The constitutional court offered Douglas Togarasei Mwonzora a drying machine

By Youngerson Matete 

On May 8, 2023, the constitutional court offered MDC-T leader Senator Douglas T Mwonzora a drying machine by dismissing his application. Mwonzora had, in March, attempted to prolong his unwelcome visit by soaking his clothes after he launched a constitutional court application challenging the Zimbabwe Electoral Commission’s delimitation report. In the application, Senator Mwonzora had prayed that the constitutional court orders the President not to proclaim the dates for the 2023 harmonized elections hence postponing elections. 

The constitutional court ruling 

Yesterday, the Constitutional Court dismissed Mwonzora’s court application with Justice Malaba saying that the application lacks jurisdiction. 

The constitutional court claimed that “no cause of action has been advanced by the application” and dismissed it with no order as to costs. The court also questioned Douglas T Mwonzora’s locus standi and hence dismissed the case on a technical basis rather than on its merits. 

Although I don’t agree with the relief that Senator Mwonzora was seeking, that is, to have elections postponed, I however, and respectfully, disagree with the findings of the court. I agree with the issues that he raised which has to do with the brazenly violation of the constitution by the Zimbabwe Electoral Commission during the delimitation exercise. 

The findings by the constitutional court that Senator Mwonzora has no legitimate interest in constituency and ward boundaries on the basis that his constituency is the whole of Zimbabwe is also grossly wrong. Any president who intends to contest under a political formation that is planning to field both members of parliament and councillors has legitimate interest in drawing of boundaries. If Senator Mwonzora was running as an independent Presidential candidate the arguments of the constitutional court would have made sense. 

The merits of senator Mwonzora’s court application 

Senator Mwonzora in his constitutional court application he raised issues of violation of the constitution by the Zimbabwe Electoral Commission during the delimitation exercise and his desire to participate in free and fair elections. The constitutional court did not apply its mind to the applicant’s concerns. The political gerrymandering and malapportionment of boundaries are a violation of the constitution and the country can not have free and fair elections using boundaries that are political gerrymandered and doesn’t have equality of voting strength.  

The violation of the constitution by the Zimbabwe Electoral Commission 

The Zimbabwe Electoral Commission made brazen and glaring violations of the constitution and the electoral act during redrawing of electoral boundaries. Take for example, the fact that the commission denied all political stakeholders’ access to the voters roll that is auditable and verifiable in terms of section 21(3) of the electoral act and section 62 of the constitution which gives every Zimbabwean access to the voters roll either in electronic or hard copy as per request. The voters roll is the primary informant on delimitation as the process is based primarily on number of registered voters, so to begin with, no one can independently confirm the number of registered voters that the Zimbabwe Electoral commission published hence Senator Mwonzora is right to say that the commission violated the constitution in coming up with the delimitation report.

Furthermore, Section 161 of the Constitution of Zimbabwe, stipulates that when conducting delimitation, the Zimbabwe Electoral Commission must consider the population census. As a matter of fact, the law requires the delimitation exercise to be conducted soon after the population census. The Zimbabwe Electoral Commission didn’t use or consider the population census report as the Zimbabwe national statistics agency didn’t produce the final report. A delimitation process that didn’t consider population census is a violation of Section 161 of the Constitution of Zimbabwe.

Malapportionment of boundaries  

In addition, the Zimbabwe Electoral Commission used a wrong formula in calculating the minimum and maximum number of registered voters in constituencies and wards. The commission misinterpreted Section 161 of the Constitution of Zimbabwe. The commission’s (mis)interpretation was that the constitution says wards or constituencies must be +/-20% of the average number of registered voters; a formula that gives a 40% variation yet the correct interpretation is that the difference between a smaller and bigger constituency or ward must be 20% which is +/-10% of the average number of registered voters to maintain the principle of equality of voting strength. This led to malapportionment of wards and constituencies and a lack of equality of voting strength.

Political gerrymandering of boundaries

The Zimbabwe Electoral Commission during the delimitation processes collapsed and raised several constituencies and wards without a formula or justification. For example, in Harare, despite that there is higher voter registration and population the commission collapsed ward 46 yet there were supposed to increase wards. The commission also increased constituencies in Harare province by a single constituency. If we are to go with what section 161 of the constitution says we should have seen the number of constituencies in Harare province going up to 34 constituencies and 55 wards based on the number of registered voters and population. 

In constituencies such as Zvishavane Ngezi urban wards were being transferred to a rural constituency (Zvishavane Runde) and those from Zvishavane Runde transferred to urban Zvishavane Ngezi. There was no clear formula of why these transfers were being done despite that these two constituencies met the minimum thresholds to be constituencies. These were simply acts of political gerrymandering of boundaries by the Zimbabwe Electoral Commission.

