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.
