The Election Resource Centre (ERC) notes with concern the decision taken by President E.D. Mnangagwa and the Zimbabwe Electoral Commission (ZEC) to reopen the nomination court for six constituencies without seeking judicial guidance on the legality of the proclamation and nomination court sitting taking into account the legal uncertainty brought about by SI 2 of 2022, and two contradictory orders by the High Court on the same case involving the same parties and same issues within a 24 hour period. High Court judge Justice Chitapi (HCH 106/22) issued a court order supported by a written judgment with full reasons as to why there were no vacancies in the said constituencies. This resulted in ZEC correctly complying with the court order and disestablishing the nomination courts for those constituencies.
In an unprecedented move Justice Never Katiyo of the same Court issued an order that is not supported by a written judgment effectively overturning the order by Justice Chitapi who is more senior to him without having heard all parties to the electoral dispute. The subsequent order by Justice Katiyo raises important questions of whether the High Court can overturn its own decision or rather aggrieved parties should have appealed to a Superior Court to avoid significant confusion in the electoral process compounded by the subsequent gazetting of SI 16A of 2022.
The proclamation and reopening of the nomination court coming in the midst of legal uncertainty brought about by the judgment of Justice Chitapi and an unclear contradictory order by Justice Katiyo in the High Court is very unfortunate and raises more questions than answers about the efficacy and propriety of the current election dispute resolution mechanisms especially by the judiciary. The decision taken by the President and the Commission following the contradictory court orders undermines the credibility and integrity of the judiciary and election dispute resolution mechanisms; potentially subverts the constitutional rights of citizens and has also the potential to unravel the rules and principles aimed at guiding Zimbabwe’s democracy, especially the principle that elections should be guided by procedural certainty and outcome uncertainty.
The ERC calls on the Commission to approach the Constitutional Court for an immediate advisory opinion on the legality of the proclamation and the subsequent sitting of the nomination court held on 28 January 2022 given its potential to undermine the sacred centrality of the rights of the electorate in representative democracy.
Source: Election Resource Centre