THE Supreme Court has dismissed an appeal by Harare North lawmaker Allan Markham who is seeking an auditable voters’ roll ahead of the 23 August general elections. The court said his appeal was defective.
NATHAN GUMA
The Harare North opposition lawmaker filed his appeal using a transcribed record instead of written reasons by the High Court.
A Supreme Court bench chaired by Justice Chinembiri Bhunu said given that there was no an application before the court, the bench dismissed the appeal. Trust Manjengwa was representing Markham while Tawanda Kanengoni was representing the Zimbabwe Electoral Commission (Zec).
“At the commencement of the appeal hearing, Mr Kanengoni raised a point in limine objecting to the judgement of the court a quo . . . that the transcript is unnumbered and unsigned,several portions are incoherent and incomplete. “Mr Manjengwa said the judgement was authenticated by an affidavit of the registrar of the High Court.
Due to the several inadequacies pronunced out . . . this court cannot proceed with this matter. There not being a proper appeal before us, it is ordered that this matter is dismissed,” ruled the bench.
During the hearing, Kanengoni had submitted that there were too many inconsistencies in the record used by Markham such that the court could not rely on it. “In that document, there is no judgement number at page 117, if you go down to page 118, the last paragraph appears therein the elapses that shows that there is information missing from the transcription of the judgement.
“Page 123 of the record, the first paragraph again contains the same indication that there is information missing. “
The following page 124, in the last paragraph, contains the same. The end of that document under the designation of the presiding judge a quo where he was supposed to append his signature, there is no signature attached. “The point we make is that the grounds of appeal directly speak to those reasons…
“The court is unaware of how much info is missing from that document. If you take the omission that appears in page 124, it makes reference to a doctrine that was relied upon by the court a quo.”
“That being the case, we would ask that this appeal is not yet properly before the court for argument and the court cannot properly engage with it based on the extempo judgement on the court a quo.”
Manjengwa insisted that the record was compiled according to the court’s rules. Justice Lavender Makoni asked her to confirm that the record was not numbered and some parts are not coherent.
“And you expect us to sit and determine this matter.What is being appealed against is the order,” she queried. Bhunu also said the standard procedure is that a judge who gives an extempore judgement, then whoever whats to appeal can request a written judgement.
Manjengwa said he cannot speak on the standard procedure.
“How do we know that this is the judgement of the court a quo when it is a transcript of the court?”
Markham made an appeal after his request for the release of the Zec electronic voters’ roll was blocked by the High Court.
High Court Justice Never Katiyo blocked the release of the electronic voters’ roll, citing security reasons. Critics claimed that this reflects lack of democracy in Zimbabwe as the 23 August elections draw closer.
Katiyo ruled that the voters’ roll is a sensitive document which should not be dished out carelessly. Markham had sued Zec after it refused to give him an electronic copy of the vote register which he wanted to use in scrutinising the trends in the delimitation report which was recently gazetted.
Markham mounted the lawsuit last year after having written to Zec, giving it an ultimatum to release the report within seven days.
His letter was not responded to, prompting court action. Katiyo ruled that Markham had failed to justify why he needed the document, adding that he could pursue other remedies.
The judge also ruled that it was in the best interests of justice if Zec remains the custodian of the document as it is prone to manipulation if it finds its way into the public.
In his appeal, Markham wanted the court to declare that Zec is obliged to provide him with the voters’ roll in the form requested. He also wanted the court to declare that Zec’s refusal or failure to furnish him with a copy of the national voters’ roll in electronic form is unlawful.
He submitted that the lower court had erred in finding that his application was premature when Zec had refused to provide the voters’ roll in electronic form as per his request and failed to indicate when it was going to do so.
“The court a quo grossly misdirected itself in holding that the matter was prematurely before the court, when the respondent had refused to provide the voters’ roll in electronic form as per the appellant’s request and failed to indicate when it was going to do so.
“The court a quo erred in holding that the appellant had alternative remedies to pursue in order to get the voters’ roll in electronic form when the Electoral Act (Chapter 2:15) provides no such other remedies.
“The court a quo erred in failing to find that the respondent’s failure to provide a time period within which it was going to provide appellant with the voters’ roll in electronic form amounted to a refusal to provide the voters’ roll in violation of section 21 (3) of the Electoral Act Chapter 2:15.
“The court a quo misinterpreted Section 21 (7) of the Electoral Act [Chapter 2:15] to be applicable, so as to allow respondent to indefinitely withhold the provision, to the appellant, of the voters’ roll in electronic form,” reads part of his appeal.
Markham said the High Court also erred in considering the irrelevant evidence of Team Pachedu. He argued that the refusal by Zec to give him the roll was in contravention of the Electoral Act.
Markham said the electoral commission has an obligation to release the voters’ roll, adding it is his right not only as a legislator but also as a voter to have access to the roll. In his founding affidavit, Markham told the court that he had received an electronic copy of the voters’ roll prepared by the commission before the by-elections that took place in March 2022.
When he analysed the copy, he realised that there were several anomalies, prompting him to write to Zec drawing its attention to the problem.
The commission had then advised him that it was in the process of formatting the system and producing an updated version.
