AFRICA continues on its path of deepening electoral democracy, with elections being held regularly and within timeframes provided for in constitutions in most African countries.
As the final arbiter on the integrity of national elections, the judiciary is increasingly under pressure to decide, sometimes on close races and in politically charged environments.
With elections being increasingly competitive with tight margins between contestants, the role of the electoral judge is crucial in peaceful transfer of power following elections and in maintenance of peace and stability in Africa.
This has resulted in closer public scrutiny of the judiciary in its role in election dispute resolution. Zimbabwe is no exception.
There has been a big storm raised as a result of the numerous litigation that has been filed ahead of the harmonised elections on 23 August 2023 and judgments that have come out of the superior courts (High Court and Supreme Court) in Zimbabwe.
After the nomination process was done on 21 June 2023, significant court cases were filed with superior courts challenging the validity of the nominations of opposition candidates by people affiliated to Zanu PF.
The main ones were the challenge brought against exiled presidential candidate Saviour Kasukuwere’s nomination on the ground that he was not ordinarily resident in Zimbabwe for the past 18 months and the one against 12 MP candidates of the opposition Citizens’ Coalition for Change (CCC) in Bulawayo on the basis that their nominations were accepted after the 4pm nomination deadline had passed on 21 June.
In both cases, the superior courts (High Court and Supreme Court ) agreed with the challenges and nullified the nominations of the 12 CCC MP candidates and the presidential aspirant Kasukuwere. This means that the 12 CCC MP candidates and presidential candidate Kasukuwere will not have their names on the ballot paper on election day.
The right to deploy public officials during elections belongs to the voters and not the courts. As the African Union Declaration on the Principles Governing Democratic Elections in Africa says, “democratic elections are the basis of the authority of any representative government”. So any decision by any court needs to be pro-voter and not create a perception that after the elections, it is candidates favoured by the courts and not those chosen by voters who are in office. The public must never be left with a perception, rightly or wrongly, that the courts have substituted themselves for the electorate.
Yet on the other hand, the courts only handle cases that are brought before them as they cannot initiate proceedings. Everyone, including Zanu PF supporters, have a right to initiate proceedings if aggrieved and, once done, the courts must decide on the facts and the law.
In deciding, the courts must be acutely aware that in elections the principle has to be procedural certainty and outcome uncertainty. So the nomination rules are expected to be applied justly and fairly and without fear or favour. Parties have a duty to comply with the law and have primarily themselves to blame for ineptitude and failure to comply with nomination requirements.
The question of whether timelines were met is a question of fact and not law. The court would be expected to give deference to the Zimbabwe Election Commission (Zec) stipulations of what happened. If there is a dispute of fact, the benefit of doubt should be given to Zec as the administrative organ.
This approach helps to strengthen the hand of Zec as the election management body rather than undermine it and create a perception of Zec being subordinate to the courts when it comes to election administration. In simple terms, the court must never be seen as the ultimate elections administration body as this runs the risk of politicising the courts and ultimately undermining the public perception of the independence of the courts. That in itself becomes a peculiar threat to the rule of law. At all times, Zec must be seen as the election management body by the voters.
On matters of administrative discretion in conducting electoral processes, the court would be expected to defer to Zec. The court cannot substitute its own discretion unless the use of administrative discretion by Zec is so unreasonable as to induce a sense of shock and outrage. In other words, even if a judge feels that given the circumstances, s/he could have used her or his discretion differently than what the Zec official did at the nomination court; that is not enough legal basis to overturn the decision of the nomination court.
The court is not being asked to demonstrate how it will have decided on matters if it was in the shoes of Zec during the nomination process, but rather, to pass judgment on the legal correctness of the process that happened during the nomination process.
Ultimately, any judicial decision has to be cognisant of the settled principle that an election has to offer real choices for the voters so as to make the election meaningful and worthwhile. An election without choices is not an election. It is a robbery to the voter since the law is clear that “the will of the people shall be the basis of the authority of government”.
The will of the people to give authority to elected public officials is “expressed in periodic and genuine elections which shall be by universal and equal suffrage by secret vote”. When an election has no choices for voters as a result of judicial intervention, it leaves the public with a strong sense of being robbed of their fundamental rights and in particular sovereign rights that are vital to constitute the modern state as we know it.
This leaves us with the question, to what extent can the administrative or logistical errors or ineptitude or even incompetence of the party administration who is in substantial compliance with nomination process be a basis to disqualify a candidate and deprive the voters of their right to choose their own leaders by decreeing them an election with no choices? Can it be an election without choices?
With the increasing role of the judiciary to adjudicate over election and electoral disputes, could the African judiciaries intentionally work towards jurisprudence that increases electoral fairness and justice and be not overly technical to a point of taking away the voters’ rights to genuinely express their will in elections to deploy public officials into office. In other words, can it be possible to deliver a judgment that punishes the incompetent party administrator without punishing or eroding the right of the voter that comes once every five years to vote and deploy a leader of their choice (and not the court’s choice) into public office?
Unfortunately in the end, the judicial decisions of superior courts in Zimbabwe have, rightly or wrongly, made the most anticipated elections in the 43 years of Zimbabwe’s independence a potential total non-event.
About the writer: Arnold Tsunga is a human rights lawyer and the principal managing partner at Tsunga Law International and convenor of Civic Space Network in Africa.