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Special voting debacle prompts ZEC Constitutional Court application – Bill Watch 32/2013
Veritas
July 26, 2013

Special voting a debacle: Many unable to vote

Special voting on 14th and 15th July was not a success. Of the by ZEC authorised 63 268 special voters – this number was contested by MDC in court, but Judge President Chiweshe [Chairperson of the Zimbabwe Election Commission during the last elections and before he became a judge Brigadier General and the most senior army lawyer] dismissed the case. According to ZEC only 37 108 persons actually managed to vote. [See Bill Watch 31/2013 of 24th July for details of procedures to register for the special vote, the court case questioning the number of police applications, and description of the chaotic process and the reasons ZEC put forward for this.] ZEC claims 26 160 voters were unable to vote – in spite of some of the polling officers keeping the polling going in contravention to the Electoral Act until the next morning. Of this figure it cannot be ascertained how many did not turn up and how many came to vote and were unable to because of a failure in ZEC logistics.

ZEC’s response: Those turned away will vote on 31st July

ZEC’s immediate response was to issue a statement saying that ZEC would ensure that all authorised special voters who had been unable to vote on the special voting days of 14th and 15th July would still be able to exercise their vote on 31st July.

ZEC solution inconsistent with Electoral Act

MDC-T’s Secretary-General Tendai Biti promptly wrote to ZEC pointing out – correctly – that ZEC’s proposed action would be directly contrary to express provisions of the Electoral Act; he also threatened court action to stop ZEC acting as suggested. Section 81B(2) of the Act states “a voter who has been authorised to cast a special vote shall not be entitled to vote in any other manner than by casting a special vote in terms of this Part”; and section 81F(1) underscores this by making it a criminal offence for an authorised special voter to attempt to cast a vote “at an ordinary polling station ... whether or not he or she has cast a special vote at the same election”. [And section 5 of the Special Voting Regulations, SI 84/2013, gives practical effect to these provisions of the Act by laying down that once a special vote has been authorised by ZEC, the voter’s name must automatically be crossed out from the voters roll to be used on 31st July.]

ZEC meets political parties for discussions

On 22nd July ZEC met political parties to discuss the problem and it was agreed that there was a need to give all special voters who failed to vote through no fault of their own another chance to vote. [In Veritas’ view this question should not properly be put to political parties – it would subject any political party who would rather follow the correct election procedures to undue propaganda pressure if they were to disagree. This is exactly why there is law – so that laid down procedures are followed and are not open to political manipulation. It also raises the question of why this step was taken in this particular instance and not when ZEC – against the provisions of the constitution –decided not to allow prisoners, those in old age people’s homes, hospital patients and staff and the millions in the Diaspora to vote. See below on the legal rights of these groups of people to vote.]

ZEC said they would explore how to allow the disappointed special voters to vote legally, given the problem posed by the Electoral Act provisions and a apparent/alleged inconsistency between those provisions and the new Constitution’s statement of the State’s duty to ensure that every eligible voter has an opportunity to vote [section 155(2)(b)]. [ZEC’s scope is limited. Amending legislation is not a possibility – there is no Parliament, and the President cannot step in with amending regulations under the Presidential Powers (Temporary Measures) Act, because an amendment to the Electoral Act at this late stage is ruled out by section 157(5) of the new Constitution. A Commissioner addressing election observers at an official briefing has however, indicated ZEC’s determination to succeed in allowing disappointed special voters to have their votes “whatever the law says”.

ZEC application to the Constitutional Court

ZEC’s proposed solution was for its lawyers on 23rd July to lodge an application in the Constitutional Court for an order that will permit the casting of votes on 31st July by those members of the security forces and electoral officials who did not cast their special votes on 14th or 15th July.

