By-elections illegal without voters’ roll

via By-elections illegal without voters’ roll – DailyNews Live 25 January 2015

KENT – The Zimbabwe Electoral Commission (Zec), the constitutional body that runs elections in the country, must surely be in some discomfort, after President Mugabe called by-elections in two constituencies, as he is required to do by the law.

Section 158 of the Constitution of Zimbabwe demands that parliamentary by-elections be held within 90 days of a vacancy arising.

These by-elections follow the declaration of two vacancies in the National Assembly, which arose by operation of law, in terms of section (s) 129(1)(c.) of the Constitution.

This provision states that an MP’s seat becomes vacant when he or she is appointed as Vice President (VP).

Based on this provision, the seat that was held by former VP Joice Mujuru, became vacant more than a year ago, on September 11 2013, when she was appointed VP.

Failure to declare that seat vacant and to call by-elections was a clear breach of the Constitution, whose acknowledgement became inevitable and unavoidable, although no-one has apologised for it. The other vacant seat is the one that was held by the new VP Emmerson Mnangagwa, who was appointed to his new station on 9th December 2014.

Under ordinary circumstances, this would be a simple matter of Zec getting on with its job of organising and preparing for the by-elections. But as I demonstrate in this article, they got themselves in a rather messy situation and they must now deal with the consequences.

In terms of s. 239(a) of the Constitution, Zec has the mandate to run elections and “to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law”. Under paragraphs (b) to (d) of s. 239, Zec also has the following functions:

• to register voters;

• to compile voters’ rolls and registers; and

• to ensure the proper custody and maintenance of voters’ rolls and registers.

These are critical electoral functions that used to be performed by the Registrar General, in his capacity as the Registrar of Voters. That man is Tobaiwa Mudede, the long-serving civil servant who has occupied the office of Registrar General for as long as anyone can remember.

Under his charge, the voters’ roll has been the subject of serious criticism for various irregularities and shortcomings. Even election observers reporting on the July 31 elections raised concern over the state of the voters roll. There was a lot of controversy over the voters’ roll in the run-up to and after the July 31 2013 elections.

The Registrar of Voters failed, refused and or neglected to provide the electronic voters’ roll to the parties and candidates before polling day, contrary to the requirements of the Electoral Law. The Electoral Law states that candidates and parties can request and must be provided, free of charge, electronic copies of the voters’ roll. They can request hard copies if they wish, but they must pay a prescribed fee, obviously to cover the costs of printing. Electronic copies are free presumably because there are no printing costs involved.

It is the electronic copy of the voters’ roll that is essential and more useful for the obvious reason that it is easier to search and analyse, compared to the hard copy version. Indeed, the Electoral Law makes it clear that the electronic copy of the voters roll must be “searchable and analysable”.

Yet the Registrar-General repeatedly failed, refused and or neglected to provide the electronic copy of the voters’ roll upon request. He sent a large truck towards the end of the polling day, with scores of boxes containing hard copies, and by then, it was pointless. Applications were made to the courts of law and orders were granted, compelling Mudede to provide the electronic copies of the voters’roll. But still, he would not budge. He claimed that his computing system, which allegedly held the electronic copy of the voters roll was broken.

Later, a court order gave him an escape route. It stated that he was compelled to deliver the voters’ roll, but only when his computing system was fixed! Of course, this did not make much sense – it merely allowed Mudede to avoid providing the voters’ roll and he would not breach the order for as long as he could say that the computer was still broken. Hence it is that almost two years since that election, the electronic copy of the voters’ roll is nowhere to be seen and yet to be delivered.

It is this secrecy and lack of transparency over the voters’ roll that gave rise to widespread suspicions by the disgruntled, that the voters’ roll had been an integral part of a sophisticated election rigging system. Why else would the system continue evading requests for an electronic copy of the voters’ roll? — People ask. It is a legitimate enquiry.

There are currently two cases pending before the courts of law in which litigants are demanding that the Registrar of Voters and or Zec must provide the electronic copy of the voters’ roll. One is an application by lawyer, Justice Mavedzenge and another is led by Zapu and its leader, Dumiso Dabengwa. There was a third case, over which the role of the Registrar-General and Zec regarding voter registration and the voters roll was called into question. This was the case of former central bank Governor, Dr Gideon Gono.

