COURT WATCH 14/2013

COURT WATCH 14/2013

[5th September 2013]

Pre-Referendum and Pre-Election Challenges

Part IV – Voting Rights, Postal Voting and Voters Roll Cases

Part I [Court Watch 11/2013 of 15th August] of this series covered the dismissal by the courts of cases challenging the short notice and handling of the Constitutional Referendum of 16th March

Part  II [Court Watch 12/2013 of 3rd September] covered Constitutional Court cases applying for an extension of the election date.

Part III [Court Watch 13/2013 of 4th September] covered pre-election cases complaining about the nomination process for the harmonised elections and a case raising the issue of State funding for political parties not represented in Parliament.

This bulletin, Part IV, covers cases taken to the Constitutional Court and the High Court on voting rights and special voting.  All the cases bar one were dismissed and the one successful case asking for electronic copies of the voters roll has still not been complied with

Note: Unless otherwise indicated, references to the Constitution are to the new Constitution, the relevant provisions of which came into operation on 22nd May, as explained in Constitution Watch 29/2013 of 22nd May.

Voting Rights of Zimbabweans in the Diaspora

Tavengwa Bukaibenyu

v

ZEC, Registrar-General of Voters, Ministers of Constitutional and Parliamentary Affairs and of Justice and Legal Affairs

The applicant is a citizen of Zimbabwe by birth, currently residing in South Africa for economic reasons.   He is a registered voter.  He lodged an application in October 2012 at the Supreme Court, which at that time was empowered by the former Constitution to handle direct applications on constitutional issues, to enforce his right to vote from outside the country.  He cited section 23A of the Constitution, added by Constitution Amendment No. 19 in early 2009, which gave every adult Zimbabwean the right to vote in referendums and elections.  However, he was prohibited from voting from outside Zimbabwe by the continued residence requirement in section 23(3) of the Electoral Act, and by the fact that the postal voting provision in section 71 of that Act only benefited servicemen, election officers, and civil servants deployed abroad, as well as their spouses.  He argued that he could not be excluded from exercising his constitutional right to vote on the basis of exclusionary provisions in an Act of Parliament that were inconsistent with the Constitution.  He submitted that these provisions should be struck down or amended to allow for an inclusive approach, ensuring that all citizens could enjoy their constitutional right to vote.

As the case had not been dealt with by the 22nd May, it became the responsibility of the newly constituted Constitutional Court.  The case was set down for hearing in the Constitutional Court on 4th July 2013.  Advocate David Ochieng represented Mr Bukaibenyu.  The State opposed the application, arguing that there were insufficient resources to set up a system for citizens to vote from the Diaspora.

Application Dismissed

After hearing argument from both sides, the court, apparently accepting the State’s argument, dismissed the application.

Written judgment

Reasons for judgment have not yet been released.

Comment:  This decision is at odds with the provisional ruling handed down in February 2013 by the African Commission on Human and People’s Rights in the case of Gabriel Shumba and Others, represented by Zimbabwe Lawyers for Human Rights v Republic of Zimbabwe.  This case was brought by Zimbabweans in the Diaspora to establish their right to vote from the Diaspora.  The ruling ordered Zimbabwe to allow Zimbabweans living abroad to vote in the Referendum of 16 March 2013 and the general elections thereafter, whether or not they are in the service of the Government, and to “provide all eligible voters the same voting facilities it affords to Zimbabweans working abroad in the service of the Government”, i.e., by postal vote.  According to the African Commission’s rules of procedure a provisional ruling is binding pending final determination of the case.

Other sectors of the population – such as prisoners, workers in essential services [railways, hospitals, power stations], residents in old age homes, patients in hospitals, clinics etc. were also excluded from participating in the elections as no arrangements were made for them by ZEC. Section 155(2)(b) of the Constitution obliges the State: to “ensure that every citizen who is eligible to vote in an election has an opportunity to cast a vote”

Journalists’ Bid for Early Voting Privileges

Michael Kudakwashe Chideme, Zvamaida Murwira and Zimbabwe Union of Journalists

v

ZEC, the President, the Minister of Justice and the Attorney General

The application was filed in the Constitutional Court on 19th July, twelve days before polling day.  The applicants argued that their right to vote in terms of section 175 of the Constitution would be breached if they were not granted an opportunity to cast their vote before 31st July 2013 under a special voting procedure.  The individual applicants claimed that they and other members of the Zimbabwe Union of Journalists who were registered voters, would be deployed in various areas on polling day and as a result would not be able to vote in their own constituencies. They accordingly requested the court to grant an order compelling ZEC to grant the applicants, and all ZUJ members, a special vote in terms of section 81 of the Electoral Act by allowing them to vote on the 30th July, a day before the proclaimed polling day.

Application Dismissed

The application was heard and dismissed on 26th July.

Written judgment

Reasons for judgment have not yet been released.

High Court Case to Nullify Special Voting

MDC-T

v

ZEC

On 14th July, the MDC-T filed an urgent application in the High Court to nullify the early special voting exercise for members of the uniformed forces, scheduled for 14th and 15th July.  The MDC-T contested the number of attested members of the Zimbabwe Republic Police who had been accepted by ZEC as qualifying to cast their votes in terms of the special voting procedure prescribed by section 81 of the Electoral Act.  The MDC-T argued that the figure of 69 222 police officers which had been presented by the police, and accepted by ZEC, was inflated when compared to the 44 113 confirmed by the Ministry of Finance as being on the official police payroll.  In addition to seeking an order to have the special voting process nullified, MDC-T also, once the hearing was delayed, wanted ZEC to provide them with a list of all the officers who had cast their vote during the special voting exercise, and a copy of the voters roll for the special voting.

The case was heard on 17th July in chambers and under conditions of secrecy – and the lawyers involved were told not to divulge information on the case. Justice Chiweshe directed the Attorney-General to investigate and report back to the court on the number of police officers in the country, and this was apparently done.

Application Dismissed

On 19th July 2013, Justice Chiweshe dismissed the application.

Written judgment

Reasons for judgment have not yet been released.

Comment:  Although the special voting went ahead, ZEC turned out to be inadequately prepared for it and as a result over 40% of the authorised special voters were unable to vote on the two special voting days.  The Constitutional Court hastily granted ZEC’s application for it to allow frustrated special voters to vote with other voters on 31st July, notwithstanding an Electoral Act provision expressly prohibiting this.  Whether or not ZEC could and did ensure that this remedy did not result in double voting remained an unanswered question, and therefore a cause for complaint about the reliability of the poll.

Case to Force ZEC and Registrar-General to Produce Voters Roll

MDC-T

v

ZEC

Section 21 of the Electoral Act obliges ZEC, within a reasonable period of time after nomination day, to provide every nominated candidate with a free electronic copy of the constituency voters roll in a format that “allows its contents to be searched and analysed”; and, for a fee, a printed copy of the voters roll.  When this provision had not been complied with by late afternoon on 30th July, the eve of polling on 31st July, MDC-T went to the High Court for an order compelling ZEC to comply immediately.  ZEC pleaded inability to supply the electronic roll because of a “technical fault”.  The court ordered ZEC to supply the printed roll by midnight that day and the electronic roll as soon as it was able to.  Printed copies were made generally available to candidates on the eve of polling day.  The court order to supply the electronic copies of the rolls was not complied with.  The absence of an up-to-date electronic copy of the voters roll is a major complaint of those dissatisfied with the poll result.

Note: the order to supply the electronic voters roll has still not been complied with – thus hampering candidates who have lodged election petitions challenging the results.

This is the last of the series of pre-election court cases.

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