IN a move which threatens general elections likely in August, the Constitutional Court on Thursday granted an urgent chamber application by MDC-T president Douglas Mwonzora who was seeking leave for direct access to the apex court to challenge the Zimbabwe Electoral Commission (Zec) delimitation report.
RUVIMBO MUCHENJE
A three-judge bench chaired by Justice Paddington Garwe ruled that his delimitation challenge has merit and must therefore be heard by a full bench.
The development threatens the elections due in August.
“It is in the overall interest of justice that direct access be granted to allow the matter to be argued before a full bench. It is hereby ordered that the application for direct access is granted.
“Applicant shall file the substantive submissions within three days of the granting of this order and the matter shall proceed according to the rules of this court,” said Garwe in a brief judgement after hearing lengthy arguments which took all day.
Mwonzora is seeking nullification of the Zec delimitation report on grounds that electoral commission did not comply with the law by relying on a preliminary census report by the Zimbabwe National Statistics Agency (ZimStat).
Mwonzora recently filed a High Court application seeking to have his challenge heard in the upper court complaining that the report was marred with irregularities.
He cited Zec together with President Emmerson Mnangagwa, Justice minister Ziyambi Ziyambi and Attorney-General Prince Machaya as respondents. He said the recently delimitation report gazetted by the President is null and void as it is in breach of the constitution.
“Applicants seek leave for direct access to the constitutional court in an application they seek a declaratur to declare the delimitation report prepared by first respondent and gazetted by second respondent on 20 February 2023, null and void on grounds that it does not comply with the requirements of section 161 of the Constitution of Zimbabwe.”
He wants consequntal relief that Zec conducts a “proper delimitation exercise and produce a delimitation report that conforms to the requirements of section 161 of the Constitution of Zimbabwe.”
“We seek a declaratur declaring the delimitation report prepared by first respondent (Zec) and gazetted by second respondent (Mnangagwa) on February 20 null and void for not being in accordance with provisions of section 161 of the Constitution of Zimbabwe,” reads court papers.
“Applicant also seeks an order for consequential relief in the form of a mandamus (a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty) directing the first respondent to conduct a fresh exercise of delimitation in compliance with the dictates and requirements of section 161 of the Constitution of Zimbabwe, and in particular to base the report on a final population census report.
“Applicants further seek consequential relief directing second respondent not to proclaim elections before the first respondent has prepared a delimitation report that is in compliance with section 161 of the constitution of Zimbabwe.”
Mnangagwa gazetted the constituency delimitation report setting the stage for crunch elections to be conducted later this year.
This was however surrounded by so much controversy amid reports that he was not impressed with the electoral boundaries and there was tension between him and Zec bosses.
The report also received wide criticism, with some reports claiming that some coordinates used by Zec in the final report are from Antarctica, Zambia and South Africa among other countries.
A Zanu PF activist also filed a Constitutional Court application earlier this year challenging the report.
Elections are expected in August this year, but the actual date is yet to be announced.
Mwonzora feels that under the current circumstances, the elections will not be free and fair.
Mnangagwa last week hinted that general elections would be held in August, but Mwonzora argues that the country cannot have a free and fair election with a contested delimitation report.
“Once it is held not to have been complied with the constitutional requirement, the other matter is whether if the delimitation report is invalid, and election that depends on it can be held and if an election is held, it will meet the standard of freeness and fairness and universal adult suffrage and equality of votes contemplated in section 155,” reads his application.
In Thursday’s proceedings, Mwonzora was represented by his attorney Trust Maanda while Zec was represented by Tawanda Kanengoni.
Maanda said it would be fair for his client who intends to contest in the upcoming General elections if the report is reversed.
“He is a senator in the Parliament of Zimbabwe. In terms of the law, elections must be free and fair. In terms of section 155 which talks about the principles, the political rights are also safeguarded.
“The contention is that the delimitation report is an essential element of achieving free and fair elections. The position of the applicant that unless the delimitation report is in terms of the constitution, it is unconstitutional,” said Maanda.
On the other hand, Kanengoni urged the court not to entertain Mwonzora, arguing that re-doing the exercise would be a waste of resources.
Kanengoni also submitted that Mwonzora’s application was vague since he failed to highlight which constitutional rights were violated.
