Heavy-handed judiciary could make Zimbabwe’s elections a non-event

30 Jul 2023

As the final arbiter on the integrity of national elections, the judiciary sometimes finds itself having to make judgments on close races and in politically charged environments. This has resulted in closer public scrutiny of the judiciary in its role in resolving election disputes. Zimbabwe is no exception.

There has been considerable controversy over the many legal challenges that have been filed ahead of Zimbabwe’s elections on 23 August and the judgments that have come out of Zimbabwe’s superior courts (high court and supreme court).

After the nomination process was concluded on 21 June, significant court cases were filed with superior courts by people affiliated with Zanu-PF that challenged the validity of the nominations of opposition candidates.

The main ones were the challenge brought against exiled presidential candidate Saviour Kasukuwere’s nomination because he had not resided 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 had been accepted after the nomination deadline had passed.

Read more in Daily Maverick: Zimbabwean high court bars 12 opposition parliamentary candidates from contesting 23 August elections

The superior courts (high court and supreme court) agreed with the challenges and nullified the nominations of the 12 CCC MP candidates and that of Kasukuwere. This means that the 12 CCC MP candidates and Kasukuwere will not have their names on the ballot paper on election day.

Read more in Daily Maverick: It’s now Mnangagwa vs Chamisa after Zim court tosses Mugabe ally Kasukuwere’s bid to stay in presidential race

In considering these cases, a starting point for judges must be to understand that the right to deploy public officials during elections belongs to the voters and not the courts. As the AU 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 a court needs to be pro-voter and not create the perception that after elections it will be candidates favoured by the courts who are in office and not those chosen by voters. The public must never be left with a perception that the courts have substituted themselves for the electorate.

Yet, courts only handle cases that are brought before them as they cannot initiate proceedings. Everyone, including Zanu-PF supporters, has 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. Procedural certainty means that before elections, everyone must know what the rules are and what it means not to comply with them. Outcome uncertainty means that the results of elections are not predetermined, and are known only after the ballots have been counted.

To this end, the nomination rules are expected to be applied justly and fairly and without fear or favour.

Parties have to comply with the law and have primarily themselves to blame for ineptitude and failure to comply with nomination requirements.

Zimbabwe Electoral Commission

However, the question of whether timelines were met is a question of fact and not law. In this respect, a court would be expected to give deference to the Zimbabwe Electoral Commission (ZEC)’s interpretation of what happened. If there is a dispute of fact, the benefit of the doubt should be given to the ZEC as the administrative organ.

This approach strengthens the ZEC as the election management body rather than undermining it and creating a perception of the ZEC being subordinate to the courts when it comes to the administration of elections.

In simple terms, the courts must never be seen as the ultimate elections administration body as this runs the risk of politicising the courts and undermining the public perception of the independence of the courts. The ZEC must remain the sole election management body in the eyes of the public. Should it not be seen that way, that in itself becomes a threat to the rule of law.

On matters of administrative discretion in conducting electoral processes, the court would be expected to defer to the ZEC. A court cannot substitute its own discretion unless the use of administrative discretion by the ZEC is so unreasonable as to induce a sense of shock and outrage.

In other words, even if a judge feels that s/he could have used her or his discretion differently from what the ZEC official did at the nomination court, that is insufficient legal grounds to overturn the decision of the nomination court.

Any judicial decision has to be cognisant of the settled principle that an election has to offer real choices for the voters.

An election without choices is not an election. The law is clear that “the will of the people shall be the basis of the authority of government”. The will of the people is “expressed in periodic and genuine elections which shall be by universal and equal suffrage… by secret vote”.

When an election leaves voters with no choices because of judicial intervention, the public has a strong sense of being robbed of their fundamental rights.

This leaves us with the question: To what extent can administrative or logistical errors or the ineptitude of a party administration that is in substantial compliance with the nomination process be a basis to disqualify a candidate and deprive voters of their right to choose their leaders?

Can it be an election without choices?

With the increasing role the judiciary is being called upon to play in adjudicating election and electoral disputes, could the courts intentionally work towards jurisprudence that increases electoral fairness and justice and not be overly technical to the point of taking away voters’ rights to genuinely express their will in elections?

In other words, is it possible to deliver a judgment that punishes the incompetent party administrator without eroding the right of the electorate that comes once every five years to vote and deploy a leader of their choice into public office?

Unfortunately, the judicial decisions of superior courts in Zimbabwe have made the most anticipated elections in the 43 years of Zimbabwe’s independence a potential non-event. DM

Arnold Tsunga is a human rights lawyer and the principal managing partner at Tsunga Law International and Convenor of Civic Space Network in Africa.

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Zimbabwe Electoral Commission