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Possible implications of Constitutional Court giving special voters a second opportunity to vote - Bill Watch 33/2013
Veritas
July 29, 2013

Bill Watch 31/2013 of 25th July covered the special voting debacle and Bill Watch 32/2013 of 26th July covered the Zimbabwe Electoral Commission’s attempt to redress this by applying to the Constitutional Court for an order to permit special voters another opportunity to vote with other voters on the General Elections polling day of 31st July. This Bill Watch will cover the Constitutional Court response to ZEC’s urgent application.

The hearing

The hearing took place on Friday 26th July. Only the applicants [ZEC and its chairperson Justice Makarau] and MDC-T, one of the 20 respondents cited by the applicants [see Bill Watch 32/2013 for full list], were legally represented in court on Friday. The hearing was brief.

[Note: some of the smaller political parties listed as respondents had not been served with copies of ZEC’s application, as they should have been. The court condoned ZEC’s failure to serve copies of its application on these respondents on the basis that this had been impossible in the time available because physical addresses were not readily available!]

ZEC’s lawyer presented the applicants’ case, stressing that the officers concerned were constitutionally entitled to vote and that to apply the Electoral Act provision preventing them from voting on 31st July would disenfranchise them because of delays they did not cause. In these circumstances they should not be denied their constitutional right to vote by the application of a provision in an Act which they submtted must give way to the provision in the Constitution giving all citizens over 18 the right to vote.

MDC-T’s lawyer opposed the application. He argued that the entire special voting procedure had been flawed and should be nullified, and he questioned ZEC’s capacity to implement the logistics of what ZEC was proposing – i.e. a second chance for failed special voters – without the risk of double voting and further chaos come 31st July. He referred to evidence, in an affidavit by MDC-T deputy chairperson Morgan Komichi, of the discovery of special ballot papers in a dustbin near the ZEC National Command Centre by persons unknown [see Postscript at the end of this bulletin].

The Constitutional Court’s decision

The court’s decision came after a brief adjournment following the conclusion of the lawyers’ arguments. It granted ZEC’s application and issued an order which is an amended version of the draft order originally submitted by ZEC [see Bill Watch 32/2013].

The court order is as follows: [Note: explanations in brackets inserted by Veritas]:
“It is hereby ordered that the first applicant [i.e., ZEC] takes all necessary steps to ensure that its officers [this refers to ZEC electoral officials, temporary or permanent] 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 [Chapter 2:13] who failed to cast their ballots on 14th and 15th of July 2013, because of the unavailability of ballot papers be allowed to cast their ballots on 31st July 2013.”

Comment: It must also be said that the order, even with the amendment, is sufficiently loosely worded for different interpretations to be put on it. The significance of the words “because of the unavailability of the ballot papers” is not very clear – do they mean that those for whom there were special ballot papers available, but because of the queues [there were a limited number of special voting centres] could not vote by the time the centre closed [although some, contrary to the law, stayed open the following morning] should not have another chance to vote this coming Wednesday. And how is ZEC going to distinguish them, as all it will have are its lists of authorised special voters and ballot papers issued, and lists of ballot papers not used? This is not the only ambiguity in the court’s order [see below].

Where will the reprieved voters vote?

Although the order does not say where its beneficiaries may exercise their right to vote, ZEC’s lawyer told the Constitutional Court that ZEC will only allow them to vote in the ordinary way at polling stations in the wards in which they are registered as voters. If their duties take them elsewhere on the polling day, they will not be able to vote.

Comment: Presumably ZEC will stick to this assurance because if, despite the obvious administrative difficulties, these voters are allowed to vote anywhere they could swing the vote in critical close run constituencies where they are not registered. Also, it would be impossible, if they vote out of their own wards, to ensure that those not entitled to a second chance do not vote – it is only in their own wards that the necessary information will be available, because the voters rolls used in that ward’s polling stations on 31st July must have the names of those who have been given a special vote crossed out and marked “SV”. So ZEC will have had to ensure, before the voters rolls were delivered to the polling stations, that those who actually did vote remain crossed out and those that did not are restored. The question raised by MDC-T’s lawyer remains: will ZEC really be able to prevent confusion and double voting at the polling stations on polling day

How many voters will benefit from the decision?

Does this Constitutional Court decision mean that all or most of the claimed 26 160 disappointed special voters, mainly from the police force [Note the large number of police given the special vote was queried by the MDC-T in a High Court application that was dismissed by Judge-President Chiweshe] – but also some from other uniformed force members and ZEC officials –will in fact be able to cast their votes on 31st July? This would only be possible if their employers, the police and other uniformed force authorities and ZEC, were to make special arrangements to allow them to do so, such as redeployment to home constituencies or time off duty. This would cast into doubt the validity of their original applications for special voting, which were granted on the basis that every one of them would be out of his or her constituency on 31st July – every application to ZEC for a special vote by a police officer or other uniformed force member had to be accompanied by a certificate issued by or on behalf of his or her commanding officer stating that on 31st July “the applicant will be deployed to carry out security duties ... elsewhere than in the constituency in which the applicant is registered to vote” [Electoral Act, section 81C].

MDC-T court application to nullify the special voting

The MDC-T filed a Constitutional Court application on Friday 26th July to nullify the whole of the special voting exercise conducted on July 14th and 15th. Their case is based on the concessions made by ZEC, in the case seeking extension of the voting, that the special voting was marred by technical and administrative flaws. The case will be heard at 2 pm on Tuesday 30th July.

