This is an application brought in terms of Rule 10(2) of the Constitutional Court Rules 2016 (“the Rules”). The applicant sought leave to be admitted as amicus curiae in the matter of Douglas Togaraseyi Mwonzora and Another v Zimbabwe Electoral Commission and Others, which application was filed under case number ...
This is an application brought in terms of Rule 10(2) of the Constitutional Court Rules 2016 (“the Rules”). The applicant sought leave to be admitted as amicus curiae in the matter of Douglas Togaraseyi Mwonzora and Another v Zimbabwe Electoral Commission and Others, which application was filed under case number CCZ 20/23 (“the main matter”).
After hearing the parties, I issued a judgment ex tempore and admitted the applicant as amicus curiae in the main matter. I indicated that the reasons for my decision would follow in due course.
What follow hereunder constitute those reasons.
FACTUAL BACKGROUND
It is common cause that during the course of the year 2022, the third respondent (Zimbabwe Electoral Commission) undertook a delimitation exercise of the electoral boundaries into which Zimbabwe is to be divided in fulfilment of the provisions of sections 160 and 161 of the Constitution of Zimbabwe (“the Constitution”).
On 20 February 2023, following the observance of the prescribed constitutional processes, a final delimitation report was gazetted by the fourth respondent (President of the Republic of Zimbabwe). The report was published as Statutory Instrument 14 of 2023.
The first and second respondents (Douglas Mwonzora and Movement for Democratic Change-T) alleged, that, the final delimitation report was invalid as it fell short of the requirements of section 161 of the Constitution.
It was their further view, that, should a finding be made that the delimitation exercise was not done in compliance with the constitutional requirements, then, an election held in terms of the boundaries so delimited would be in violation of the right in section 67(1)(a) of the Constitution, which requires elections to be free and fair.
The first and second respondents then filed an application for leave for direct access in this Court under case number CCZ 9/23.
In that application, they indicated, that, should leave for direct access be granted, they would file an application for an order nullifying the gazetting of the final delimitation report and for orders directing the third respondent to redo the delimitation exercise and interdicting the fourth respondent from proclaiming the dates for the holding of general elections until such time as the third respondent would have prepared a delimitation report in compliance with the order that was sought from this Court.
The application for leave for direct access was heard by a three-member panel of this Court and leave was granted on 6 April 2023.
On 13 April 2023, the first and second respondents duly filed an application in this Court under case number CCZ 20/23 headed “COURT APPLICATION FOR A DECLARATUR AND CONSEQUENTIAL RELIEF.” Therein, the first and second respondents sought the following relief:
“IT BE AND IS HEREBY ORDERED THAT:
1. It is hereby declared that the final delimitation report prepared by the first respondent and gazetted by second respondent in the government gazette on 20 February 2023, as statutory instrument 14 of 2023, Proclamation 1 of 2023 is invalid for not being in compliance with section 161 of the Constitution and accordingly is in contravention of applicants right to free and fair elections in terms of section 67(1)(a) of the Constitution of Zimbabwe.
2. The gazetting of the final delimitation report prepared by the first respondent on 20 February 2023, as statutory instrument 14 of 2023, Proclamation 1 of 2023 is hereby declared invalid for not being in full compliance with sections 161(11) and (12) of the Constitution of Zimbabwe and accordingly is in contravention of applicants rights to free and fair elections in terms of section 67(1)(a) of the Constitution of Zimbabwe.
CONSEQUENTLY,
IT BE AND IS HEREBY ORDERED THAT:
3. First respondent be and is hereby ordered to redo the delimitation exercise and prepare a delimitation report that fully complies with the requirements of section 161 of the Constitution of Zimbabwe, and which takes into account the census final report.
4. Second respondent shall not proclaim the dates of general elections before the first respondent has prepared a delimitation report in compliance with the terms of the order in paragraph 3 above.
5. The respondents shall pay the costs of this application.”
The applicant alleges, that, he got to know from reports in the press that the first and second respondents had been granted direct access and that the main matter was set down for hearing on 8 May 2023.
On 3 May 2023, he filed this application for his admission as amicus curiae.
He had, at the time of filing the application, accessed the application and opposing papers in the main matter and thus had an adequate opportunity to consider the case made by the first and second respondents in response to the application.
