ELECTION WATCH 24/2018
16th June 2018
Two Veritas Court Cases on Elections to be Heard on Monday 18th June
in High Court, Harare
This 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.
2nd Case 2.30 pm
To Enforce ZEC’s Duty of Transparency
The court papers for the case are available on the Veritas website [link] and [link]
Veritas v ZEC and Attorney-General
Transparency means openly and without secrets
The Constitution does not define “transparency”. It is for the courts to decide what “transparency” means in the context of ZEC’s responsibility for conducting elections. In this case Veritas invites the court to give meaning to the concept of “transparency” to ensure that ZEC’s operations in the run-up to the coming elections are “done in an open way without secrets”.
The more ZEC carries out its functions in an open way without secrets the more likely it is to be able to deliver a credible election.
The court order Veritas asks for goes into great detail as to what ZEC’s duty of transparency means in relation to specific aspects of its responsibilities. In essence the court is asked to declare that ZEC is legally obliged to make available for public scrutiny far more information about how it conducts its operations that it has been willing to do up to now.
Relevant provisions of Constitution and Electoral Act
The application is founded on sections 3(2)(g), 156(a), 233(d) and 239(a) of the Constitution and section 3 of the Electoral Act.
Section 3(2)(g) lists “transparency, justice, accountability and responsiveness” as one of the principles of good governance that bind the State and all institutions, including ZEC; section 156(a) obliges ZEC to ensure that the method of voting is “simple, accurate, verifiable and transparent”; section 233(d) obliges all independent Commissions including ZEC, to “promote transparency and accountability in all public institutions”; and section 239(a) states one of ZEC’s functions is to ensure that all elections are conducted “efficiently, freely, fairly, transparently and in accordance with law”.
The order sought
Note: Veritas had to seek an urgent hearing for this case. The delay in getting a hearing for this case means some of the deadlines sought by Veritas have already passed. So now there is all the more urgency for ZEC’s full disclosure of information immediately.
Veritas seeks an order compelling ZEC to comply with its constitutional duty to administer a transparent general election and to promote transparency in all its operations.
Specifically, Veritas requests that ZEC be declared to have a legal duty to:
- Disclose all of its standard operating procedures, processes, policies and internal manuals which relate to the conduct of elections and make them available for public scrutiny at least three months before the election;
- Publish in advance of the election the criteria for screening and selecting persons seconded to ZEC’s during an election, and for other electoral processes such as registration of voters;
- Publish the names of persons seconded to ZEC as well as the designations or roles in the electoral process and the government departments from which they were seconded as soon as reasonably possible after any such secondment and in all circumstances in advance of the election;
- Ensure that no members of the Security Services are seconded to it;
- Publish the names, designations and government departments of any persons to whom ZEC delegates, directs, or asks to assume any voter registration functions;
- Publish the names, designations and government departments of any persons to whom voter registration functions were not delegated to for the reason that the Civil Service Commission withheld its consent;
- Retain direction and control over any member of the Civil Service to whom it delegates its voter registration functions;
- Produce and publish a manual, in advance of the election, for any person who is to act as an election officer during an election to ensure that the election is conducted in an efficient and transparent manner;
- Promptly publish the names of persons who have been removed from the voters roll and the reasons for such removal as soon as they have been removed as soon as reasonably possible after their removal from the voters roll and in all circumstances at least three weeks before an election;
- Publish, in advance of the election, the standard operating procedures relating to compilation, collation and transmission of results from polling stations.
- Publish, in advance of the election, the standard operating procedures relating to the sealing and storage of ballot boxes, voters rolls, ballot papers, tallies of votes and any other electoral papers, which must ensure all such electoral papers are sealed in such a way that they can be made available for the purpose of any electoral petition, in terms of the electoral law;
- Publish information relating to its intended voter education exercise including a schedule of the date, time and location of where it will conduct voter education as well as the publication online of all voter education materials that the First Respondent intends to use for its voter education programs;
- Ensure that election agents are identifiable on Election Day by way of providing lanyard identity (ID) cards to election agents to be worn on Election Day;
- Publish the names of any person, body, organ, agency or institution, belonging to or employed by the State, who provides assistance to the Commission in order to protect its independence, integrity and dignity in terms of section 10A(3) of the Electoral Act as well as the precise nature of the assistance;
- Not to delegate any of its functions regarding the logistics or any other aspect of its mandate to administer elections;
- Not to delegate any of its mandate to the National Logistics Committee (NLC) unless all members of the NLC have been seconded to ZEC in terms of section 10 and are under its direction and control;
- Publish in advance of the election the names, roles and government departments of all personnel that make up the NLC or any other State organ that provides any assistance to the Respondent and the nature of the assistance;
- Publish in advance of the election a clear explanation of the legal and institutional mandate of the NLC including details about its role in every aspect of the administration of the election and how the First Respondent will maintain oversight, direction and control over the NLC;
- Publish all standard operating procedures, processes, policies and internal manuals that relate to the NLC.
- Produce and publish the First Respondent’s criteria and methodology for monitoring media houses as well as its standard operating procedures, processes, policies and internal manuals relating to the monitoring of media houses.
If this case succeeds:
- the general election will be more likely to be judged free fair and transparent.
- citizens will have greater trust in ZEC
- a Kenya situation in which the Supreme Court annulled the election as being not transparent as provided for by the Kenyan Constitution
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