Zimbabwe Development Party and Voice of the People v President of the Republic of Zimbabwe and Others

The applicants, two political parties (Zimbabwe Development Party and Voice of the People), participated in the 2013 harmonised general elections and wished to participate in the 2018 elections. They filed an urgent chamber application seeking to set down for urgent hearing a main application (CCZ 11/18) in which they sought to bar the President from proclaiming the dates for the forthcoming harmonised general elections until the Political Parties (Finance) Act [Chapter 2:11] was repealed. The applicants alleged that the Act was unconstitutional as it did not provide funding to all political parties, specifically challenging section 3(3) which required political parties to obtain at least 5% of total votes cast in the most recent general election to qualify for state funding. They had not received funding despite participating in the 2013 elections and claimed this violated section 67(4) of the Constitution. The applicants filed their main application without first seeking leave for direct access to the Constitutional Court, claiming this was permissible under section 167(5) of the Constitution. They also sought payment of US$420,000 before any elections were held.

• Whether applicants could file their main application without first obtaining leave for direct access to the Constitutional Court
• Whether it was in the interests of justice to grant the applicants direct access to the Constitutional Court
• Whether the Political Parties (Finance) Act contravened section 67(4) of the Constitution
• Whether a court could interdict the President from performing a mandatory constitutional obligation to proclaim election dates
• Whether section 3(3) of the Political Parties (Finance) Act, requiring 5% vote threshold for funding, was unconstitutional
• Whether the matter was res judicata

The application for direct access to the Constitutional Court was dismissed with no order as to costs.

The binding legal principles established are: (1) Litigants seeking to approach the Constitutional Court directly in matters over which it does not have exclusive jurisdiction must comply with the Constitutional Court Rules and obtain leave for direct access - they cannot rely solely on section 167(5) of the Constitution to bypass procedural requirements; (2) Courts have no jurisdiction to grant interdicts preventing the performance of mandatory constitutional obligations - an interdict cannot be granted against lawful conduct; (3) Section 67(4) of the Constitution, which requires an Act of Parliament to provide for funding of political parties to promote multi-party democracy, does not require funding of all political parties but permits the Legislature to establish reasonable threshold requirements for entitlement to funding; (4) A threshold requirement that political parties must receive at least 5% of total votes cast in the most recent general election to qualify for state funding is constitutional as it is rationally related to promoting multi-party democracy by encouraging serious political participation, preventing frivolous candidates, and ensuring accountability to voters; (5) Courts cannot order the repeal of legislation as this is a legislative function, though they may declare legislation constitutionally invalid; (6) The interests of justice test for direct access requires consideration of prospects of success, and applications with no prospects of success will be denied direct access.

Chief Justice Malaba made several notable observations: (1) He noted that pursuit of justice must be shown to be at the heart of every legal remedy sought from a court of law; (2) He emphasized the special position of the Constitutional Court in the scheme for protection of the constitutional order as the only court whose jurisdiction is specifically limited to constitutional matters; (3) He observed that direct access is an extraordinary procedure granted only in exceptional cases; (4) He noted that multi-party democracy is a political system in which multiple political parties participate in elections and have a chance to gain control of government, contemplating a political order permitting different groups to organize, promote views through public debate, and participate in free and fair elections; (5) He commented that formation of a political party is not an income-generating project and taxpayer money cannot be used to fund any upstart political party which may not be bona fide; (6) He observed that political parties occupy central stage in multi-party democracy and play a vital part in facilitating the exercise of political rights; (7) He noted the general principle on costs in constitutional litigation where the State is the successful party, resulting in no order as to costs against unsuccessful applicants.

This judgment is significant in Zimbabwean constitutional law for several reasons: (1) It clarifies the procedural requirements for direct access to the Constitutional Court, emphasizing that litigants must comply with the Constitutional Court Rules and not rely solely on section 167(5) of the Constitution; (2) It establishes that courts cannot issue interdicts against lawful conduct, particularly the performance of mandatory constitutional obligations by state officials; (3) It interprets section 67(4) of the Constitution regarding political party funding, holding that the Legislature has discretion in determining the mechanism for funding provided it rationally promotes multi-party democracy; (4) It upholds the constitutionality of threshold requirements for political party funding, rejecting the notion that all registered political parties are entitled to state funding merely by virtue of registration; (5) It reinforces the principle of separation of powers, holding that courts cannot order the repeal of legislation (a legislative function) but may only declare legislation constitutionally invalid; (6) It demonstrates the Court's approach to constitutional litigation involving the interests of justice test for direct access, particularly the requirement to show prospects of success.