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Mashudu Netsianda, [email protected]

THE High Court yesterday nullified the National Assembly candidature of 18 members of various political parties who filed their nomination papers outside the timeframes when the Nomination Court sat last month.

The ruling by Bulawayo High Court judge Justice Bongani Ndlovu automatically sets aside the nomination of 12 Citizens Coalition for Change (CCC) members, two independent candidates and three others from Zapu, Free Zim Congress and the Zimbabwe African National Congress (ZANC).

The Nomination Court sat on June 21 to accept papers from the aspiring candidates. Zimbabwe Electoral Commission (ZEC) sat the next day to accommodate the 18 aspiring candidates who had failed to file their papers on time.

Justice Ndlovu’s judgment effectively means that the opposition candidates will no longer participate in the August 23 polls. The candidates who were disqualified are: Obert Manduna, Ereck Gono, Douglas Ncube, Gift Ostallos Siziva, Sanpoulus Maplanka, Prince Ncube, Nqobizitha Ndlovu, Desmond Makaza, Bajila Collins Descent, Sichelesile Mhlanga, Desire Moyo, Adelaide Mhlanga, Nompilo Bhebhe, Surrender Kapoikilu, Raphael Pashor Sibanda, Ntandoyenkosi Minenhle Gumede, Jane Nicola Watson and Frank Mhlanga.

Inevitably, Zanu-PF now has three seats where it is uncontested. In Cowdray Park, Finance  and Economic Development Minister Professor Mthuli Ncube, who was set to face the CCC’s Sibanda will now be elected unopposed.

Other seats where Zanu PF would win unopposed are Bulawayo Central where Cde Tendai Charuka was to battle it out with CCC’s Kapoikilu and Bulawayo South where sitting Zanu PF MP Cde Raj Modi was only being challenged by CCC’s Jane Nicola Watson after Admore Gomba of the Democratic Official Party (DOP) withdrew his candidature last week and joined the ruling party.

Justice Ndlovu also ruled that the decision by ZEC to accept  the nomination papers filed after 4pm is null and void.
“It is declared that the decision of the first respondent (ZEC), sitting as a Nomination Court at Bulawayo on 21 and 22 June 2023 to accept the respondents’ nomination papers and candidature in the elections scheduled for 23 August 2023 is declared null and void and is hereby set aside,” ruled Justice Ndlovu.

However, the judge ruled in favour of Zvikwete Innocent Mbano, ZANC candidate, who was also cited as a respondent in the application filed by 12 registered voters in Bulawayo.

“The application succeeds against all the nominated candidates who are still respondents  in this matter except Zvikwete Innocent Mbano under HC1362/23,” ruled Justice Ndlovu.

“The case of Innocent Mbano is different from the rest as he submitted the papers earlier than 4pm, but they had anomalies. Mbano was told by ZEC officials to go and rectify and he returned after 4pm hence he was clearly covered by the provision.”

ZEC, which had since published the final list of candidates participating in the harmonised elections, was also ordered not to include the names of the aspiring candidates in the ballot papers.

Justice Ndlovu said ZEC violated the provisions of the Electoral Act by not closing the court until midnight when they adjourned to the following day.

“Accordingly, ZEC is prohibited from including the names of the respondents in the preparation of ballot papers to be used in the August 23 general elections. Respondents shall jointly and severally pay the costs of suit,” said Justice Ndlovu.

“From the evidence available which is the Bulawayo provincial elections officer (Mr Innocent Ncube)’s affidavit, he says that he only interacted with respondents when they submitted their papers. I come to the conclusion that respondents except one, submitted their nomination papers in violation of the law.”

Twelve consolidated urgent chamber applications for declaratory order were recently filed at the Bulawayo High Court by 12 registered voters in Bulawayo through their lawyers Cheda and Cheda Associates.

They were challenging ZEC’s decision to accept the nomination papers from the opposition party candidates after the deadline.

The applicants also sought an order disqualifying the aspiring MPs for filing their nomination papers after the 4pm deadline.

One of the applicants, Ms Rachel Dube, a registered voter in Mpopoma/Mzilikazi constituency filed the application at the Bulawayo High Court under case number HC 1362/23.

In papers before the court she cited ZEC, its chairperson Justice Priscilla Chigumba, the Bulawayo provincial elections officer Mr Innocent Ncube, Makaza (CCC candidate), Mbano (ZANC) and Strike Mkandla (independent candidate).

