ELECTION WATCH 15/2018
25th May 2018
Court Challenge to Enable Wider Provision of Voter Education
In December last year Veritas filed an application in the High Court for an order declaring that sections of the Electoral Act which give the Zimbabwe Electoral Commission [ZEC] a virtual monopoly over voter education are unconstitutional. Veritas is bringing the case as a public interest case.
At issue is freedom of expression, perhaps the most important of all freedoms that guarantee democracy.
The Provisions of the Electoral Act
Veritas is challenging the constitutionality of two sections of the Electoral Act.
1. Section 40C, which allows ZEC and its agents and political parties to provide voter education, but prohibits anyone else from doing so unless they comply with stringent conditions:
- They must be citizens or permanent residents, or associations of citizens or permanent residents.
- In the case of associations, they must be registered under the Private Voluntary Organisations Act or in the Deeds Registry and must be mandated by their constitutions to provide voter education.
- The voter education must be funded solely by local contributions or donations and must be provided free of charge.
- The voter education must be conducted in accordance with a course or programme approved by ZEC. The documents and other materials used to provide voter education must be given to ZEC for its scrutiny at least 28 days before they are used, together with the names, addresses and citizenship of the people who are to give it and details of the sources of funding for its provision.
2. Section 40F, which states that foreign funding for voter education must be channelled through ZEC. This challenge falls away, however, because after Veritas filed its court papers the Electoral Amendment Bill that recently passed through Parliament was amended to repeal section 40F. If the President signs the Bill into law – and there is no reason to suppose he will not do so – this part of the challenge will become unnecessary.
Grounds for Challenge
Section 40C is challenged on the ground that it violates freedom of expression which, according to section 61 of the Constitution, includes freedom “to seek, receive and communicate ideas and other information.”
Veritas’s contentions are:
- Disseminating information on electoral law and procedures – i.e. providing voter education – is an activity that is clearly protected by section 61 of the Constitution, and enables voters to get information that is independent of governmental sources.
- The restrictions on voter education imposed by section 40C, particularly the obligation to submit voter education materials to ZEC for approval, are a prior restraint on freedom of expression which is permissible only in very limited circumstances.
- The restrictions, moreover, create a virtual State monopoly in the provision of voter education. If the materials have to be submitted 28 days before they are used, their use will be unduly delayed and the information contained in them will have lost its relevance.
- The requirement that voter education must be funded solely from local contributions and donations effectively prevents civil society organisations in Zimbabwe from providing it because they all receive at least part of their funding from overseas.
- Neither political parties nor ZEC itself are subject to the restrictions, so section 40C unfairly discriminates between ZEC and political parties on the one hand and, on the other, independent organisations that wish to provide voters with impartial information.
- Taken as a whole, the restrictions are not fair, reasonable, necessary and justifiable in an open and democratic society based on openness, justice, equality and freedom. As a result, under section 86 of the Constitution, they are unconstitutional.
Safeguard re inaccurate information
The restrictions are not necessary to prevent people disseminating inaccurate or biased information to voters, because section 40E of the Electoral Act gives ZEC ample power to prevent this happening. Under the section ZEC must monitor programmes of voter education and can order anyone who is giving information that ZEC considers false or misleading to stop doing so or to correct the information. Anyone who disobeys such an order can be sent to prison for up to a year.
Opposition to the Challenge
The respondents – ZEC, the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General – have not opposed the application on its merits. Instead, ZEC has objected on technical grounds, though it has said, very properly, that it will go along with the court’s decision on the merits.
Although the papers were filed on 19 December last year the application has not yet been set down for hearing. Veritas is seeking to have the matter heard urgently before the question of voter education becomes academic.
Why this Challenge is Important
The challenge to section 40C is not just an academic exercise to clear out unconstitutional provisions from the Electoral Act – although this is an important factor. It is an attempt to ensure that voters in the forthcoming election are provided with all the information they need to exercise their democratic rights and make informed choices.
ZEC itself does not have the resources to provide all voters with the necessary information; it has to be assisted in this task by other organisations – e.g. civil society organisations, unions, business entities and in particular churches, which have country-wide access to communities. The restrictions imposed by the Act debar most of them from assisting ZEC, and if the restrictions remain in the Act they will deny many voters access to independent, indeed to any, voter education.
The need for voter education is recognised in international instruments to which Zimbabwe is a party:
- The SADC Principles and Guidelines Governing Democratic Elections [link] state in article 11.4.1:
Member States agree that civic and voter education are indispensable to democratic consolidation, as they allow for the electorate to make informed choices on who decides on their governance priorities.
- The AU Declaration on Principles Governing Democratic Elections in Africa [link] commits member States to:
promote civic and voters' education on the democratic principles and values in close cooperation with the civil society groups and other relevant stakeholders.
Unless the restrictive provisions are removed from the Electoral Act, adequate and impartial voter education will not be given to voters. Without adequate and impartial voter education, voters will not know their rights and responsibilities in the forthcoming general election.