Judgment record
Brian Leslie James v Zimbabwe Electoral Commission & 4 Ors
[2013] ZWCCZ 4CCZ 4/132013
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Judgment No. CCZ 4/13 1
Const. Application No. 38/2013
REPORTABLE (3)
BRIAN LESLIE JAMES
v
(1) ZIMBABWE ELECTORAL COMMISSION (2) MINISTER OF
LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT
(3) MINISTER OF JUSTICE & LEGAL AFFAIRS (4) MINISTER
OF CONSTITUTIONAL & PARLIAMENTARY AFFAIRS
(5) ATTORNEY-GENERAL OF ZIMBABWE
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA,
GOWORA JA, PATEL JA, HLATSHWAYO JA & CHIWESHE AJA
HARARE, JUNE 28 & NOVEMBER 28, 2013
T Mpofu, for the applicant
T M Kanengoni, for the first respondent
M Chimombe, for the fifth respondent
No appearance for the second, third and fourth respondents
PATEL JA: After hearing argument from counsel, the court was
unanimous in granting this application in the following terms:
“1. It is declared that the applicant is not disqualified from standing as a candidate
for election as a councillor in the forthcoming municipal elections.
2. There shall be no order as to costs.”
We further indicated that our reasons would follow in due course and
these are those reasons.
Judgment No. CCZ 4/13 2
Const. Application No. 38/2013
BACKGROUND
The applicant is a registered voter who was duly elected as a councillor
and mayor of Mutare in 2008. He was suspended from his position as councillor in
January 2012 by the second respondent, the Minister of Local Government, on
allegations of misconduct under s 114 of the Urban Councils Act [Cap 29:15].
Following the second respondent’s failure to determine those allegations within 45 days,
the applicant challenged his continuing suspension before the High Court in Case No. HC
3875/12. That matter is awaiting set-down for hearing and is yet to be determined.
The applicant has been requested by his constituents to stand as an
independent candidate in the council elections to be held on 31 July 2013.
However, s 119(2)(i) of the Electoral Act [Cap 2:13] disqualifies a suspended councillor
from being re-elected. The applicant avers that this provision infringes his fundamental
right to stand for election to public office in terms of s 67(3)(b) of the Constitution. He
further avers that the provision is unfair, unreasonable and arbitrary because it imputes
guilt where it is not proven and operates without interrogating the circumstances of the
suspension. It is also unjustifiable as it presupposes that the person suspended is not
suitable for public office. Moreover, it is illogical and inutile and does not serve any
public interest because a suspended councillor can still stand as a candidate for
parliamentary or presidential elections. It has dire consequences since there is no remedy
once the elections are held, even if the councillor is subsequently vindicated and absolved
of guilt.
Judgment No. CCZ 4/13 3
Const. Application No. 38/2013
For all of these reasons, the applicant contends that the provision is
unconstitutional insofar as it disqualifies suspended councillors from standing for re-
election. The matter is not only of personal importance but also of national importance.
The applicant accordingly seeks an order striking out the provision as being inconsistent
with the Constitution. He also seeks an order directing the relevant nomination court to
accept and not reject his nomination papers on the ground of his suspension.
The first respondent, the Zimbabwe Electoral Commission, has stated that
it would abide the decision of the court as it has no factual basis to controvert the
applicant’s position. The second respondent, despite his obvious and direct interest in the
matter, has not filed any notice of opposition. Nevertheless, the fifth respondent, the
Attorney-General, has opposed the application and the relief sought. He avers that
suspension under s 114 of the Urban Councils Act is designed to safeguard the integrity
and well-being of the urban council concerned. A councillor who is suspended, so it is
argued, must have committed some wrong. Consequently, to allow the re-election of a
suspended councillor would circumvent and defeat the purpose and effect of suspension.
Section 119(2)(i) of the Electoral Act is intended to protect the public interest, public
confidence and public assets. Accordingly, the restriction against re-election imposed by
that provision is not unreasonable but necessary in a democratic society.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
Section 67 of the Constitution guarantees the political rights of all
Zimbabwean citizens. Subsection (3) deals specifically with electoral rights as follows:
Judgment No. CCZ 4/13 4
Const. Application No. 38/2013
“Subject to this Constitution, every Zimbabwean citizen who is of or over
eighteen years of age has the right –
(a) to vote in all elections and referendums to which this Constitution or any other
law applies, and to do so in secret; and
(b) to stand for election to public office and, if elected, to hold such office.”
The limitation of any fundamental right or freedom enshrined in the
Constitution must conform with subs (2) of s 86 which provides that:
“The fundamental rights and freedoms set out in this Chapter may be limited only
in terms of a law of general application and to the extent that the limitation is fair,
reasonable, necessary and justifiable in a democratic society based on openness,
justice, human dignity, equality and freedom, taking into account all relevant
factors, including –
(a) the nature of the right or freedom concerned;
(b) the purpose of the limitation, in particular whether it is necessary in the
interests of defence, public safety, public order, public morality, public health,
regional or town planning or the general public interest;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and freedoms by any person
does not prejudice the rights and freedoms of others;
(e) the relationship between the limitation and its purpose, in particular whether it
imposes greater restrictions on the right or freedom concerned than are
necessary to achieve its purpose; and
(f) whether there are any less restrictive means of achieving the purpose of the
limitation.”
