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Court Judgement No SC 28/10 - Election of Speaker of Parliament
Court of Zimbabwe
March 10, 2011
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No. S.C. 28/10
Civil Appeal No. 62/10
Jonathan Nathaniel Moyo (2) Moses Mzila Ndlovu (3) Patrick Dube
(4) Siyabonga Ncube v (1) Austin Zvomano, Clerk of Parliament (2)
Chidyausiku CJ, Malaba DJC, Sandura JA, Ziyambi JA & Garwe JA
Harare September 21, 2010 & March 10, 2011
for the appellants
Ms C Damiso, for the first respondent
M Chakalson SC, for the second respondent
CJ: this is an appeal against the judgement of the High
Court where in PATEL J dismissed the appellants application to have
set aside the election of the second respondent as the Speaker of
Parliament (hereinafter referred to as "the Speaker").
The appellants, as the applicants in the court a quo, sough the
following relief set out in the draft order:
after perusing the documents filed of record and hearing counsel,
it is hereby declared that: -
1. The election of (the) second respondent as the Speaker of the
Parliament of Zimbabwe on 25 August 2008 is null and void and set
2. . . .
3. That the
respondents jointly and severally pay the costs of suit
abandoned the relief set out in paragraph 2)
main contention in the court a quo and in this Court is that the
election of the Speaker was null and void because it was not conducted
in terms of s39 of the Constitution
of Zimbabwe (hereinafter referred to as "the Constitution"),
as read with Standing Order 6 of the Standing Orders of Parliament
of Zimbabwe (hereinafter referred to as "the Standing Orders").
PATEL J dismissed the application. The appellants now appeal against
of appeal are set out in the Notice of Appeal, which, in relevant
part, reads as follow:
1. The learned
Judge a quo erred in finding that a proper election of Speaker of
Parliament was conducted in terms of the Constitution and the law.
2. The learned
Judge erred in condoning the first respondent's failure to
implement and enforce his own procedures for the elections.
3. The learned
Judge a quo erred in finding that the participants' exposure
of their completed ballot papers was not a violation of the secret
4. The learned
Judge a quo erred in finding that a secret ballot took place.
5. The learned
Judge a quo erred in interpreting section 39(2) of the Constitution
as read with Ordinance 6 of the House of Assembly Standing Orders
as directory and not peremptory."
of appeal set out in the notice of Appeal, as read with the record
and submissions by counsel, raise essentially the following two
issues for the determination in this appeal.
the exposure of the secret ballot before the depositing of the ballot
papers in the ballot box by some Members of the Parliament amounts
to a violation of the voting by secret ballot and, if so, whether
that rendered the election of the Speaker null and void; and
the failure by the Clerk of Parliament of Zimbabwe (hereinafter
referred to as "the Clerk") to control the voting process
and the consequent chaotic conditions constitutes a failure by the
Clerk to conduct an election in terms of s 39 of the Constitution,
as read with the Standing Orders.
facts of this case are as follow. The first respondent is the Clerk
of Parliament of Zimbabwe. Pursuant to Proclamation No 7 of 2008,
the Clerk convened the first meeting of Parliament on 25 August
2008 for the purposes of swearing in the Members of Parliament and
electing the presiding officers. The Clerk's mandate to conduct
these elections is derived from the Standing Orders - in the
case of the House of Assembly Standing Order No. 6. Two candidates
were nominated for the office of Speaker, namely Mr. Paul Themba-Nyathi
(hereinafter referred to as "Nyathi") and the second
respondent (hereinafter referred to as "Moyo"). Standing
Order No .6 provides that if more than one person is proposed as
Speaker of Parliament, the Clerk shall condct an election of the
Speaker by ballot box. The election took place and the Clerk announced
that Nyathi had garnered ninety-eight votes and Moyo had garnered
one hundred and ten votes. The Clerk accordingly declared Moyo the
winner. Moyo assumed the office of Speaker. The applicants want
the election of Moyo set aside.
I now wish to
deal with the issue of whether the election was conducted by secret
ballot as is required by s 39 of the Constitution, as read with
Standing Order No. 6 of the Standing Orders.
counted that some Members of Parliament from the MDC-T party, having
marked their ballot papers in the secrecy of the polling booths,
openly displayed their marked ballot papers before depositing them
in the ballot box. The appellants contend that the majority of the
Members of Parliament from the MDC-T party did this, while the respondents'
position is equivocal.
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