Yvonne Musarurwa and Others v The Minister of Justice, Legal and Parliamentary Affairs and Others

Three applicants (Yvonne Musarurwa, Tungamirai Madzokere, and Last Maengahama) were serving 20-year prison sentences for murder when they filed this application in 2017. They sought to be registered as voters and to vote in elections while incarcerated. The application was initially argued before Phiri J in July 2018, but he passed away before delivering judgment, requiring the matter to start afresh before Mutevedzi J. By the time of the hearing before Mutevedzi J in 2022, all three applicants had been released from prison - the first applicant through presidential amnesty and the second and third applicants after the Supreme Court overturned their convictions. The applicants argued they had the constitutional right to vote under section 67(3) of the Constitution and that the state was obliged to facilitate their registration and voting while in prison. The respondents opposed the application on grounds including mootness and that residence requirements in the Electoral Act prevented prisoners from voting, though prisoners were not disqualified from voting per se.

• Whether the application had become moot due to the applicants' release from prison
• Whether the Constitutional Court's decision in Gabriel Shumba v Minister of Justice & Ors CCZ 4/18 rendered the legal issues in this case moot
• Whether prisoners have the right to be registered as voters and to vote while incarcerated under the Constitution of Zimbabwe
• Whether the residence requirements in section 23 of the Electoral Act constitutionally limit prisoners' right to vote
• Whether the court should exercise its discretion to hear a moot case in the interests of justice

The application was dismissed with costs. The respondents' preliminary objection in limine based on mootness was upheld.

A case becomes moot and must be dismissed where issue mootness exists - that is, where the legal questions raised have been authoritatively determined by a court of superior jurisdiction during the pendency of the matter. Unlike personal stake mootness, issue mootness does not permit the court to exercise discretion to hear the matter in the interests of justice. Lower courts are bound by Constitutional Court decisions on constitutional matters and cannot make findings contrary to those precedents. Litigants who seek to sue in the public interest or on behalf of a class must specifically plead their standing under section 85(1) of the Constitution and demonstrate they are genuinely acting in such capacity; gratuitous statements in pleadings are insufficient to establish such standing.

The court commented on the need for temperate and respectful language in affidavits, criticizing the applicants' use of infantile insults and ridiculously juvenile language against the first respondent's deponent. The court observed that while forceful presentation of facts is permissible, outlandish averments sounding like threats are inappropriate. The court also remarked that litigants, especially when represented by legal practitioners, must fully describe parties in applications and explain why each party is cited, rather than simply mentioning names or titles. The court noted in passing that section 161(2) of the Electoral Act, which purported to give the Electoral Court exclusive jurisdiction over electoral matters, may be ultra vires the Constitution to the extent it seeks to oust the High Court's inherent jurisdiction, though this point was not pressed as the Electoral Act had been amended and the parties had reached consensus on jurisdiction.

This case provides important guidance on the doctrine of mootness in Zimbabwean law, particularly the distinction between personal stake mootness and issue mootness. It clarifies that while courts have discretion to hear cases affected by personal stake mootness where it serves the interests of justice, issue mootness (where the legal question has been authoritatively resolved) generally precludes judicial determination. The case also confirms the binding nature of Constitutional Court precedent on lower courts and reinforces the requirements for standing when litigants claim to act in the public interest or on behalf of a class under section 85(1) of the Constitution. On the substantive electoral law issue, the case confirms that while prisoners are not constitutionally disqualified from voting (unlike under the former Constitution), they cannot vote if they fail to meet the residence requirements in the Electoral Act, which the Constitutional Court has held to be constitutional.