Section 114 of the Urban Councils Act regulates the suspension and
dismissal of councillors as follows:
“(1) Subject to this section, if the Minister has reasonable grounds for
suspecting that a councilor –
Judgment No. CCZ 4/13 5
Const. Application No. 38/2013
(a) has contravened any provision of the Prevention of Corruption Act
[Cap 9:16]; or
(b) has contravened section one hundred and seven section one hundred
and eight or section one hundred and nine; or
(c) has committed any offence involving dishonesty in connection with
the funds or other property of the council; or
(d) has been responsible—
(i) through serious negligence, for the loss of any funds or
property of the council; or
(ii) for gross mismanagement of the funds, property or affairs
of the council;
whether or not the councillor’s responsibility is shared with
other councillors or with any employees of the council; or
(e) has not relinquished office after his seat became vacant in terms of this
Act;
the Minister may, by written notice to the councillor and the council
concerned, suspend the councillor from exercising all or any of his
functions as a councillor in terms of this Act or any other enactment.
(2) Any allowance that is payable to councillors in terms of this Act shall
continue to be paid to a councilor who has been suspended in terms of
subsection (1) for so long as he remains a councillor, unless the Minister,
by notice in writing to the council concerned, directs otherwise.
(3) As soon as is practicable after he has suspended a councillor in terms of
subsection (1), and in any event within forty-five days, the Minister shall
cause a thorough investigation to be conducted with all reasonable
dispatch to determine whether or not the councillor has been guilty of any
act, omission or conduct referred to in that subsection.
(4) If, following investigation, the Minister is satisfied that the grounds of
suspicion on the basis of which he suspended a councillor in terms of
subsection (1) have been established as fact, he may, by written notice to
the council and the councillor concerned, dismiss the councillor, and the
councillor’s seat shall thereupon become vacant.
(5) A person who has been dismissed in terms of subsection (3) shall be
disqualified from nomination or election as a councillor for a period of
five years.”
Judgment No. CCZ 4/13 6
Const. Application No. 38/2013
It seems necessary at this juncture to note in passing the procedure to be
followed before and after the suspension of a councillor in terms of s 114. Subsection (1)
requires that the suspension must be effected by written notice. It is trite that any
administrative decision adversely affecting the rights of another must be accompanied by
the reasons for that decision. The letter of suspension in casu, dated 19 January 2012, is
vague in that it refers to an earlier cautionary letter but does not itself spell out the
reasons for suspension. This omission renders questionable its procedural validity.
Additionally, subs (3) enjoins the Minister to cause a thorough
investigation to be conducted in order to determine the guilt or otherwise of the
councillor, within 45 days of his or her suspension. Thereafter, upon being satisfied of
his or her guilt, the Minister must decide under subs (4) whether to dismiss the councillor
for misconduct. The precise time limit for the making of such decision is not specified.
However, having regard to the drastic nature of suspension and its highly prejudicial
effects, it seems that the decision must be taken with reasonable expedition.
In the instant case, although all the relevant facts are not before us, it
would appear at first glance that the second respondent has failed to comply with the
procedural requirements of s 114.
Subsections (1) and (2) of s 119 of the Electoral Act prescribe the qualifications
and disqualifications for election as a councillor. The relevant provisions stipulate that:
“(1) Any person who –
Judgment No. CCZ 4/13 7
Const. Application No. 38/2013
(a) is a citizen of Zimbabwe; and
(b) has attained the age of twenty-one years; and
(c) is enrolled on the voters roll for the council area concerned; and
(d) is not disqualified in terms of subsection (2);
shall be qualified to be elected as a councillor.
(2) A person shall be disqualified from being nominated as a candidate for or
from election as a councilor if –
(a) – (h) …….. ; or
(i) he or she is suspended in terms of section 157 of the Rural District
Councils Act [Chapter 29:13] or section 114 of the Urban
Councils Act [Chapter 29:15], as the case may be, from exercising
all his or her functions as a councillor or, having been dismissed in
terms of either of those sections, he or she is disqualified under the
section concerned from nomination or election as a councillor.”
CONSTITUTIONALITY OF SECTION 119(2)(i) OF THE ELECTORAL ACT
As I have already stated, s 67(3)(b) of the Constitution entrenches the right
of every citizen to stand for and hold public office. There is no doubt that s 119(2)(i)
operates to derogate from that right in relation to a councillor who is either suspended or
dismissed from office. The crux of the present matter is whether or not that derogation
falls within the bounds of permissible limitation under s 86(2) of the Constitution. The
fifth respondent contends that it is justifiable in the general public interest, while the
applicant argues that the public interest only applies where a councillor is dismissed and
not where he or she is merely suspended.
