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Supreme Court Judgement No SC 28/10 - Election of Speaker of Parliament 2008
Supreme Court of Zimbabwe
March 10, 2011

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Reportable (20)

Judgement No. S.C. 28/10
Civil Appeal No. 62/10

(1) Jonathan Nathaniel Moyo (2) Moses Mzila Ndlovu (3) Patrick Dube (4) Siyabonga Ncube v (1) Austin Zvomano, Clerk of Parliament (2) Lovemore Moyo

Supreme Court of Zimbabwe
Chidyausiku CJ, Malaba DJC, Sandura JA, Ziyambi JA & Garwe JA
Harare September 21, 2010 & March 10, 2011

T. Hussein, for the appellants
Ms C Damiso, for the first respondent
M Chakalson SC, for the second respondent

CHIDYAUSIKU 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:

"WHEREUPON 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 aside.

2. . . .

3. That the respondents jointly and severally pay the costs of suit

(The applicants abandoned the relief set out in paragraph 2)

The appellants' 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 that judgement.

The grounds of appeal are set out in the Notice of Appeal, which, in relevant part, reads as follow:

"Grounds of Appeal

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 ballot.

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."

The grounds 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.

(a) whether 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

(b) whether 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.

The background 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.

The appellants 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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