THE main opposition Citizens’ Coalition for Change has suffered another huge blow after the High Court ordered the removal of 23 candidates from the ballot for the 3 February, by-elections ruling that they had ceased to be party members following their recall last year.
The 23 include Amos Chibaya and Gift Ostallos Siziba alongside other councillors and senators.
Sitting at the Harare High Court, Justice Pisirayi Kwenda ruled that it was not logical for the 23 to participate on the CCC ticket because the party did not reinstate them.
The ruling followed an application by one Sengezo Tshabangu who is claiming to be CCC interim secretary-general.
“Indeed the respondents were recalled by the first applicant, indeed vacancies were created, by-elections were called for and will be held.
“Having observed the above, I find that the applicants have proved or made a good case to declare a correct position which is that the respondents having ceased to be members of CCC and not having being reinstated will not contest in the by-elections under CCC.
“Therefore, consequently it is ordered that the names of the first to the 23 respondents shall not be on ballot papers as members of CCC,” ruled the judge.
Last year, the same court ordered the removal of over a dozen members from the ballot after they were controversially recalled by Tshabangu.
Kwenda ruled that there was no reason for him to depart from earlier judgments because nothing was put before him to rule otherwise.
When the court sat on Friday, the judge also took a swipe at the lawyers representing the recalled members for failing to turn up in court, noting that they were in contempt.
Only Obey Shava representing CCC was available, indicating that he was to note down the reasons for Kwenda’s judgement.
“I’m disappointed that respondents in this matter have decided to abscond when they had been informed that they have to be available for purposes of noting the judgment. It’s being disrepectful. Their default is wilful and contemptuous,” Kwenda fumed.
In his urgent court application, Tshabangu submitted that acceptance of the 23 recalled members’ nomination papers by the Zimbabwe Electoral Commission when they had ceased to be CCC members was unlawful.
Through his lawyer Advocate Lewis Uriri, Tshabangu sought a declaratory order confirming that the acceptance by the nomination court of respondents’ nomination papers was not done in accordance with the law and is of no force.
Consequently, Tshabangu sought an order that their names not appear on the ballot paper.
He also submitted that the matter was urgent since Zec is already in the process of making ballot papers and by-elections will be held imminently.
“Having been recalled by CCC, they cannot come back as CCC.
“They will contend that there are two CCCs with different constitutions. That does not deter us.
“If they contend there is a different CCC, they must prove that it existed before August 23,” said Uriri.
Uriri said the constitution submitted by the ither side was not dated, confirming that it did not exist when elections were held.
“You don’t have two entities called CCC in Parliament.
“We contend there is only one CCC which participated during the elections, recalled the respondents.
“It would be absurd to have a ballot paper that constitutes two parties with same identity. It can’t. You can only have one identity number,” he said.
Uriri also said Justice Munamato Mutevedzi has already made a judgment on similar arguments and that judgment is extant.
Lawyer Tinomuda Chinyoka, representing the Zanu PF member who was challenging Amos Chibaya’s candidacy, said his client is a holder of the right to vote and according to a judicial statement of that right, the process should be within the law.
The matter was heard concurrently with the one filed by Tshabangu since the arguments were similar.
“Candidature of the MP in Mkoba North (Chibaya) was not in accordance with the law,” said Chinyoka.
He said the nomination officer should not have accepted Chibaya’s nomination papers.
“The nomination court sat to choose a candidate to fill a vacant created by Chibaya and when he went back to file his papers the nomination officer should have had doubts regarding his candidature.
“It was not proper for him to go back and say I came back to fill the vacancy I created.
“He was allowed to participate in an election tainted by allowing someone to participate when they had been recalled,” said the lawyer.
Lawyer Charles Kwaramba, representing the respondents, in response argued that the matter was not urgent.
He said Tshabangu knew his applicants had filed nomination papers long back but did not act promptly when the need to do so arose as provided for by the law.
“By its nature an urgent court application is a matter which can’t wait. This application does not have the time factor for urgency,” he said.
He also said no irreparable harm would arise in this situation.
“In the absence of evidence showing irreversible harm, the matter is not urgent.”
“Nothing has stopped the applicant from putting his people for nomination. Tshabangu is not even a candidate and has not even submitted candidates in some constituencies he intends to bar. That is the reason why the application must be removed from the roll for lack of urgency.”
Kwaramba also said there was not going to be a problem if Tshabangu seconds his candidates under the same party because he did the same in August.
Kwaramba also submitted that Tshabangu will not suffer any irreparable harm if his members participate in the by-elections.
He said there is nothing to stop candidates from the same political party from contesting in the elections as the issue of double candidates had happened during the general elections.
However, the judge was not convinced by the arguments of the recalled members.
Kwenda said the narration given by Tshabangu on why he filed his application late was acceptable.
“I don’t see that there was an inordinate delay given the complexity of this matter.”
“It is common cause that the applicants needed to seek legal advice before approaching this case. It is also common cause that there were intervening holidays, the Unit Day and Christmas Day,” said Kwenda.
“The relief the applicants seek is to bar 23 respondents from contesting under CCC during the by-elections.
“They are not being barred from contesting but from participating under the name CCC.
“The issue is therefore very narrow . . . The disputes by respondents are not material to the resolution of the matter before me.”
Kwenda said the argument by Uriri that the respondents’ filing of nomination papers was acceptance that there were vacancies and they had ceased to be members of CCC was logical.
He said there were judgments pronounced confirming this argument before.
“The court abides by its previous decisions. The law requires the High Court to follow its previous pronouncement. This court is however not prohibited to depart from its previous pronouncement.
“In this matter I did not receive arguments to the effect that this case is not different from the previous ones. Ordinarily I would be expected to follow the ruling made in the previous judgements. I’m therefore guided by previous decision.”
Commenting on the issue of identical CCCs being cited as applicant, respondent Kwenda said the CCC should iron its internal issues.
“There are clearly now two factions in CCC but the lawyers just did not bring it out.”
“On the face of it, on documents before me, I see factions. Certain people are not happy about the recall and some are happy.
“I think this issue should be resolved internally. There are issues the party should resolve and that should not concern me.
“Those differences must be resolved,” said Kwenda.
Speaking to journalists after the judgment was handed down, Shava said he was to get instructions from his client on the way forward.
He could not confirm whether the case will be appealed or not as yet. — STAFF WRITER.