Legal basis of the application

The application is based on ZEC’s admitted responsibility for the substantial failure of the special voting exercise and the disappointed voters’ blamelessness, and on provisions of the new Constitution, which:

• spell out both the right to vote and the State’s duty to honour that right: sections 67(3)(a) [“... every Zimbabwean citizen who is of or over 18 years of age has the right to vote in all elections ...”] and 155 [“The State must take all appropriate measures ... to ensure that ... every citizen who is eligible to vote in an election has an opportunity to vote and must facilitate voting by persons with disabilities or special needs”]
• in section 2 establishes the Constitution’s supremacy over all other law, including the Electoral Act, and not only states that the Constitution overrides any other law which is inconsistent with it, but also says this: “(2) The obligations imposed by this Constitution on the State are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Applicants and respondents

The application names two applicants: ZEC and its chairperson Justice Rita Makarau; and 20 respondents: the Commissioner General of Police, the Commissioner General of Prisons, the Commander of the Defence Forces, the GPA political parties, the President, the Minister of Justice and Legal Affairs, the Attorney-General, and 11 other political parties [meaning that every political party with candidates in the elections is cited].

Draft of the order sought by ZEC

The order which ZEC wishes the court to issue is as follows: “It is hereby ordered that the 1st applicant” [i.e., ZEC] “should take all necessary steps to ensure that its officers” [i.e., ZEC electoral officials] “and officers under the command of the 1st, 2nd and 3rd respondents” [i.e., police, prisons and defence forces personnel] “authorised to cast ballots in terms of section 81 of the Electoral Act who failed to cast their ballots on 14th and 15th July 2013, be allowed to cast their ballots on 31st July 2013.” ZEC, not surprisingly, does not ask for its legal costs to be paid by the respondents.

[Comment: This order they are requesting leaves far too much discretion to ZEC. It should be expanded to make it quite clear that the beneficiaries will have to vote in their own wards, if they possibly can. If ZEC intends to somehow run a second round of special voting, with people voting away from their own wards, that might cause unacceptable complications for the general poll, disrupt counting of votes and delay the announcement of results and lead to accusations of rigging.]

Hearing set for Friday 26th July

The Chief Justice has approved an urgent hearing of the application and it has been set down for Friday 26th July before the full Constitutional Court [nine judges].

Appeal to constitutional right for all Zimbabweans over 18 to vote

Opening a can of worms

1. The vote is being denied to an estimated four million Zimbabweans in the Diaspora in spite of the African Commission on Human and Peoples Rights earlier this year issuing a binding order instructing the Government of Zimbabwe to ensure that voters in the Diaspora could exercise their right to vote in the same way as Government officials stationed overseas, i.e., by postal voting. ZEC simply said it can’t be done and the Government has ignored the fact that the order is binding on Zimbabwe as a member of the AU. An attempt by the Diaspora to get the Constitutional Court to order enforcement of their right to vote, as endorsed by the African Commission, was dismissed. No reasons were given.

2. All prisoners under the new Constitution are entitled to vote. Surely it would not have been a huge logistical problem to take mobile voting vans to prisons?

3. Staff working in hospitals and their patients should have been enabled to vote.

4. Other groups of essential service workers – National Railways staff, ambulance staff, pilots, etc – should have been included in an entitlement to a postal vote.

There is a huge question not just of law but of legitimacy hanging over these elections. If the argument of a constitutional right to vote is used for one group of people for whom ZEC failed to provide adequately, while other groups have been completely denied, by both ZEC and the Constitutional Court, it may result in a spate of new law cases over the elections.

Another challenge to special voting from journalists

On 22nd July, two Herald journalists and the Zimbabwe Union of Journalists [ZUJ] filed an application at the Constitutional Court seeking a declaration that the Electoral Act’s special voting provisions discriminatory and therefore inconsistent with the new Constitution; and an order directing ZEC to them and all ZUJ members to cast their own “special votes” on 30th July, the day before voters in general go to the polls. They claim that journalists’ commitments will take them away from their constituencies on 31st July. This case will also be heard on 26th July.

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