The applicant deposed to a founding affidavit in which he gave details of his expertise, the nature of his interest in the main matter, the position he intended to adopt in the main matter, and the submissions he intended to advance.
In the founding affidavit, the applicant explained his understanding of the application in the main matter and the import of the relief sought. He averred, that, he intended to submit that the holding of general elections in Zimbabwe in 2023 and upon the expiration of the five-year term reckoned from the date of the swearing-in of the President on 26 August 2018 is a constitutional imperative which may not be dispensed with.
In other words, he sought to focus on the question of whether the Constitutional Court could be requested to make an order that would effectively amend the Constitution by prolonging the life of local authorities, Parliament, and the Presidency beyond the five-year term envisaged in section 158 of the Constitution.
In his view, an order prohibiting the proclamation of election dates, as had been sought by the first and second respondents, would be constitutionally repugnant.
He added, that, the submissions he sought to make had not been covered by any of the parties in the main matter.
It was common cause, that, at the time this application for admission as amicus curiae was filed, the heads of argument had already been filed in the main matter, and that the matter, as has already been observed, had been set down for hearing by this Court on Monday 8 May 2023.
When the application was placed before me, I issued directions for the parties to urgently appear and address me on their positions regarding the application.
SUBMISSIONS BY THE PARTIES
Counsel for the parties duly appeared and made submissions on the application. I proceed to summarize the respective positions of the parties.
Counsel for the applicant submitted, that, the applicant had the onus of proving the considerations set out in Rule 10(3)(a)–(d) of the Constitutional Court Rules.
In this regard, she argued that the applicant was interested in the proceedings, that he was a registered voter, that he was qualified to appear as amicus, and that he specialises in Constitutional Law and Electoral Law. The applicant was credited with fifteen years of continuous legal practice. Counsel for the applicant also adverted to the applicant's experience and the activities he has undertaken which she submitted as having a bearing on this application.
Counsel submitted, that, the applicant intended to focus on the question of whether the Constitutional Court can be requested to make an order effectively amending the Constitution by prolonging the life of local authorities, of Senate, Parliament, and the Presidency. In this regard, she stated that the applicant would focus primarily on the import of section 158 as read with sections 143 and 157 of the Constitution.
Counsel for the applicant stressed, that, the applicant would make additional and distinct submissions on the issues. In her view, the admission of the applicant as the amicus curiae would be an expression of a good constitutional culture.
On behalf of the first and second respondents, counsel submitted, that, although the applicant was well qualified in other respects, he was not qualified to be amicus curiae in the present matter.
In his view, the issue that he sought to argue, relating to the interpretation of sections 144 and 158 of the Constitution, was not one in respect of which the court required assistance.
Counsel for the first and second respondents added, that, the applicant, being an interested party, was disqualified from appearing as amicus curiae and should, in the first instance, have sought to be joined as a party instead.
He argued, that, an amicus was required by law to be dispassionate which the applicant could not claim to be.
Reliance was placed on the decision of the Constitutional Court of South Africa in In Re: Certain Amicus Curiae Applications relating to Minister of Health and Others v Treatment Action Campaign and Others [2002] ZACC 13 for the proposition, that, the role of an amicus is simply to draw the attention of the court to relevant matters of law and fact, to which attention would not otherwise be drawn.
Counsel for the first and second respondents reiterated, that, an amicus curiae exists to assist the court.
Accordingly, he contended that the applicant could not add any new matter as the parties had already canvassed, in great detail, those legal questions intended to address in the application under CCZ 20/23.
The issues he sought to address were said to have been discussed in several paragraphs of the heads of argument filed by the third respondent in the main application. He was of the firm view, that, the applicant would not add any value to the court's determination.
Both counsel for the third respondent (Zimbabwe Electoral Commission) and counsel for the fourth and fifth respondents (President of the Republic of Zimbabwe and Minister of Justice, Legal and Parliamentary Affairs) respectively, indicated that their clients would abide by the decision of the court....,.
I considered that this was a matter which is of public interest.
No doubt, the question of whether the delimitation was properly carried out and whether the proclamation of election dates may thereby be affected are issues in the public interest....,.
There is no doubt that the dispute before the court was one of public interest and importance. Its disposition had a bearing on the conduct of general elections in this country.