Dr Gono had been nominated and accepted by the politburo of Zanu PF to be the replacement candidate to fill the Manicaland Senate seat left vacant upon the death of Senator Kumbirai Kangai. But for Dr Gono to be confirmed by ZEC as the duly nominated candidate, he had to be registered as a voter in Manicaland. Dr Gono claimed that he had been duly registered by the Registrar-General in December 2013. ZEC decided that this registration was null and void, since the Registrar-General no longer had the power to register voters. Mudede himself later admitted that he was no longer responsible for the voters roll since that role was given to ZEC under the new Constitution. That, indeed, is the correct position.

It is correct because the Registrar-General’s role ended after the first elections under the new Constitution. Under s. 6(2) of the Sixth Schedule of the Constitution, the Registrar-General was given limited responsibility under the supervision of the ZEC, for registering voters and compiling voters’ rolls for purposes of the first elections. This meant that his role ended after the successful, if controversial, conduct of those elections on July 31.

This means Zec assumed the powers over voter registration, compilation and maintenance of the voters roll in terms of the Constitution. This much, Zec has admitted, through its chairperson, Justice Rita Makarau. They have admitted that they now have the powers over the voters roll and registration of voters.

However, in justifying their inability to perform their duties including providing an electronic copy of the voters roll and in particular, their refusal to register Dr Gono as a voter in Manicaland, Zec also declared their impotence, arguing that while the Constitution gives them the power, the relevant legislation to operationalise this does not yet exist. So they said they could not register Dr Gono, even if they wanted to. They said they did not have the legislation to enable them to do that.

I thought they were wrong and I still think they were wrong but they denied themselves this power which they have under the Constitution, the supreme law of the land. I will give just one reason why Zec were wrong and why, if they really wanted to, they could have exercised their constitutional powers to carry out voter registration and compile the voters’ roll and therefore, register Dr Gono.

There is a little-used provision tucked somewhere towards the end of the Constitution. That provision is s. 342 and it deals with the exercise of functions powers conferred by the Constitution.

First, it states in s. 342(1) that, “a power, jurisdiction or right conferred by this Constitution may be exercised, and a duty imposed by this Constitution must be performed, whenever it is appropriate to do so”. The power in question here is the power that Zec has to register voters and to compile the voters’ roll. The duty here, which must be performed by Zec, is the duty to register voters. Is it appropriate to exercise this power or to perform this duty? It most certainly is.

Second, it states in s. 342(2) that, “all institutions established by this Constitution have all powers necessary for them to fulfil their objectives and exercise their functions”. I must emphasise, “all powers necessary for them to fulfil their objectives and exercise their functions”. This scope of powers conferred here is very broad. In other words, reading this clause, ZEC cannot shirk responsibility over voter registration and the voters’ roll simply because the Electoral Law has been not amended merely to say what the Registrar-General used to do is now to be performed by Zec. Zec cannot feebly declare their impotence and stop the crucial process of voter registration when the Constitution affords them all powers necessary for them to fulfil their functions.

Finally, there is s. 342(3), which states that “where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well”. This is an even better and more powerful provision in this case because it confers implied powers upon Zec. This means for example, if Zec has been given the power to register voters, to compile the voters roll, etc, surely the power to set up the framework and machinery to carry out these powers is reasonably implied as well.

Zec will probably complain that even they have the constitutional powers, they do not have the staff to carry out these functions. The Registrar-General was able to make use of staff in his department, which is large. If that is the case, then Zec should be advising the President that they are in no position to run a credible election because they do not have the necessary resources to carry out that task. They cannot pretend that they are preparing for by-elections when they do not even have the voters’ roll, which is a necessary component of the electoral machinery.

They are presently in a legal cesspool, for how do they now claim to have the power over voter registration and the voters’ roll that only a couple of months ago they were saying they did not have?

But I must also criticise the failure of the system in the amendments to the Electoral Law. How did the entire system miss the omissions in the Electoral Bill?

