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implications of Constitutional Court giving special voters a second
opportunity to vote - Bill Watch 33/2013
July 29, 2013
Watch 31/2013 of 25th July covered the special voting debacle
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.
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.
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!]
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.
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].
Constitutional Court’s decision
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.”
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].
will the reprieved voters vote?
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
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
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].
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.
Journalists’ application for early vote dismissed
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.
decision not given - Announcing the court’s unanimous decision,
the Chief Justice said that reasons for judgment would, if requested,
be given later.
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
- 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
- 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.
of elections at stake
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”.
Fall-out from the special voting
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”.
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.
is against the principle of natural justice
- that ZEC
can publish their interpretation in the press while the accused
- 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.
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
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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