment, he would have observed that one of the original clauses proposed to deduct wages from judges who did not deliver decisions on election petitions within time limits. Clause 172B(4) stated that “the remuneration, allowances, and benefits of the judge or judges who presided over the petition or appeal shall be withheld until a decision is delivered”. This tampering with judicial remuneration was unconstitutional but one can see that the legislative intent was to give an incentive for judges to ensure that cases were expedited and decisions were made within the prescribed time limits.
Fourth, the approach taken by the Supreme Court leads to an absurdity whereby through no fault of his own, an aggrieved candidate might become stranded when his case falls outside the prescribed time limits. In these two cases, the judge based his view on the basis that the aggrieved litigants had not done anything to ensure their cases were expedited. That may be so, but what about situations that may arise where an aggrieved litigant does everything possible but still finds his case out of time? Going by the Supreme Court’s reasoning, this makes no difference because all that matters is that when the time limit is up, the election petition expires.
The implication of this is that an aggrieved petitioner who sits back and does nothing and another who gets up and tries to ensure compliance with the time limits are still in the same position if the time limit is reached. They both will not be heard by the court because it will have no jurisdiction on account of being out of time. This is an absurdity that could not have been intended by the legislature. If the Supreme Court believes a petitioner who does nothing should be punished, surely a petitioner who tries to enforce compliance with the time limits but finds himself out of time should not be similarly punished? One way to cure the absurdity is to adopt an interpretive approach that regards the provisions in section 182 as directory, not peremptory. In that way, a petitioner who tries his best to ensure compliance would not be punished.
Worse off than before the “Electoral Reforms”
As I have already pointed out, the irony is that the Supreme Court decisions leave aggrieved petitioners worse off after the 2018 electoral reforms than they were before. To appreciate this, let us look at the case of Timba v Passade (2014). In that case, Timba had petitioned the Electoral Court after the 2013 elections. The matter was only decided in 2014, long after the 6 months’ time limit that was prescribed under the Electoral Act. The High Court rejected the argument that the provision for the 6-months time limit was peremptory, holding instead that it was merely directory. The High Court reasoned that the provision was designed for the court which was beyond the litigants’ control. The High Court ruled that “it would lead to an absurdity if Parliament were to visit the petitioner with a penalty extinguishing his right to a fair hearing and determination of his claim within a reasonable time in circumstances where he is not at fault”.
In the Timba case, the High Court took a reasonable approach to the issue, recognizing that section 182 was directory, not peremptory. This meant even if the case was decided out of the 6-month time limit, it was still valid. The Supreme Court has now departed from that approach, reasoning that the new section 182 is different in that litigants now have control over the adjudicative process following the 2018 amendments. This is flawed reasoning because if anything, the 2018 amendments place the duties to expedite electoral disputes specifically on the shoulders of judicial officers, reaffirming the reasoning of the High Court in the Timba case.
The consequence of the Supreme Court’s recent decisions is that Timba in 2013 was better protected by the law than Konjana in 2018, even though there had been an “electoral reform” in 2018. How could the legislature, which was supposedly carrying out electoral reforms in 2018 have decided to place aggrieved petitioners in a more perilous position than they were before the reforms? It defies logic. It does not make sense. Konjana is no different from Timba – both are mere petitioners who have no control over the adjudication process, even they have the right to ask for directions. It is the judicial officers who are required to take active measures to enforce compliance with time limits. They can do so mero motu without waiting for applications from parties.
Fifth, the Supreme Court’s strict and inflexible interpretation presents a moral hazard whereby defendants will use delaying strategies to run the clock and frustrate aggrieved petitioners leaving them without a remedy. A defendant who knows that an election petition will be thrown out if it falls outside the time limits has an incentive to take his time. He can do so by raising multiple preliminary objections which will detain the court for some time, as happened in the Konjana and Sibanda cases. The outcome will be that the matter will be out of the prescribed time limits leaving the aggrieved petitioners without a legal remedy.