As has been held with respect to the Declaration of Rights in the former
Constitution, any derogation from a fundamental right or freedom must be strictly and
Judgment No. CCZ 4/13 8
Const. Application No. 38/2013
narrowly construed. There must be a rational connection between the objective of the
derogation and the implementing law. Moreover, the means employed should not impair
the right in question more than is necessary to achieve the declared objective. See
Minister of Home Affairs & Others v Dabengwa & Another 1982 (1) ZLR 236 (S) at
244B-C; S v Hartmann & Another 1983 (2) ZLR 186 (S) at 192H; S v Ncube & Others
1987 (2) ZLR 246 (S) at 264F.
Section 86(2) of the Constitution is essentially a restatement of the criteria
for permissible derogation from constitutional rights as enunciated by the Supreme Court
in Nyambirai v National Social Security Authority & Another 1995 (2) ZLR 1 (S). In the
words of GUBBAY CJ at 13C-F:
“In effect the court will consider three criteria in determining whether or
not the limitation is permissible in the sense of not being shown to be arbitrary or
excessive. It will ask itself whether:
(i) the legislative objective is sufficiently important to justify limiting
a fundamental right;
(ii) the measures designed to meet the legislative object are rationally
connected to it; and
(iii) the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.”
In my view, the reasons advanced by the fifth respondent as justifying the
electoral disqualification of a suspended councillor do not stand the test of these
established criteria or those set out in s 86(2) of the Constitution. First and foremost, the
fifth respondent has failed to demonstrate any rational connection between the
undeniably valid objective of protecting and preserving public assets and the need to
Judgment No. CCZ 4/13 9
Const. Application No. 38/2013
disqualify a suspended councillor from standing for re-election. The fact that a councillor
is suspended on mere suspicion of misconduct cannot possibly justify the inference that
he or she must have committed some unspecified wrongdoing or that he or she poses a
threat to public assets. The very suggestion of any such inference is an affront to the
time-honoured presumption of innocence. It can only apply, depending on the facts,
where the suspended councillor is found guilty of misconduct after due process. The
impugned provision penalises a councillor, even though no finding of guilt has been
established, and even where he or she might subsequently be exonerated and absolved of
any guilt. It undoubtedly goes considerably further than is necessary to achieve any
legitimate public interest objective.
Secondly, the effect of the provision is irreversible, conceivably for the
ensuing period of five (5) years. If the suspension of a councillor is nullified and set
aside at any time after nomination day, he or she is nevertheless disqualified from
standing for re-election until the next council election is held. The law cannot justifiably
be allowed to disenfranchise a presumptively innocent citizen for five (5) years. This is
particularly pertinent to the impugned provision inasmuch as it is open to the possible
abuse of eliminating a political opponent from candidature by the simple expedient of
suspension and, more pointedly, suspension founded on mere suspicion. This possibility
of the provision being applied mala fide serves to further attenuate its rationality. As was
aptly observed by the Indian Supreme Court in Thappar v State of Madras [1950] SCR
594 (SC) at 603:
Judgment No. CCZ 4/13 10
Const. Application No. 38/2013
“So long as the possibility (of a limitation) being applied for purposes not
sanctioned by the Constitution cannot be ruled out, it must be held to be wholly
unconstitutional and void”.
In conclusion, the constitutionality of s 119(2)(i) as it is presently framed
cannot be sustained for the following reasons. The purpose of the provision is
unquestionably noble and eminently defensible. It is to ensure that individuals who have
a proven record of corruption or dishonesty in the management of public funds or public
assets do not qualify for council office. On the other hand, there can be no doubt that the
constitutional right to stand for and hold public office is a fundamental right of
paramount political and civic importance. Any curtailment of that right must be very
closely circumscribed so as to avoid the right being rendered nugatory. As I have already
indicated, the impugned provision cannot be justified as being necessary in the general
public interest. Nor can it be recognised as serving any other interest alluded to in s 86(2)
(b) of the Constitution. Moreover, the nature and extent of the limitation imposed by the
provision far exceed the means necessary to achieve its primary purpose. In short, the
effect of the provision is to abridge a fundamental right in a manner that is not reasonably
justifiable in a democratic society based on respect for civic liberties and freedom.
Obviously, the provision cannot be struck down in its entirety but only to
the extent that it applies to persons who are suspended from council office in terms of s
157 of the Rural District Councils Act [Cap 29:13] or s 114 of the Urban Councils Act
[Cap 29:15]. It remains unimpeachable insofar as it applies to those who have been
dismissed in terms of either of those sections and are for that reason disqualified from
Judgment No. CCZ 4/13 11
Const. Application No. 38/2013
nomination or election as councilors. It is accordingly declared that s 119(2)(i) of the
Electoral Act is unconstitutional pro tanto.
CHIDYAUSIKU CJ: I agree.
MALABA DCJ: I agree.
ZIYAMBI JA: I agree.
GWAUNZA JA: I agree.
GARWE JA: I agree.
GOWORA JA: I agree.
HLATSHWAYO JA: I agree.
CHIWESHE AJA: I agree.
Zimbabwe Lawyers for Human Rights, applicant’s legal practitioners
Nyika Kanengoni & Partners, first respondent’s legal practitioners
Civil Division of the Attorney-General’s Office, fifth respondent’s legal practitioners