A contrast: Journalists’ application for early vote dismissed

Following its decision on the ZEC application the Constitutional Court went on to consider the application by two journalists and the Zimbabwe Union of Journalists [ZUJ] asking that the journalists and all members of ZUJ be allowed to vote a day early, on 30th July, if their assignments would take them out of constituency on the 31st July. Again the constitutional right to vote and the State’s duty to ensure an opportunity to vote for every eligible citizen were invoked. ZEC opposed the application.

A quick dismissal - Immediately after hearing submissions from the applicants’ lawyer, the court dismissed the application without calling on ZEC’s lawyer to respond – a course only followed when a court considers a case completely hopeless. It was literally “laughed out of court”, with the bench pointing out that the court had recently dismissed applications for special treatment from other groups not being catered for.

Reasons for decision not given - Announcing the court’s unanimous decision, the Chief Justice said that reasons for judgment would, if requested, be given later.

Question arising

ZEC and the Constitutional Court have promptly come up with a way to assist members of the security forces to have a second chance to exercise their constitutional right to vote on the basis that their inability to do so at the correct time was not their fault, but was rather attributable to ZEC’s and therefore the State’s failure to live up to their constitutional obligation to ensure they could vote as laid down by the Electoral Act.

But, what about all the others with cause for complaint? - There are much larger numbers of other Zimbabweans who can also justly claim that their right to vote in next Wednesday’s election has been frustrated, not by any fault on their part, but by the State’s failure – some would say, refusal – to give effect to its constitutional obligation to ensure that all eligible citizens are registered as voters and that every citizen who is eligible to vote has an opportunity to cast a vote [new Constitution, section 155(2)]. To reiterate the concern expressed in the last Bill Watch this court order could be opening the floodgate for court cases after the elections by:

• the many individuals who were not given a realistic opportunity to register as voters because of seriously inadequate coverage of the mobile voter registration exercise that ended on 9th July.
• the large numbers of so-called aliens, whose Zimbabwean citizenship by birth was confirmed by the new Constitution, but who were subjected to even greater difficulties when attempting, usually in vain, to get their citizenship status recognised as a prelude to registering as voters.
• voters who are in prison – the new Constitution gives voting rights to all prisoners, but ZEC does not cater for them at all.
• many others – workers in essential services, bed-ridden patients in hospital, etc –also unable to vote because they simply cannot get to a polling station. Yet other countries manage to cater for such people with postal voting, mobile polling stations and other facilities.
• those resident outside the country – who have a constitutional right to vote and to the provision of facilities to do so – but have been told that postal vote arrangements cannot be made for them to do so.

People in all these categories may consider the scramble to accommodate the special voters has favoured the privileged few while denying the vote to far larger numbers of people at least as deserving of consideration. This may lead, not only to a flood of litigation after the elections, but also to a denial of the legal and moral legitimacy of the elections.

Credibility of elections at stake

Many Zimbabweans will believe that the special vote story shows that the Constitutional Court’s decision in the Mawarire case, in which the court said the elections must be completed by 31st July, was bound to be followed by a rushed electoral process flawed by an insufficiently prepared ZEC and infringements of constitutional rights and of the Electoral Act – a process, in other words, running the risk of not producing results sufficiently credible to enjoy general acceptance in Zimbabwe, the region and the international community. And they will not have been reassured by the AU Commission chairperson Nkosazana Dlamini-Zuma’s statement on Friday that the AU “is confident that ZEC will be able to run a credible election”.

Postscript: Fall-out from the special voting

Police arrested MDC-T deputy chairperson Komichi early on Sunday 28th July. This followed his handing to ZEC’s Chief Elections Officer on 25th July of special voter ballot papers, marked in favour of MDC-T candidates and ZEC special voter envelopes, which he said had been brought to him after being found in a dustbin at the ZEC National Command Centre in Harare. In the Sunday newspapers ZEC published a press statement headed “Complaint against Mr Morgan Komichi of MDC-T”, registering its concerns about Mr Komichi’s handling of the matter, including his opening of a tamper-proof ZEC special voter envelope and the two-day delay in his going to ZEC. The statement said ZEC, having investigated, was “clear that the ballots were not marked by the voter” and ended: “The story given to us by Mr Komichi is not credible and accordingly we have severe reservations regarding the details be provided to the Commission. We have therefore handed over the matter to the Police for investigation”. The ZRP chief spokesperson said that as long as Mr Komichi continued refusing to identify the person who gave MDC-T this material, he would be held accountable and regarded as “the prime suspect”.

Mr Komichi, is now in remand prison as bail was opposed by the State, although he is a Deputy Minister in the present government and was a Senator in the last Parliament and as MDT Director of Election is hardly likely to skip the country. The magistrate’s decision on his bail application will be given in the magistrate’s ciourt 6 on Tuesday at 10 am.

Comment: It is against the principle of natural justice

• that ZEC can publish their interpretation in the press while the accused cannot
• to detain an accused person pending investigations – not after investigations, and, if press sources are correct, to detain him until he reveals the name of his source of information
• to arrest a complainant without investigating whether his complaint is valid.

Questions?

1. Will the ZEC reaction to Mr Komichi’s complaint be a deterrent to others, who may have evidence of malpractice or be told about it from another source, from coming forward to ZEC for fear of being arrested or getting someone else arrested rather than the truth of the story being investigated?
2. As Mr Komichi is the Director of Elections for MDC-T would it be surprising if his party sees this as a deliberate act of sabotage by its political opponents?

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