Somehow, while the Electoral Law is one of the few, if not the only law that has been amended since the new Constitution came into force, for an unknown reason, it did not include crucial provisions on voter registration and the voters’ roll. This omission is not only incredible but a clear demonstration of serious neglect of duty on the part of the responsible ministry, Parliament and Zec.

In fact, it’s a case that demonstrates a serious systems failure because, how could it possibly have gone past all the relevant institutions, including even the Parliamentary Legal Committee, which is charged with the responsibility of checking the constitutionality of all Bills? Auditing that Bill would have required a clear check-list on what the Constitution provides for regarding elections and then determining whether or not the Bill’s provisions accommodated or otherwise dealt with the constitutional requirements. The voters’ roll and voter registration are such essential and critical aspects of the election process that their omission from the Bill ought to have been spotted.

Zec itself cannot escape culpability for the failure to spot the omission. S. 157(4) of the Constitution provides that,

“No amendments may be made to the Electoral Law, or to any subsidiary legislation made under that law, unless the Electoral Commission has been consulted and any recommendations made by the Commission have been duly considered”.

This means Zec should have been consulted before the Electoral Law was amended and given that one of their new mandates was to register voters and to compile and keep the voters’ roll, it is to reasonably expected that Zec officials should have spotted the glaring omission in the Bill. In jurisdictions where governmental duty is taken seriously and where failure to execute duty carries consequences, some very senior people would take responsibility and the consequences of failure.

Claiming that they were not consulted is unhelpful because it only suggests another breach of the Constitution because as we have seen, it requires Zec to be consulted before any amendments to the Electoral Law.

Nevertheless, the fact is that they did not and for that reason, they claim that because the Electoral Law does not provide for their role in voter registration and the voters’ roll, therefore, they are unable to do anything about these processes. They cannot register new voters and they cannot compile or keep or indeed provide the voters roll to those who demand it. It is this reason they used to refuse to register Dr Gono as a voter in Manicaland, which would have opened his path to become Senator in that province.

It is the same reason they use to say they cannot provide the electronic copy of the voters’ roll to Mavedzenge or Zapu or Dabengwa. Yet in putting forward that position and denying responsibility for the voters’ roll allegedly because the Electoral Law is allegedly deficient, they have placed themselves in a legal labyrinth.

For what are they to do, now that President Mugabe has called by-elections, to be held on March 27 and for which a Nomination Court must sit sometime soon? A voters’ roll is required for these purposes. You cannot conduct a Nomination Court for candidates without the voters roll. It is the voters roll that determines whether or not a candidate and the persons who are signing the nomination papers are qualified to do so.

Further, there must be new persons who may have moved into the constituency or youths who may have become eligible to vote, having turned 18 in the last year and half since the last election. They have rights under s. 155(2)(a) to be registered as voters in these by-elections. That provision states that the State “must ensure that all eligible citizens, that is to say the citizens qualified under the Fourth Schedule, are registered as voters”. Further, s. 67 in the Declaration of Rights, states that, every Zimbabwean citizen who at least 18 years old has the right to vote in all elections and to stand for election for public office and, if elected, to hold such office.

All this implies that Zec has not only got an obligation to maintain and provide the voters’ roll but also to carry out voter registration. But how does Zec do all this when it has repeatedly denied this capacity all along allegedly because the Electoral Law does not have the relevant provisions? Since the Electoral Law has not yet been amended to provide for Zec’s role on voter registration and the voters’ roll, under what authority is Zec preparing the voters’ roll for purposes of the by-elections?

Have they informed the President that they cannot run the election because they have no control over the voters’ roll?

For surely, they cannot, in the cases of Mavedzenge, Dabengwa and Zapu and Gono claim that they have no power to register voters or deny control of the voters roll, and at the same time, claim to be properly and lawfully preparing for the by-elections with a voters’ roll, in the absence of amendments to the Electoral Law.

I suspect we might see yet another deployment of the hideous Presidential Powers (Temporary Measures) Act, a law that is arguably no longer constitutional, but was used nevertheless, to unlawfully and unconstitutionally amend the Electoral Law before the July 31 elections two years ago. This will be most unfortunate, just as it was then.