In both cases that were before the Supreme Court, the respondents raised preliminary defences both at the Electoral Court and the Supreme Court and these took all the prescribed time to be concluded. They were both concluded way after the expiry of the prescribed time limits. Even if the Supreme Court had allowed the aggrieved petitioners’ appeals, the cases would still have been remitted to the Electoral Court for a hearing on the merits. The decisions at the Electoral Court would still have been subject to another appeal!
All in all, the amount of time required for such litigation would have left the cases outside the prescribed time limits leaving the aggrieved litigants without a remedy. This is an absurdity and an injustice that could never have been intended by the legislature when it introduced the reforms. Even if it were the intention, it would fall foul of the constitutional protections of fundamental rights and freedoms, a point to which we will turn very soon. Suffice to say that these provisions for expediting electoral petitions were never designed to punish aggrieved petitioners. Instead, they were meant to help them, so that defendants did not drag cases beyond the life of Parliament as has been the case in the past.
Doing a Nduna
The above moral hazard means there is now more than ever greater potential for more Ndunas in future elections. This is how it will happen: a ZEC official will simply make “a mistake” just like one did in the Chegutu West election. This will leave the aggrieved candidate to fight a lonesome, protracted, and ultimately hopeless legal battle through the courts in which he will be racing against time. The greatest enemy for the petitioner is not the strength of the defendant’s case but time. All the defendant has to do is buy time, that’s all and when the time is up, he will ask the court to throw out the petitioner’s case.
This is the experience that Konjana suffered. He won the election. ZEC admitted to its error. But Konjana was left to shoulder the expense of the legal fight, which he lost on a technical ground. Even if he had asked for directions, there is no guarantee that he would have met the time limits. As I have already highlighted, the beneficiary of the “mistake” will raise preliminary defences, to lengthen the battle, buy time and frustrate the aggrieved candidate. Even if he loses in the Electoral Court, he will simply appeal, and because he has no incentive to push for a quick hearing, he will take his sweet time. There is no guarantee that if the aggrieved candidate applies for directions from the court he will get them. He does not control the court. The court can refuse to give directions. Even if it does, the directions might be so flexible as to be meaningless. On the court’s interpretation, once the time limits are up, the aggrieved candidate has no remedy, and he will have to live with the injustice.
In short, the regime has just found a new technique to frustrate the democratic process: ZEC will just make “mistakes” and leave aggrieved candidates to the vicissitudes of the legal system. This could happen as early as the by-elections which are now overdue. For example, ZEC can just make “mistakes” in favour of Mwonzora’s MDC-T party, leaving the MDC Alliance to fight hopeless legal battles. Knowing that this can happen is important so that everyone is prepared for it and the prepare countermeasures. When I make predictions, it is not because I believe they are inevitable. I have learned from The Alchemist one of my favourite books that no one knows the future and when it is revealed it is because it’s a future that is meant to be changed. When I predict these potential rigging mechanisms, it is not because they are inevitable, no. It is to highlight them so that those concerned can take pre-emptive measures.
A design flaw: the problem with section 182
The problem with section 182 manifests in two forms. First, the strict and inflexible interpretation given to the short time limits by the court exposes aggrieved petitioners to abuse because as we have seen the defendants can use delaying strategies to run the clock. The second problem is that the consequences of not meeting time limits are disproportionately weighed against aggrieved petitioners but there are virtually no consequences for the judicial officers or defendants should their conduct cause delays. Let us further examine this second problem.
According to the precedent set by the Supreme Court, if the time limits are up, the court no longer has any jurisdiction over the election petition. It is over for the aggrieved petitioner. He is left without a remedy. He is the only one that bears the consequences, even though he has no control over the judicial process. The judicial and administrative officers suffer no consequences for failing to decide the matter within the time limits, even if they are to blame for the delays. The defendant has no incentive to get the matter resolved.
