Supreme Court rules that electoral court improperly constituted

By Lance Guma

27 July 2006

The appointment of judges to the electoral court by the Chief Justice Godfrey Chidyausiku last year has been struck down as null and void. In a landmark ruling this week, Supreme Court justices, Maphios Cheda, Luke Malaba, Wilson Sandura, Sandra Elizabeth Gwaunza and Vernanda Ziyambi unanimously agreed that the appointments were inconsistent with the country’s constitution. The latest development means all the decisions made by that court no longer stand and that section 162(1) of the Electoral Act, which empowered the Chief Justice to appoint judges to this special Court has also been struck down.

The Electoral Court was set up to hear election petitions and give remedy to aggrieved parties in any election. The MDC filed 16 test cases soon after the March 2005 parliamentary elections and chief amongst them concerned the disqualification of former Chimanimani MP Roy Bennett from standing in the poll. At the time of filing the petitions the MDC then decided to challenge the appointment of judges by the Chief Justice and subsequently applied for the withdrawal of their petitions pending a ruling by the Supreme Court on the matter. The Electoral Court declined to accept the withdrawals and went on to rule in some of the cases.

Although Chidyausiku accepted the illegality of his appointments, he attempted to save face by reversing them and then reinstating the same judges in the same letter. The Supreme Court has however maintained that both the first and second appointments remain illegal. Under the country’s constitution the President appoints judges in consultation with the Judicial Services Commission and this requirement is mandatory. The Deputy Secretary for Legal Affairs in the Tsvangirai MDC, Jessie Majome welcomed the decision saying it vindicated their earlier position on the matter. She said what it meant was that all 16-election petitions were now open and need resolving.

Majome also said Zanu PF had subverted the electoral process relying on violence, torture, intimidation and outright cheating. ‘We live in such an absurd legal environment that we have people completing their tenure in parliament when that same tenure has been challenged successfully in court,’ she added. The MDC will soon decide how to proceed in some of the cases it brought to the courts including Bennett’s disqualification from defending his Chimanimani seat.