Zimbabwe’s Supreme Court Hands Down Speaker of Parliament Judgment

March 11, 2011

Zanu-PF’s prodigal son, Jonathan Moyo, has secured a victory of sorts before Zimbabwe’s Supreme Court: securing a judgment holding that the 2008 election of the Speaker of Parliament should be set aside.  But the holding comes at the cost of some very specious reasoning on the part of the majority of the Court and the impression again that the higher echelons of Zimbabwe’s judiciary are less concerned to secure principles of separation of powers and judicial independence than they are to perform ostentatious prostrations of fealty to Zanu-PF.

Jonathan Moyo, not until this point known for his solicitous regard for Parliamentary niceties and decorum, complained that the 2008 election of the Speaker of Parliament had occurred in so chaotic a context, and that certain Members of Parliament had disclosed their votes (the Court proceeded on the basis that it was no more than 6 of 208 MPs), offending the requirement that the Speaker be elected by secret ballot and that as a consequence the election should be nullified. Those MPs said to have disclosed their votes were from the MDC-T party and the vote resulted in the election of Lovemore Moyo of the MDC-T party as Speaker. It isn’t too hard to imagine what objective lay behind Jonathan Moyo’s challenge.   

Despite considerable authority placed before the Court making it plain that secret ballots are intended to protect the voter from intimidation and that obligations on the regulating authority extend to ensuring that each voter is able to cast his vote privately and in secret without fear of his choice being identified by others (and there is not even a hint of suggestion that this was not assured in the 2008 Speaker vote), but that the individual voter may choose to divulge his vote without this detracting “from the secrecy of his vote or vitiate[ing] the secrecy of the ballot as a whole”, Chief Justice Chidyausiku nonetheless concluded that this authority was irrelevant. It was immaterial to him that the great weight of authority indicates that a vote by secret ballot guarantees a “personal privilege which might be waived”.

It is hard to imagine who is more contemptuous of foreign authority: Chief Justice Chidyausiku or Justice Scalia of the US Supreme Court.  Chidyausiku CJ waved away the authority as “judgements of foreign courts” and insisted that they were mere interpretation of Statutes in the respective domestic jurisdictions and not “pronouncements on general jurisprudential principles”, as if such a distinction had any consequential meaning.

 He wasn’t prepared to stop there. On holding that secrecy of the ballot had been breached, Chidyausika put the most severe construction on the consequence of such breach – determining that the election had to be set aside.  And yet as Justice Sandura, dissenting, explained: It is a well-established principle that if non-compliance with the provisions of the electoral law did not affect the result of the election (and there is no suggestion that the MPs’ disclosure of their votes affected the result), than the election will not be set aside.   That principle, says Sandura JA. is one “based on common sense, and common sense dictates that if an irregularity does not affect the result of the election, it cannot form a basis for the nullification of the election.” Sandura JA’s wisdom did not prevail.

The danger now must be that ZANU-PF will use the judgment in an attempt to impeach the legality of the current Parliament and bolster its call for imminent elections without the governing framework of an agreed upon new Constitution.

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