However, a review of the legislative history of section 182, shows that the 2018 amendments were originally crafted to deal with the consequences of failing to meet the time limits. First, one of the provisions provided that a decision in an election petition or appeal would remain valid even if it were delivered after the time limits. In other words, the court could deliver the decision outside the time limits and it would still be valid. This provision saved petitions that exceeded the time limits so that even on a strict interpretation, they were still valid. It is not clear why this provision was removed from the final amendment but clearly, its absence has led the courts to adopt an unreasonably limited interpretation of the time-limits provisions.
Second, the original provisions of the Bill imposed penalties on judicial officers and lawyers for the parties where the time limits were exceeded. In the case of judicial officers, their wages and benefits would be withheld until they delivered the judgment while lawyers were penalized by loss of fees charged where petitions exceeded the time limits. The clauses were probably removed because of unconstitutionality. For example, the Constitution prohibits the reduction of judges’ remuneration at any point. However, the intention was to incentivize judges and lawyers representing parties in election petitions to avoid delaying strategies. Without any penalties, judges and especially lawyers for the defence have no incentive to expedite the determination of the election petition, which leaves the aggrieved petitioners exposed. The design of section 182 is flawed because it is weighed against aggrieved petitioners and has virtually no consequences for all other concerned parties. It needs a serious re-design if it is to serve any useful purpose otherwise as it is, it is merely a weapon against aggrieved petitioners.
Chapter 5: What should have happened?
Two things should have happened to prevent the predicament that Konjana and other aggrieved candidates suffered in these cases.
First, especially in the case of Konjana, there was no reason why this matter had to go to court at all. ZEC should have corrected its error instead of leaving Konjana with the burden of pursuing a legal battle. While according to section 66(4) of the Electoral Act ZEC’s declaration of a winner is final, there are 3 exceptions. One is that ZEC’s declaration can be set aside by the Electoral Court. The other relevant exception is that the winner can change after a vote recount. Section 67A of the Electoral Act allows an aggrieved candidate to request a recount within 48 hours of the declaration of results. ZEC must order a recount if it “considers there are reasonable grounds for believing that the alleged miscount of votes occurred and that, if it did occur, it would have affected the result of the election”.
Applying this to the Konjana case, ZEC admitted that it had made a mistake that affected the results. Konjana was well within his rights to ask for a recount in terms of section 67A. That recount would have focused on the constituency whose votes were misallocated to a different candidate. That would have enabled ZEC to revisit the matter and correct a mistake that it had admitted. ZEC did not have to wait for Konjana to request a recount. Section 67A(4) states that ZEC may “on its own initiative order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election.”
ZEC knew it had made a mistake in respect of votes relating to a specific constituency and it admitted as much. As the referee, it should have resolved this problem under the exercise of a vote recount. How does an electoral referee justify a situation where it presides over an election, makes a mistake which it fails and/or refuses to correct thereby prejudicing not only the winner but also the voters in that constituency who end up with the loser as their representative? The political referee should take an active interest not only in correcting its mistakes but also in ensuring fairness in the electoral process. There is too much litigation in our electoral system and where issues can be resolved without the need for litigation, such opportunities should be used. The Konjana/Nduna case could have been easily resolved by ZEC without the need for legal action. If anyone should have gone to court, it should have been Nduna after ZEC had corrected its error.
In any event, the notion that ZEC cannot change its figures after the declaration of the results is inconsistent with its conduct in the presidential election. By the time the presidential petition was heard by the Constitutional Court, ZEC had changed its figures more than once after the initial declaration. Therefore, the argument that it cannot change results after the initial declaration is false. It simply did not have any interest in resolving the Konjana/Nduna case because the error benefitted a ZANU PF candidate and prejudiced the MDC Alliance.
Chapter 6: The Constitutional Concerns
It is also arguable that either the terms of section 182 or the way it has been interpreted by the Supreme Court is unconstitutional. The Supreme Court rejected the argument of unconstitutionality but the Constitutional Court has the final say on matters to do with the Constitution. Section 46(2) of the Constitution requires courts to interpret enactment in a manner that promotes fundamental rights and freedoms. The Supreme Court appreciated this but still ruled that the strict interpretation of section 182 was not inconsistent with the fundamental rights and freedoms.
