Chief Justice Luke Malaba has been accused of acting illegally by increasing application fees for those wishing to challenge the outcome of National Assembly elections, a legal watchdog has said.
This comes after Malaba increased the application fee from $500 to $2 000 for those wishing to challenge the National Assembly election results outcome.
Legal and parliamentary watchdog, Veritas, said the amounts have not been prescribed in regulations made by Zec under section 192 of the Electoral Act.
“The amount prescribed in section 28 of the Electoral Regulations is $500. Six days ago the chief justice issued a Practice Direction in which he announced that the prescribed amount was now to be $2 000 for National Assembly election petitions and $1 000 for local authority petitions.
“The Practice Direction is probably illegal because the amounts have not been prescribed in regulations made by Zec under section 192 of the Electoral Act, as they should have been.
“In any event the Direction probably does not apply to current petitions because section 157(5) of the Constitution states that changes to laws relating to elections do not apply to an election once it has been called. Whatever its validity, the timing of the Practice Direction — issued just before election petitions are due to be lodged – is most unfortunate.”
The crunch July 30 elections were marred by the yet-to-be tested allegations of ballot cheating which resulted in MDC Alliance leader Nelson Chamisa and various opposition candidates who were vying for National Assembly seats to contest the outcome via election petitions to the Electoral Court.
An election petition challenging the election of a member of the National Assembly in a general election must be lodged to the Electoral Court within 14 days after the declaration of the results for the last constituency in the election.
An election petition challenging the election of a councillor in a general election must be lodged with the Electoral Court within 14 days after the declaration of the results for the last ward of the local authority concerned.
Only an unsuccessful candidate for the parliamentary or council seat concerned may lodge an election petition according to Electoral Act, section 167. Political parties and members of the public cannot do so.
Section 167 of the Electoral Act allows an election petition to complain that the election was not valid “by reason of want of qualification, disqualification, electoral malpractice, irregularity or any other cause whatsoever”.
This is very widely phrased but the circumstances in which the Electoral Court can set aside an election are more limited.
“Electoral malpractice” means an intimidatory practice, corrupt practice, illegal practice or other offence in terms of Part XX of the Electoral Act.
Intimidatory practices include intimidating people to vote for a particular candidate or not to vote, or compelling people to attend political meetings or other events; taking anyone’s identity documents to obstruct voting; and a very recent addition to the list by the Electoral Amendment Act, persuading or attempting to persuade people that it will be possible to discover who they have voted for in an election.
Corrupt practices include bribery, using undue influence to induce people to vote or not to vote, and impersonating voters or casting more than one vote in an election.
Illegal practices include preventing the holding of lawful political meetings; destroying, defacing or removing political posters; conducting political activities within 300 metres of a polling station on polling day; obstructing voters from voting either at a polling station or on their way to or from a polling station.
Within 10 days after a petition is lodged, written notice of it must be served on the person whose election is challenged, either on him or her in person or by leaving it at his or her usual or last known dwelling or place of business according to section 169 of the Electoral Act.
In previous elections, many petitions were summarily dismissed for being served late or at the headquarters of the successful candidate’s political party.
Petitioner must give security for the respondent’s costs.
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