JUSTICE IN ZIMBABWE
79
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deliberately in order to gain an unfair advantage over him in the presidential election.
If these arguments were valid, then the President was acting illegally in violation of
the applicant’s clear constitutional right to protection of the law. Such violation would
obviously prejudice him in the election. The applicant was therefore entitled to a
ruling from the Supreme Court about the legality or otherwise of the purported last
minute changes to the electoral laws made by the President before the election. The
Supreme Court was duty bound to rule on the merits. As the laws being challenged
were passed just before the election and the matter could only be placed before the
Supreme Court at the eleventh hour before the election was to be held, the Supreme
Court should have treated the case as one of extreme urgency. It should have handed
down its judgment as quickly as possible and, if necessary, have given its verdict with
the full reasons to follow later. There is no doubt that the Supreme Court composed of
the judges who were sitting when Mr Justice Gubbay was still Chief Justice would
have had no hesitation in finding that the applicant had legal standing in this matter,
as Sandura JA indeed found.
Apart from protection of law, it would have been relatively easy for a court that was
not intent on excluding the case on an artificial basis, to have found that there was
legal standing on the basis of the freedom of expression provision. The right of
freedom of expression includes the right to receive and impart information without
interference. An election is one of the most important ways in which the electorate
can express its will. The distortion and manipulation of the electoral process violates
this free expression of electoral will. The main opposition candidate in an election has
himself a right to expect that voters will be able to express themselves in a free and
fair election. Thus he should be taken to have a right to take legal action to ensure that
his and the electorate’s rights are not violated. As Sandura JA said in his dissenting
judgment, the Supreme Court should, as it had done previously, have adopted a broad
approach to legal standing in a case of this nature in order to determine the real issues
raised where the applicant has a real and substantial interest in the matter. This was
particularly the case here, as the election was on the verge of taking place and even if
someone could have been found who satisfied the exacting requirements for legal
standing set by the majority of the Supreme Court, it would have been too late to take
the matter back to court before the election. It was clearly of great importance that
there should be a ruling in this case before the elections took place.
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