These and many other brazen violations of the constitution and the electoral act by the Zimbabwe Electoral Commission should have been the basis for the constitutional court to hear senator Mwonzora’s application on its merit as it involves the violation of the constitution and the case was of public interest which outweighs any technicalities that senator Mwonzora could have erred in his application. These are some of the reasons why I think that Senator Mwonzora’s court application should have been heard on its merits than on a technical basis. 

Douglas Mwonzora’s evil prayer 

I acknowledge the concerns raised by senator Mwonzora, but I have never agreed with the relief that he was seeking. Senator Mwonzora as one of the framers of the constitution. He was aware that elections can’t be postponed on the basis of a flawed delimitation report. He however went on to seek for the postponement of general elections knowing fully well that it will be unconstitutional to have elections postponed. Senator Mwonzora was trying to ride on a good cause to achieve an evil outcome. 

The relief to postpone elections as sought by senator Mwonzora was not in line with the constitution of Zimbabwe. Senator Mwonzora was aware of this but he used the flawed delimitation exercise to try and prolong his stay in power. The court was correct not to even entertain this kind of prayer from senator Mwonzora.

Conduct and Timing of Elections in Zimbabwe

Chapter 7 of the Constitution of Zimbabwe broadly speaks about the conduct and timing of elections in Zimbabwe. The timing of elections is governed by Section 158 of the constitution of Zimbabwe which clearly stipulates that general elections must be conducted within 30 days before the expiry of the five (5) year term defined in section 143 of the constitution of Zimbabwe. The current term cannot go beyond 26 August 2023. Anything that goes beyond 26th of August 2023 will be illegal and illegitimate and no court can change that as the constitution is very clear that the power to govern is driven from the people and clearly stipulates how people consent to be governed which is by elections whose time frames is clearly outlined by the same constitution. 

Additionally, the delimitation process cannot delay elections in Zimbabwe. Section 161(2) clearly stipulates that if the delimitation exercise is not finished 6 months before the elections. The old boundaries will be applied to conduct the general elections. The constitution does not say that elections will be postponed if delimitation process is not finished in time. If the constitutional court declares the delimitation report null and void which I hoped it should have done, if it had heard the application on its merit. 

The commission violated the constitution during the delimitation process. The constitutional court should have only ordered the commission to use old boundaries for the upcoming harmonized elections. As ZEC can no longer redraw boundaries that will be applicable for the 2023 elections. The court couldn’t however have granted the relief to postpone elections based on Section 161 of the Constitution as it does not guide the timing of elections in Zimbabwe.

In conclusion, Senator Mwonzora’s clock started ticking in 2020 when he took over power through a dubious supreme court ruling when the Court ruled that Nelson Chamisa was not a legitimate President of the MDC-T. The Supreme Court gave Senator Mwonzora temporary wings. He forgot that he can’t fly too far and started abusing his powers recalling elected representatives of the people abusing section 129 k of the Constitution of Zimbabwe.

One would have thought that Senator Mwonzora would have known that he is only but a pawn being used by ZANU-PF to decimate the legitimate challenger of President Emmerson Mnangagwa. The man forgot that he was flying on borrowed wings. Yesterday, the court left senator Mwonzora suspended in the air, he is now headed for crash landing come general elections in a classic case of chickens coming home to roast. 

I however, think that the constitution court should have proceeded to hear the case on its merit to determine if there was a violation of the constitution of Zimbabwe in particular section 161 of the constitution by the Zimbabwe Electoral Commission and whether it affect the credibility of the 2023 harmonized elections. In dismissing the application on technical basis rather than hearing it on its merits, the constitutional court threw away both the baby and dirty water. The Zimbabwe Electoral Commission has gotten away with violation of the constitution, a very bad precedent. 

The decision of the constitutional court also leaves it open to multiple court applications as it didn't rule on the subject matter but simply dismissed it on the basis that senator Mwonzora isn't affected by constituency and ward boundaries as he is a Presidential candidate. The MDC or any other party will find someone who is a member of parliament or Councillor and who intends to contest in the 2023 harmonized elections, to lodge a court application on the same grounds. This has a danger of dragging of election dates pronouncements. The constitutional court should have determined the case and put the matter to bed once and for all.

Youngerson Matete is a pro-democracy and Human Rights activist, a student of Political Science. He is the founder of Project Vote 263, a youth-led initiative to foster inclusive participatory democracy in Zimbabwe. He writes in his own capacity. His views doesn't not represents any organisation.

Cell : +263 773 622 044

Email: youngmatete0@gmail.com/ director@projectvote263.org.zw