The aggrieved petitioners’ lawyers raised the concern that a strict interpretation that ousted the court’s jurisdiction affected their clients' right to a fair hearing which is provided for under section 69 of the Constitution. They argued that the time limits unduly limited the right of access to the courts for a resolution of their disputes. The court rejected these arguments, but with respect, its analysis was superficial and weak. The Supreme Court should have carried out a more in-depth analysis of the meaning of the right to a fair hearing and assessed the extent to which the current section 182 was a permissible derogation from that right. This is a matter that ought to be brought before the Constitutional Court, whose mandate is specifically designed to handle constitutional matters.
Another reason is that there would be an opportunity to canvass an argument that was not considered by the Supreme Court, which is the right to protection of the law provided for under section 56(1) of the Constitution. It states that “All persons are equal before the law and have the right to equal protection and benefit of the law”. The scope of this provision is broad and there is an arguable case that either the terms of section 182 or its interpretation by the Supreme Court or both do not guarantee “equal protection and benefit of the law”.
There is not enough space to get into much detail regarding these constitutional arguments but suffice to say that lawyers acting on behalf of aggrieved litigants should mount a constitutional challenge. It might not benefit their clients in the immediate term, but it will be relevant for future elections because how electoral disputes are resolved is a fundamental element of the electoral system. A credible electoral system must have a fair, efficient, and equitable dispute resolution mechanism. The evidence of these two cases and how they have been decided by the Supreme Court shows that the so-called “electoral reforms” of 2018 have made things worse for candidates who are aggrieved by electoral outcomes. Worse, chances that ZEC will make “mistakes”, leaving aggrieved candidates fighting lonesome and frustrating battles are high.
1. The design of section 182 which sets time limits on election petitions is flawed because it is unevenly tilted against petitioners. The Supreme Court’s interpretation has made it worse for petitioners while exonerating judicial officers.
2. The Supreme Court missed a great opportunity to identify and explain the inquisitorial nature of the role of judicial officers in electoral matters which is mandated by section 182(3) of the Electoral Act.
3. The Supreme Court erred in departing from existing precedent which interpreted the time-limits provisions under section 182 as directory and not peremptory.
4. The interpretative approach taken by the Supreme Court regarding section 182 unreasonably limits the aggrieved petitioner’s rights to a fair hearing and equal protection and benefit of the law under the Constitution.
5. The approach taken by the Supreme Court creates a moral hazard whereby defendants in election petitions will have an incentive to run the clock and avoid defending the cases on the merits.
6. There is an increased risk of ZEC officials making “mistakes” which will leave aggrieved petitioners fighting lonesome and frustrating legal battles in which the greatest enemy will not be the defendant’s case but the clock. The opposition must be on the lookout for the likelihood of more “mistakes” in future elections, especially in the forthcoming by-elections.
7. Under the current system, chances of succeeding in challenging elections results have become exceedingly slim, that if you do not guard the vote the first time, you will spend a long time fighting legal battles. One might argue that the system has been rigged against election petitions and this was done under the guise of “electoral reforms”.
8. The Konjana case should never have been the subject of litigation. It should have been resolved by the electoral referee, ZEC because it is the one that made the mistake and admitted to it. The matter could have been resolved without the need to go to court.
9. Section 182 and/or the interpretation by the Supreme Court should be challenged on constitutional grounds and when it does, the Constitutional Court should apply its mind more rigorously than was done by its junior court which took a disappointingly superficial approach to the issues.
10. Although the MDC Alliance was both a beneficiary and a victim of section 182 and its interpretation by the Supreme Court in these two cases, it and other opposition parties stand to be the biggest losers of its application. Going by history, it is the opposition that is more likely to want to challenge election results than the ruling party, and the restrictive approach towards petitions is going to hurt them especially now that the system has discovered that ZEC’s “mistakes” pay off quite handsomely.