Ngonidzashe Shiri Chandiwana v Tapiwa Felix Mhona

The petitioner stood as an independent candidate in the National Assembly elections for the Chikomba Central Constituency in Mashonaland East Province on 30 July 2018. The respondent, a ZANU-PF party candidate, won the election and was declared the duly elected member on 31 July 2018. Six candidates contested the seat in total. On 17 August 2018, the petitioner filed an electoral petition within the prescribed period under s 168(2) of the Electoral Act [Chapter 2:13], challenging the election on the basis of illegal and electoral malpractices, intimidation of voters, and violence. The petitioner named 11 alleged perpetrators of electoral malpractices in his founding affidavit and also implicated the losing MDC-A candidate. The respondent opposed the petition on 30 August 2018, raising three preliminary objections challenging the validity of the petition itself before addressing the merits.

• Whether the petition was a nullity for failure to serve the alleged perpetrators of electoral malpractices identified in the petition
• Whether the petition was a nullity for failing to comply with sections 166 and 167 of the Electoral Act read with Rule 21(f) of the Electoral Rules by citing persons other than the winning candidate as respondents
• Whether the petition failed to comply with Rule 21(g) of the Electoral (Applications, Appeals and Petitions) Rules, 1995 by not setting out the exact relief sought and the full names and addresses of alleged perpetrators on the face of the petition

1. The electoral petition filed by the petitioner is fatally defective and is of no force and effect for want of compliance with Rule 21(f) and (g) of the Electoral (Application, Appeals and Petitions) Rules, 1995. 2. The petition is dismissed. 3. The respondent Tapiwa Felix Mhona is declared duly elected member of the National Assembly for the Chikomba Central Constituency in accordance with the declaration of 31 July 2018. 4. The petitioner shall bear the respondent's costs.

Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules, 1995 is peremptory and requires that: (1) the full names and addresses of all persons alleged to have committed corrupt or illegal practices, and (2) the exact relief sought by the petitioner, must appear on the face of the petition itself and not merely in supporting affidavits, annexures, or draft orders. Failure to comply with these requirements renders the petition fatally defective and of no force and effect. The substantial compliance doctrine does not apply to the mandatory requirements of Rule 21. In electoral petitions, "respondent" as defined in s 166 of the Electoral Act means only the winning candidate whose election is challenged, and other alleged perpetrators of electoral malpractices cannot be cited as respondents but are dealt with under s 158 and Rule 29.

The court observed that the Electoral (Applications, Appeals and Petitions) Rules, 1995 have never been amended or updated despite various momentous changes in the electoral field over the past 23 years and are now ripe for a major overhaul to meet the exigencies of the prevailing electoral field. The court also noted that the introduction of s 171(1a) by Act No 6 of 2018 (which allows the court to resolve disputes of fact by hearing oral evidence) appears to envisage the filing of founding and supporting affidavits with a petition, though this does not alter the requirement that essential information appear on the face of the petition. The court further commented that while a petition is a modified court application under Rule 21, the filing of a draft order is excluded by the requirement to "state the exact relief sought by the petitioner" on the face of the petition itself.

This case reinforces the strict compliance required with Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules, 1995 in electoral petitions. It clarifies that electoral petitions must differ from ordinary court applications by including all essential information on the face of the petition itself, not in supporting documents. The judgment authoritatively confirms the continued applicability of the 1995 Electoral Rules despite legislative changes, and provides important guidance on: (1) the definition of "respondent" in electoral petitions being limited to the winning candidate; (2) the procedure for dealing with alleged perpetrators of electoral malpractices; and (3) the peremptory nature of procedural requirements in electoral matters where substantial compliance is insufficient. The case also highlights that the Electoral Rules require urgent updating to meet modern electoral realities.