The application against Mkandla, Nigel Ndlovu, Admore Gomba, Soneni Moyo, Dingilizwe Tshuma and Albert Mhlanga was later withdrawn before the court.

In her founding affidavit, Ms Dube argued that ZEC’s decision to accept the nomination papers from the cited candidates was an illegality which should be declared null and void.

She said while prospective election participants were all accorded ample time to file their nomination papers, regrettably, for some of the political outfits, this turned out not to be the case.

Ms Dube argued that despite the Nomination Court properly commencing at 10AM on June 21, 2023, the nomination papers in relation to the third, fourth and fifth respondents were in disarray.

She argued that the steps taken by the provincial elections officer were solely aimed at accommodating Makaza, Mbano and Mkandla and their colleagues from the same political parties in other constituencies in Bulawayo.

Ms Dube said in terms of Section 46(7) and (8) of the Electoral Act, the provincial elections officer erred by accepting the candidature of Makaza, Mbano and Mkandla after the deadline.

She said there was no factual or legal basis for Makaza, Mbano and Mkandla to be permitted to submit their nomination papers after 4pm when the cut-off time had undeniably lapsed.

“In conclusion I aver that this court application is urgent and pray that this Honourable Court intervenes in order to uphold the dictates of the law,” argued Ms Dube.

The opposition parties’ candidates were represented by different lawyers and these included Professor Welshman Ncube, Advocate Thabani Mpofu, Moses Mahlangu and Brian Robi while ZEC was represented by Mr Tawanda Kanengoni.

Adv Thembinkosi Magwaliba who was instructed by the applicants’ lawyers, argued that his clients have established a case against the respondents.

He said the fact that the respondents were not in the courtroom of the Nomination Court after 4pm, is an illegality hence their nomination as candidates in the harmonised elections ought to be nullified.

“The papers for the respondents were accepted outside the courtroom well after the 4pm deadline, which is an illegality and a violation of Section 46 of the Electoral Act. From the evidence of the respondents, the affected candidates were not in the courtroom,” said Adv Magwaliba.

“ZEC committed acts which are grossly flawed and not provided for in the law by directing a police officer to collect nomination papers of respondents who were outside the courtroom.”

Adv Magwaliba said the Nomination Court sat deep into the night to accept the papers of the respondents despite having announced that it would not accept nomination papers after 4pm.

“The candidates who were unlawfully listed by ZEC must not contest in the elections and the court must declare it a nullity,” he argued.

Mr Kanengoni said no nomination papers were submitted after 4pm and challenged applicants to support their assertion.
“The facts stated by applicants are only known by those who were in the court of which they (applicants) were not there. No nomination papers were submitted after the cut-off time, and the crux of the matter by applicants to allege that ZEC officials accepted papers after 4pm is not true,” he said.

“In fact, the applicants relied on third parties on what transpired at the Nomination Court since they were not there. ZEC officials have experience and are trained to conduct electoral processes.”

Mr Kanengoni said since the applicants are saying the entire process was flawed and chaotic, the declaratory order to nullify the nomination of respondents should also be extended to other candidates whose nomination is not being challenged.

Prof Ncube who was representing some of the seven CCC candidates, argued that the assertion by applicants that the nomination papers were collected from respondents unlawfully is baseless.

“There must be evidence that respondents’ papers were among the 40 papers collected from outside the court. Contrary to the applicant’s submissions, the respondents didn’t submit their papers after 4pm,” he said.

Prof Ncube said the applicants relied on speculative evidence as they were nowhere near the court.
“The law is very clear that no papers can be lodged after 4pm. However, if there is a query, the papers can be submitted after the cut-off time, and there is nothing to suggest that respondents violated the provisions of the Electoral Act,” he said.

Outgoing MP for Nkulumane and lawyer, Mr Kucaca Phulu said the ruling by Justice Ndlovu also means that CCC, will no longer have any senatorial and proportional representation seats in Bulawayo province, including the youth and women’s quota seats in the National Assembly.

“The judgment basically means that all CCC candidates will no longer contest in 12 constituencies in Bulawayo because they filed their nomination papers outside the timeframe,” he said.

“The party will also not have senators and proportional representation seats in Bulawayo because they are calculated based on the party’s performance in the Parliamentary elections. So, clearly Zanu-PF will have a clean sweep in the coming elections.”