Movement for Democratic Change v Emmerson Dambudzo Mnangagwa and Others

The applicant, the Movement for Democratic Change (MDC), brought an urgent chamber application for a mandatory interdict ahead of elections scheduled for 30 July 2018. The first respondent was President Emmerson Mnangagwa, cited as President of Zimbabwe and as a political functionary of the second respondent, the Zimbabwe African National Union Patriotic Front (ZANU-PF). The third respondent was Chief Fortune Charumbira, President of the National Council of Chiefs, and the fourth respondent was Chief Alfred Tome, a traditional leader. The applicant alleged that on 8 June 2018, the first respondent addressed a ZANU-PF rally in Mutoko where he urged party candidates to procure the support of traditional leaders by offering them gifts, and encouraged traditional leaders to work with ZANU-PF. The applicant also alleged that on 4 June 2018, the fourth respondent openly declared support for ZANU-PF and chanted political slogans at a rally. The applicant contended these utterances violated the Constitution and the Traditional Leaders Act, which prohibits traditional leaders from showing political affiliation or participating in partisan politics, and undermined the holding of free and fair elections.

• Whether the applicant had locus standi to bring the application given a pending dispute about the legitimate MDC faction
• Whether the court had jurisdiction to hear proceedings against the President of Zimbabwe in his personal capacity while in office in light of section 98 of the Constitution providing for presidential immunity
• Whether a material dispute of fact existed on the papers that could not be resolved without oral evidence
• Whether the Electoral Court had statutory jurisdiction to interdict alleged electoral malpractices prior to the holding of an election
• Whether the Minister of Local Government should have been joined as a necessary party

The application was dismissed with costs.

Section 98(1) of the Constitution creates absolute presidential immunity from civil or criminal proceedings in any court for things done or omitted in the President's personal capacity while in office. The High Court has no jurisdiction to try the President for any misdemeanour committed in his personal capacity while still in office. A political party participating in an election has locus standi to challenge the conduct of elections or the campaigning process, as it has a direct and substantial interest in the outcome and fairness of the electoral process. Where a material dispute of fact arises on the papers in an urgent chamber application that cannot be resolved without oral evidence, and the applicant does not request the court to refer the matter to oral evidence or trial, the court should dismiss the application.

The court observed that the applicant conceded that the Electoral Act does not contain provisions founding the cause of action or relief sought, and that the matter could only be dealt with as an urgent chamber application rather than as an electoral matter. The court noted that if the applicant believed the President had violated the Constitution, it could invoke section 167(2)(d) which gives the Constitutional Court exclusive jurisdiction to determine whether the President has failed to fulfil a constitutional obligation. The court declined to award costs on an attorney-client scale despite the respondents' request for punitive costs, finding no justification for such an order.

This case provides important guidance on the scope of presidential immunity under section 98 of the Zimbabwe Constitution, confirming that sitting presidents enjoy absolute immunity from civil and criminal proceedings for acts done in their personal capacity while in office. The judgment clarifies that such immunity is an exception to the general principle of equality before the law. The case also illustrates the application of principles regarding locus standi for political parties in electoral disputes, the requirements for resolving disputes of fact in motion proceedings, and the limits of the Electoral Court's jurisdiction in interdicting alleged electoral malpractices before elections are held.