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Mashudu Netsianda, [email protected]

THE High Court yesterday nullified the nomination of the recalled Citizens’ Coalition for Change (CCC) members as candidates in tomorrow’s by-elections.

The party’s interim secretary general Mr Sengezo Tshabangu recalled 14 MPs and eight Senators in October saying they had ceased to be CCC members. 

Mr Tshabangu argued that the recalled MPs and councillors were imposed on the people in the run-up to the August 23 harmonised elections and it was time to return the opposition outfit to constitutionalism.

The recalled legislators last month took Mr Tshabangu to court challenging their recall and the High Court dismissed their case.

Yesterday’s ruling by Harare High Court judge Justice Never Katiyo follows an urgent chamber application by Mr Tshabangu through his lawyer Advocate Lewis Uriri instructed by Ncube Attorneys.

Mr Tshabangu sought an order disqualifying recalled CCC MPs and Senators from contesting in the by elections.

After being recalled by Mr Tshabangu, the MPs filed two appeals at the High Court and the Supreme Court, which they lost.

Thereafter they successfully filed their nomination papers to contest in the Saturday by-elections under CCC which prompted Mr Tshabangu to approach the High Court challenging the Zimbabwe Electoral Commission (ZEC)’s decision to accept their names. 

In papers before the court, the 22 recalled legislators: Prince Sibanda, Bright Moyo, Veliswe Nkomo, Jasmine Toffa, Stabile Mlilo, Pashor Raphael Sibanda, Nicola Jane Watson, Ereck Gono, Evidence Sunungurai Zana, Morgan Ncube, Obert Manduna, Janeth Dube, Desmond Makaza, Gideon Shoko, Tendai Sibanda, Anastasia Moyo, Joel Gabuzza, David Chimhini, Siphiwe Ncube, Felix Sibanda, Helen Zivira and Mativenga Madzikana, ZEC, CCC and Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi were cited as respondents.

Justice Katiyo ruled that the 22 recalled legislators were not CCC candidates for election in Saturday’s by-elections. 

“It is ordered that the decision of the Nomination Court sitting at Harare, Bulawayo, Gwanda, Lupane and/or any other location around the country on 7 November 2023 to accept the nomination papers and candidature of first to 22nd respondents for election in the by-elections set to be conducted on 9 December 2023 is unlawful, of no force and effect and hereby set aside,” ruled Justice Katiyo. 

He said the 22 respondents were not candidates for election in the by-elections scheduled to be conducted tomorrow.

Justice Katiyo ordered ZEC and Minister Ziyambi not to include the names of the recalled MPs and Senators on the ballot papers to be used in the by- elections.

He also interdicted the recalled legislators from representing or holding themselves out to the general public and electorate in the constituencies concerned or any other place in Zimbabwe, whether physically or through any form of media as candidates for election in by-elections.

“The first to 22 respondents and 25th respondent (CCC) shall jointly and severally pay the applicants’ cost on the ordinary scale,” ruled Justice Katiyo.

Mr Tshabangu, through his lawyer, Adv Uriri, argued that the 14 MPs and eight Senators should not contest under the name of a party from which they were recalled. 

“The respondents were recalled and as a result by-elections were called for. We submit that ZEC should not have accepted nomination papers of recalled members without confirmation of their restoration to the party,” Adv Uriri argued. 

The 22 recalled legislators, through their lawyer, Alec Muchadehama, argued that the High Court had no jurisdiction to hear the case.

“In our papers, we raise several preliminary issues and we still stand by them. This court has no jurisdiction to entertain this matter. It is an electoral matter which ought to have been filed in the Electoral Court,” argued Mr Muchadehama.

He further argued that Mr Tshabangu’s request has been overtaken by events since ballot papers had already been printed and sent to constituencies.

“All systems are now in place for the election to be held. To take submissions already overtaken by events will be pointless,” argued Mr Muchadehama. 

Tomorrow’s by-elections will be held in nine constituencies that fell vacant following the recalling — by their party — of CCC legislators in terms of a proclamation by President Mnangagwa in October. 

The nine vacant constituencies include Beitbridge West, Binga North, Bulawayo South, Cowdray Park, Lobengula-Magwegwe, Lupane East, Mabvuku-Tafara, Mpopoma-Mzilikazi and Nketa.

The President is obliged to call for by-elections in terms of the Electoral Act once vacancies arise.

Meanwhile, Mr Tshabangu’s lawyer, Mr Nqobani Sithole said the declaratory order granted in favour of his client effectively means that all the recalled CCC members who successfully filed their nomination papers will not participate in tomorrow’s by-elections.

“The candidates who are said to have been seconded by CCC leader Nelson Chamisa will be removed from the ballot papers and are barred from contesting in the by-election. The respondents can exercise their right of appeal to the Supreme Court against the decision of the High Court,” he said.