Parliamentary watchdog takes Zimbabwe Electoral Commission to court

ELECTION WATCH 23/2018

16th June 2018

Two Veritas Court Cases on Elections to be Heard on Monday 18th June

in High Court, Harare

This coming Monday, 18th June, the High Court in Harare is due to hear two cases brought by Veritas to improve the conduct of the coming general election.

Both cases raise constitutional issues affecting the Electoral Act and the Zimbabwe Electoral Commission [ZEC]’s functions under the Constitution and the Electoral Act.

1st Case 10 am

Restricted Voter Education vs. Freedom of Expression

The court papers for the case are available on the Veritas website [link] and [link]

Veritas v ZEC, the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General.

As explained in Election Watch 15/2018 of 25th May, Veritas is bringing the case as a public interest case.  Although the case was filed last year, Veritas had to make an urgent application to have it heard as a  matter of urgency.   Time is running short before these elections.  But there is still a great deal of voter education to be done now – and if the case is won it will benefit later elections too.

This application was explained in Election Watch 15/2018 of 25th May [link].  It seeks an order declaring section 40C of the Electoral Act in part unconstitutional on the ground that it is inconsistent with the freedom of expression to which all Zimbabweans are entitled under the Constitution [this includes freedom “to seek, receive and communicate ideas and other information”].   It also cites unfair discrimination and infringement of political rights.

Section 40C gives ZEC a virtual monopoly over all voter education by subjecting everyone else, except political parties, to unduly stringent conditions, including but not limited to:

• the requirement that it must be in accordance with a course or programme approved by ZEC
• can only be done by an organisation having voter education as its mandate in the organisations constitution.
• 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.

Veritas contends that, bearing in mind that there are penalties written into the Electoral Act for distributing inaccurate information, that 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.  Under section 86 of the Constitution they are, therefore, unconstitutional.

Also, on a practical level ZEC does not have the resources to educate the whole population about the election process and unless churches, businesses, colleges, other organisations and interested citizens are allowed to disseminate information on elections many people will be ill-informed.

Note: Although the results of the April/May Afrobarometer survey came after Veritas took the case, it revealed that 72% of Zimbabweans think [incorrectly] that voters must show their BVR slips in order to vote.

The order that Veritas is seeking from the court is that:

“ … it is declared that section 40C(1)(g) and (h) and section 40C(2) of the Electoral Act are inconsistent with sections 56, 61 and 67 of the Constitution of Zimbabwe and are hereby struck down”.

Reminder: section 40C of the Electoral Act narrowly restricts voter education; section 56 prohibits unfair discrimination, section 61 guarantees freedom of expression and section 67 guarantees every citizen’s political rights.

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