via ZEC and the legal framework for voter registration – Nehanda Radio Oct 14 2014
In my opinion, it is arguable that ZEC (Zimbabwe Electoral Commission) is wrong to say that there is no legal framework for the registration of voters. ZEC has the power under section 239 of the Constitution to register voters and to compile voters’ rolls and registers.
Dr Alex Magaisa (adviser to MDC president Morgan Tsvangirai) and lawyer Chris Mhike going entering the courts
Dr Alex Magaisa (then adviser to MDC president Morgan Tsvangirai) and lawyer Chris Mhike entering the courts
Section 155 of the Constitution places an obligation on the State “to take all appropriate measures, including legislative measures … to ensure that all eligible citizens … are registered as voters”. The right to vote and is protected by section 67 in the Declaration of Rights. Since it can only be exercised if a person is registered, it is arguable that the State’s failure to register a voter is a violation of his rights under section 67.
Prior to the new Constitution, the Electoral Act placed the mandate for voter registration on the Registrar of Voters, who was also the Registrar-General. The Electoral Act provides the legal framework for voter registration. Now, however, this power is constitutionally given to ZEC in terms of section 239.
Section 157 of the Constitution requires an Act of Parliament to provide for electoral matters including voter registration. ZEC is now saying that it does not have the legal framework for voter registration and, therefore, it cannot perform its constitutional mandate. They say that there is a vacuum, caused by the lapse of the Registrar of Voters’ powers and the alleged failure by the State to introduce a legal framework for ZEC to carry out its duties.
This is very odd and makes little legal sense. Number one, the Parliament of Zimbabwe recently passed the Electoral Amendment Bill, which was then signed into law by the President. It is inconceivable how that amendment, which was initiated by the Ministry of Justice, omitted provisions on voter registration.
If it did, then both the Ministry of Justice and ZEC (collectively, the State) failed in their constitutional duties under section 239 and 157, which requires ZEC to be consulted before any amendments are made. How could they have missed the exclusion of a legal framework that defines one of its new and critical mandates – that of voter registration? Observers might think that the omission was deliberate.
Nevertheless, here is why we argue that there is, in fact, no vacuum in regard to the legal framework for voter registration. When a new Constitution is enacted, care is taken to ensure that a legal vacuum is not created between the old laws, which may fall foul of the new Constitution and the new dispensation.
This is done by ensuring that a new constitution does not mean the end of all existing laws. Crafters of a new constitution do so by including a “savings” clause, which, as the name suggests, saves existing legislation and ensures continuity. This means that all legislation that would have been in force before the new Constitution continues to operate.
Otherwise, there would be a huge legal vacuum which can lead to chaos and instability. This “savings clause” can be found in section 10 of the Sixth Schedule of the Constitution. It reads as follows:
“Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution”.
The legal effect of this clause is that the old laws continue in operation until they are amended or struck down by the Constitutional Court. This is why the criminal defamation laws continued to operate after the new Constitution until they were recently declared unconstitutional by the Constitutional Court. Likewise, the provisions of the old Electoral Act continued to operate until they were amended by Parliament this year.
Now, those provisions had a legal framework for voter registration. However, that power was exercised by the Registrar of Voters. Clearly, after the new Constitution was passed, the Registrar of Voters no longer had the powers to register voters. However, the long continued in operation until it was either amended by Parliament or struck down by the Constitutional Court. For that reason, while under the Constitution it was ZEC that had the powers to register voters, the Electoral Act still gave that power to the Registrar of Voters. Unless Parliament moved to amend the Electoral Act or unless someone challenged it at the Constitutional Court, it was perfectly legitimate for any person seeking registration, to comply with that Electoral Act by applying for registration at the Registrar of Voters’ office.
In the Gono case, ZEC has usurped the power of the Constitutional Court and made a judgment not only on the constitutionality of the Registrar of Voters’ conduct, but also, on the existence of a legal framework for voter registration. In my opinion, ZEC has overstepped its mandate.
It is not its job to determine whether or not laws or legal frameworks have expired. That is a job for the courts to do. If it has a problem with the Registrar of Voters using powers that it believes it does not have, then it could have approached the Constitutional Court to have those powers struck down and it is up to that court to determine the existence or otherwise of a legal framework for voter registration using the “savings clause” for interpretation.
In my opinion, as long as the Electoral Act’s provisions on voter registration have not been amended, a person who is registered by the Registrar of Voters has a prima facie case that he or she is legally registered unless someone successfully challenges that in a court of law.
To sum it up, the legal framework for voter registration did not expire simply because the new Constitution was created giving powers to ZEC to register voter. Whatever legal framework which existed under the Electoral Act remained valid in terms of the “savings clause” under the Sixth Schedule of the new Constitution.
Those powers remained valid until amended by Parliament or they were struck down by a court of law. And if a court of law were called upon to interpret the provisions, it would do so in conformity with the new Constitution. And if it did, it would simply recognize that the powers formerly exercised by the Registrar of Voters were now to be construed as being exercised by ZEC. ZEC cannot legitimately claim that it does not have a legal framework for voter registration.
Dr Alex T Magaisa studied law at the University of Zimbabwe (LLB) and the University of Warwick (LLM & PhD) in Great Britain. He is a former adviser to the then Prime Minister Morgan Tsvangirai. Dr Magaisa has worked at the University Warwick, the University of Nottingham and is presently based at Kent Law School, the University of Kent.
You can visit his blog: NewZimbabweConstitution.wordpress.com. You can email him on waMagaisa@yahoo.co.uk
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