- ZIMBABWE ELECTORAL COMMISSION (2) THE CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION
THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE & 19 ORS
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA,
GWAUNZA JA, GARWE JA, GOWORA JA,
HLATSHWAYO JA, PATEL JA, & CHIWESHE AJA
HARARE, JULY 26, 2013 & MARCH 26, 2014
T Kanengoni and C.Nyika, for the applicants
F Chimbaru, for the first, second, third, ninth, tenth and eleventh respondents
S Hwacha and T Zhuwarara, for the fourth respondent
ZIYAMBI JA: At the end of the hearing of this matter the following order was issued:
“IT IS ORDERED THAT:
1st Applicant takes all the necessary steps to ensure that its officers and officers under the command of the 1st, 2nd, and 3rd Respondents, authorised to cast ballots in terms of section 81 of the Electoral Act [Cap 2:13] who failed to cast their ballots on the 14th and 15th of July 2013 because of the unavailability of ballot papers, be and are hereby allowed to cast their ballots on the 31st of July 2013.”
Below are set out the reasons for this order.
On 13 July 2013, the President of Zimbabwe who is the ninth respondent herein issued a proclamation, in terms of s 58 of the Constitution of Zimbabwe, setting the polling date for the 2013 general elections as 31 July 2013. In terms of the proclamation, SI 86/2013, the first applicant was enjoined to set aside two (2) days for the holding of the special voting process provided for in Part X1VA of the Electoral Act [Chapter 2:18] (“the Act”), the last of which must be at least sixteen (16) days before the date set for the holding of the general elections namely, 31 July 2013.
In compliance with the proclamation, the first applicant duly set 14 and 15 July 2013 as the days for the special voting exercise and invited the disciplined forces as well as officers of the first applicant to apply to cast a special vote. A total of 63 268 successful applicants were authorised to cast a special vote. However, due to certain logistical constraints, the first applicant was unable to post the requisite ballot paper to each successful special voter within the time frame fixed for the special vote with the result that 26 160 applicants (representing 41.3% of the successful applicants for the special vote) were unable to cast their special votes.
The applicants averred that, conscious of their duty inter alia, to conduct elections efficiently, freely, fairly, transparently and in accordance with the law, they then issued a press statement advising that those who had not been able to cast their special votes would be able to vote in the general elections on 31 July 2013.
The press statement sparked two complaints. The first was from the Secretary General of the fourth respondent, the Movement for Democratic Change– T (“the MDC-T”). He wrote to the second applicant advising that the proposed action would be illegal in that s 81B (2) of the Act disentitles a successful applicant for a special vote from voting in any other manner than by casting a special vote.
The next complaint was from the first respondent, the Commissioner of the Zimbabwe Republic Police. His concern was in respect of members of the police force who were successful applicants for special votes and who had been denied the opportunity to cast their special votes on the days set aside for special voting. His letter read in relevant part:
“The Constitution in section 239(g) places an obligation on Zimbabwe Electoral Commission (ZEC) to design, print and distribute ballot papers, approve the form of and procure ballot boxes and establish and operate polling stations. Quite clearly therefore the failure by the State to put in place the necessary measures as envisaged by sections 155(2)(b) and 239(g) of the Constitution can be deemed an impingement of the right to universal suffrage.
I, on behalf of the officers and members who could not cast their vote, therefore seek in terms of section 239(k) of the Constitution recourse with ZEC. Section 239(k) of the Constitution empowers individuals who have failed to cast their vote on dates specified in line with the Act to seek recourse with ZEC.
On the other hand section 81B(2) of the Electoral Act provides that a voter who has been authorised to cast a special vote shall not be entitled to vote in any other manner than casting a special vote in line with the provisions of the Act. It is trite law that where there is apparent conflict between the Constitution and Ordinary law, the Constitution takes precedence because the Constitution is the grundnorm or master rule against which all other laws are measured for validity.
It is therefore in the spirit of the provisions of section 239(K) of the Constitution and a Public Notice that ZEC put in the press regarding this subject matter that I am appealing to your esteemed office to give us a written commitment that all our officers and members who were unable to cast their vote will be catered for to ensure that they are not disenfranchised.”
The applicants were, so they averred, faced with the dilemma that their compliance with the law and specifically with s 81B (2) of the Act would, in essence, facilitate the undue deprivation of the rights provided in terms of s 67 of the Constitution to the 26 160 special voters who failed to cast their votes on 14 and 15 July 2013.