[17th June 2023]
Nomination Fees : The Constitutional Court Order – What Now?
Introduction
In August last year the Zimbabwe Electoral Commission [ZEC], with the approval of the Minister of Justice, Legal and Parliamentary Affairs, published SI 144/2022 [link] which increased the fees candidates have to pay in order to be nominated for election as President and for election to Parliament and provincial councils. The increases were enormous: the presidential nomination fee went up from US$1 000 to US$20 000, the nomination for election to a constituency jumped from US$50 to US$1 000, and party-list nomination fees doubled, from US$100 to US$200. We looked at the new fees in our Election Watches 1/2022 [link] and 2/2022 [link] and concluded that they were invalid on the following grounds:
- They were grossly unreasonable – a party will have to find US$238 000 to field a full slate of candidates in a general election,
- They were enacted for an improper purpose, i.e. to prevent or discourage people from standing for election and also to discourage opposition parties which had not benefited from State financing from putting up candidates,
- They were unconstitutional, in that they were inimical to multi-party democracy and inhibited the fundamental rights of citizens to stand for election [guaranteed by section 67 of the Constitution].
The SI was submitted to Parliament for examination by the Parliamentary Legal Committee [PLC] in terms of section 152(3)(c) of the Constitution, which states:
“(3) The Parliamentary Legal Committee must examine—
…
(c) every statutory instrument published in the Gazette;
…
and must report to Parliament … whether it considers any provision in the … statutory instrument … contravenes … any provision of this Constitution.”
The PLC did not examine the instrument at the time and did not report on it.
The Challenge, the Concourt’s Order and its Aftermath
In March this year Mr Divine Hove, the leader of a party called the Nationalists Alliance Party and a former presidential candidate, applied to the Constitutional Court for an order setting aside the SI on the ground that Parliament through the PLC had failed to comply with its constitutional obligation to examine and consider SI 144/2022. He argued that no reasonable Parliament could have failed to realise that the new fees were manifestly unconstitutional; hence Parliament had either not examined the SI at all or had adopted an unduly casual or lackadaisical approach to its examination. Either way it had failed to comply with section 152(3)(c) of the Constitution.
He asked the Court to make the following order:
- That Parliament had failed to comply with its constitutional obligation to examine SI 144/2022 and to consider whether its provisions contravened the Constitution,
- That as a consequence the SI is null and void.
The Constitutional Court heard the application on the 9th June and issued the following order:
“1. It is declared that in respect of SI 144/2022 which was published in the Gazette dated 19 August 2022, the Respondent failed to fulfil its Constitutional obligation under Section 152 of the Constitution.
2. The Respondent is ordered to comply with its Constitutional obligation under Section152 of the Constitution, by not later than close of business on the 16th of June 2023.”
The Court said it would publish its reasons for the order in due course.
Presumably jolted into action by the Court’s order, the PLC met on Monday 12th June to examine SI 144/2022. The next day its report was announced to the National Assembly just before the House adjourned. The report was non-adverse, which means the PLC considered that the SI did not contravene the Constitution or the Electoral Act.
What Now?
The PLC’s report does not affect the intrinsic validity or invalidity of SI 144/2022. All it means is that ZEC will not have to repeal the SI, which it would be obliged to do if the PLC had given an adverse report and the National Assembly had adopted it [see para 9 of the Fifth Schedule to the Constitution]. Instead, the SI remains ostensibly in force until it someone brings a fresh challenge to its constitutionality and a court declares it to be invalid. In reaching its decision on such a challenge the court is unlikely to pay attention to the PLC’s opinion.
Nomination day is next Wednesday the 21st June, so there is really no time to challenge the SI through the courts and get a definitive decision on its validity. As a result candidates and political parties must expect to be charged the new nomination fees, however unfair they may be.
Inadequacy of the Concourt’s Order
It is most unfortunate that the Constitutional Court did not deal directly with the intrinsic constitutionality of the SI, because that would have settled the issue once and for all. The Court probably could not deal with the issue, however, because the applicant did not ask it to do so. It will be remembered that Mr Hove asked for two orders:
- An order that Parliament, i.e. the PLC, had failed to comply with its constitutional obligation to examine the SI, and
- An order that the SI was invalid because Parliament had failed to examine it.
The Court granted the first order but couldn’t grant the second because the validity of an SI does not depend on whether or not the PLC has examined it. This is clear from the Fifth Schedule to the Constitution, paragraph 9 of which lays down the following procedure when the PLC reports adversely on an SI to the National Assembly:
- The Assembly must debate the report.
- If after debate the Assembly resolves to adopt the report – i.e. resolves that the SI does indeed contravene the Constitution – the Clerk of Parliament must report the resolution to the authority that published the SI – in this case ZEC.
- ZEC then has 21 days in which to repeal the SI or to apply to the Constitutional Court for a declaration that the SI is constitutional.
So even after the PLC and the National Assembly have resolved that an SI is unconstitutional, it remains in force until it is repealed or the Constitutional Court has ruled that it is invalid. Conversely, even if the PLC has reported that an SI is constitutionally valid, a court can still set it aside on the ground that it is unconstitutional.
If an SI remains in force despite a resolution by the PLC and the National Assembly that it is unconstitutional, how can an SI possibly become invalid simply because the PLC has not looked at it? There is nothing in the Fifth Schedule or anywhere else in the Constitution to suggest such a thing. Hence all the Constitutional Court could do when faced with Mr Hove’s complaint that Parliament and the PLC had not examined SI 144/2022 was to order them to examine the instrument in accordance with the Constitution. That is what the Court did, no more and no less.
Nonetheless, it is a great pity the Court did not rule on the constitutionality of the SI, which was the real essence of Mr Hove’s complaint.
As things stand, on nomination day next Wednesday candidates and parties will be faced with the payment of nomination fees which, in Veritas’s view, are outrageously high and clearly unconstitutional for the reasons given above.
