Lucia Masekesa v Isaiah Shumba

This was an election petition arising from the Mwenezi Constituency general elections held on 24-25 June 2000. The petitioner, Lucia Masekesa of the MDC, polled 1,881 votes against the respondent Isaiah Shumba of ZANU-PF who received 22,219 votes. The petitioner alleged corrupt and illegal practices including: (1) confiscation of identity cards of MDC members; (2) widespread intimidation and random acts of violence within the constituency; (3) barring of MDC members from voting at polling stations; (4) barring MDC from holding campaign rallies; (5) ZANU-PF sympathizers assisting illiterate voters without supervision; (6) late arrival of voters' rolls at one polling station; (7) malfunctioning ultra violet scanners; and (8) inadequate notice regarding sealing and transportation of ballot boxes. Evidence was led that the petitioner was assaulted on 8 April 2000 by ZANU-PF supporters, and that two MDC members (Zivanayi Wanyara and Paradzai Mawire) were also assaulted. Evidence suggested roadblocks were mounted by ZANU-PF supporters searching for MDC members, which hindered campaigning.

• Whether the election was rendered void by reason of corrupt practices as defined in the Electoral Act
• What standard of proof is required in election petitions alleging corrupt practices
• Whether the alleged acts of violence and intimidation constituted 'undue influence' as defined in section 105 of the Electoral Act
• Whether random acts of violence against supporters, as opposed to targeted influence on specific voters, fall within the definition of corrupt practices that can void an election

The election petition was dismissed with costs. In accordance with section 136(3) of the Electoral Act, the court declared that the respondent Isaiah Shumba was the duly elected Member of Parliament for Mwenezi Constituency.

In an election petition alleging corrupt practices under the Electoral Act, the petitioner must prove beyond reasonable doubt that an offence defined in Part XX of the Act was committed. The offence of 'undue influence' under section 105, while broadly covering various forms of force, violence and threats, is narrowly confined in its application: it requires proof that the prohibited conduct was directed at a particular identifiable person (not the general populace) with the specific intention of compelling or inducing that person to sign/refrain from signing nomination papers, to vote/refrain from voting, or was on account of that person having done so. Random acts of political violence and general intimidation, though unlawful, do not constitute undue influence under section 105 unless this specific nexus between the act and the electoral purpose is established beyond reasonable doubt.

The court observed that the law regarding elections and election petitions is not derived from Roman-Dutch law but is a creature of English common law introduced through statutory provisions. The court noted that while it has wide powers under section 138 of the Electoral Act to examine witnesses and secure attendance by warrant, in adversarial proceedings it should only exercise such powers where the litigant has not expressed reluctance for them to be used. The court also made important observations about multi-party democracy, stating: 'Zimbabweans are granted and guaranteed the right to belong to a party of their choice by the Constitution. Conversion from one party to the other ought to be through persuasion and campaigning rather than by the use of violence and force. That is the way of multi-partysm.' The court acknowledged that the assaults upon witnesses 'cannot be excused' and described the assault leaving one witness for dead as 'a cowardly act', emphasizing that while such acts are unlawful and reprehensible, they must be addressed through other legal remedies if they do not meet the specific statutory requirements for voiding an election.

This judgment is significant in Zimbabwean electoral law as it establishes the high evidentiary threshold required in election petitions alleging corrupt practices. The case clarifies that: (1) allegations of corrupt practices in election petitions must be proved beyond reasonable doubt, equivalent to the criminal standard; (2) the offense of 'undue influence' under section 105 of the Electoral Act, while broadly defining prohibited conduct, is narrowly confined to acts directed at identifiable individuals with specific electoral purposes; (3) random acts of political violence, illegal roadblocks, and general intimidation, while unlawful, do not automatically constitute grounds for voiding an election unless they meet the specific statutory definition of corrupt practices; and (4) there must be a clear nexus between the alleged corrupt acts and the specific purpose of influencing voting behavior or nomination processes. The judgment demonstrates the difficulty petitioners face in successfully challenging election results and emphasizes that electoral remedies are distinct from common law remedies for assault and other unlawful acts.