Jonathan Nathaniel Moyo and Others v Austin Zvoma NO, Clerk of Parliament and Lovemore Moyo

On 25 August 2008, the first respondent (Clerk of Parliament) convened the first meeting of Parliament following the 2008 elections for swearing in Members of Parliament and electing presiding officers. Two candidates were nominated for Speaker: Paul Themba-Nyathi and the second respondent (Lovemore Moyo). The Clerk conducted the election by secret ballot. The result was that Nyathi garnered 98 votes and Moyo garnered 110 votes. The Clerk declared Moyo the winner. The appellants, who were Members of Parliament who had participated in the election, sought to have the election set aside. They alleged that: (1) there was noise, utter chaos and disorder in the Chamber; and (2) some Members of the MDC-T party, including Moyo himself, came out of the polling booth with unfolded ballot papers and displayed them to others to disclose for whom they had voted before folding and depositing them in the ballot box, in violation of the secret ballot requirement. The court a quo found that only six Members displayed their ballots in this manner out of 208 voters. The High Court dismissed the application.

• Whether the exposure of ballot papers by some Members of Parliament before depositing them in the ballot box amounts to a violation of voting by secret ballot and, if so, whether that rendered the election of the Speaker null and void
• Whether the failure by the Clerk of Parliament to control the voting process and the alleged chaotic conditions constitute a failure to conduct an election in terms of section 39 of the Constitution as read with Standing Order 6
• Whether section 39(2) of the Constitution, as read with Standing Order 6, is mandatory or directory
• What are the legal consequences of counting invalid votes as secret ballots when determining the result of an election
• Whether the doctrine of substantial compliance applies to elections conducted under Standing Orders of Parliament

The appeal was allowed by a 3-2 majority. The order of the High Court was set aside and replaced with an order that the application succeeds and the election of the second respondent as Speaker is hereby set aside. The respondents were ordered to pay costs jointly and severally, the one paying the other to be absolved.

The binding legal principles established by the majority are: (1) Section 39(2) of the Constitution, as read with Standing Order 6, prescribes a mandatory requirement that the election of the Speaker must be conducted by secret ballot, using peremptory language that must be strictly complied with; (2) Voting by secret ballot requires three essential elements: (a) each Member receives a ballot paper; (b) each Member marks the ballot paper in private in the polling booth; and (c) each Member deposits the ballot paper in the ballot box privately without disclosing it to others; (3) Members who display their marked ballot papers to others before depositing them in the ballot box violate the secrecy of the ballot, rendering their votes invalid for purposes of the secret ballot requirement; (4) When the Clerk counts invalid votes (that have lost their secrecy) as valid secret ballots in determining the outcome of the election, this constitutes a failure to conduct the election by secret ballot as required by law; (5) Where a constitutional provision uses peremptory language ("shall") and does not explicitly incorporate a substantial compliance doctrine (unlike section 177 of the Electoral Act), and where re-election does not pose significant practical difficulties, Parliament's intention is that non-compliance renders the election invalid; (6) The use of different language by the Legislature on the same subject matter in different statutes (comparing Standing Order 6 with section 177 of the Electoral Act) is evidence of different legislative intent.

The Chief Justice made several obiter observations: (1) He expressed concern that the Clerk failed to stamp his authority on the election and insist that Members conduct themselves according to his instructions, though he held this alone was insufficient to set aside the election; (2) He emphasized that Parliament, as one of the most revered institutions, should lead by example and scrupulously obey its own laws, and should set the best example in conducting elections, particularly in Zimbabwe which is plagued by electoral contestation; (3) He clarified that his judgment does not seek to reinstate the old principle of strict compliance with the letter of statutes, but rather is based on discerning legislative intent from statutory language and comparative analysis; (4) He noted that the principle that peremptory enactments must be obeyed was not abandoned in Sterling Products but was modified to endorse a more flexible application. Malaba DCJ observed: (1) That the application was in substance a review application despite the applicants' disavowal; (2) That respondents should not receive costs due to their use of insulting and discourteous language in affidavits, which added nothing to the determination and offended the court's sense of fairness; (3) That there is a need to discourage the use of invective language in court proceedings. Sandura JA observed: (1) That the principle that elections will not be set aside for irregularities not affecting the result is based on common sense and has been part of electoral law for 82 years; (2) That when Standing Order 6 was drafted, Parliament must have been aware of this principle and felt no need to state the obvious; (3) That the description of the election as "shambolic and chaotic" was not supported by the trial judge's findings, which found the election "sufficiently regulated" despite imperfections.

This case is significant in Zimbabwean constitutional and parliamentary law for several reasons: (1) It addresses the interpretation of constitutional and parliamentary provisions requiring elections by secret ballot; (2) It demonstrates a division in the Supreme Court on the approach to interpreting mandatory statutory provisions - between strict compliance and substantial compliance approaches; (3) It clarifies that voters can waive their right to ballot secrecy, but the majority held this does not validate votes that violate secrecy requirements; (4) It establishes that peremptory language in constitutional provisions remains cogent evidence of legislative intent to require exact compliance, even after the move toward more flexible interpretation; (5) It demonstrates the use of comparative statutory interpretation - comparing the language of Standing Order 6 with section 177 of the Electoral Act to discern legislative intent; (6) The case illustrates the tension between upholding electoral integrity and respecting the will of the majority where irregularities do not affect the outcome; (7) It emphasizes the special status of Parliament and the need for scrupulous compliance with electoral procedures in parliamentary elections.