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.
FACTUAL
BACKGROUND
On
13 July 2013, the President of Zimbabwe who is the ninth respondent
herein issued a proclamation, in terms of section 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:
(i)
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 section 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.
(ii)
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 section 81B(2) of the
Act would, in essence, facilitate the undue deprivation of the rights
provided in terms of section 67 of the Constitution to the 26,160
special voters who failed to cast their votes on 14 and 15 July 2013.
THE
APPLICATION
Section
239 of the Constitution of Zimbabwe provides:
“239
Functions of Zimbabwe Electoral Commission
The
Zimbabwe Electoral Commission has the following functions —
(a)
To prepare for, conduct and supervise —
(i)
Elections to the office of President and to Parliament;
(ii)
Elections to provincial and metropolitan councils and the governing
bodies of local authorities;
(iii)
Elections of members of the National Council of Chiefs established by
section 285; and
(iv)
Referendums; and
to
ensure that those elections and referendums are conducted
efficiently, freely, fairly, transparently and in accordance with the
law…”
It
was in view of its mandate set out above and out of due regard for
the following provisions of the Constitution, that the applicant has
felt constrained to make this application.
“155
Principles of electoral system
(1).….
(2)
The State must take all appropriate measures, including legislative
measures, to ensure that effect is given to the principles set out in
subsection (1) and, in particular, must —
(a)…
(b)
Ensure that every citizen who is eligible to vote in an election or
referendum has an opportunity to cast a vote, and must facilitate
voting by persons with disabilities or special needs;”
“67
Political rights
(1)…
(2)…
(3)
Subject to this Constitution, every Zimbabwean citizen who is of or
over eighteen years of age has the right —
(a)
To vote in all elections and referendums to which this Constitution
or any other law applies, and to do so in secret;”
The
application was opposed by the fourth respondent.
Mr
Hwacha,
while acknowledging the right of the recipients of the special vote
to cast their vote, submitted that consideration was also to be given
to the rights of the six (6) million voters who are entitled to free,
fair and transparent elections.
He
submitted that had there been a challenge to section 81B(2) of the
Act, the applicant would have been able to argue that the derogation
was not justifiable. As it is, the wrong procedure had been adopted
by the applicant.
He
drew the Court's attention to section 81H of the Act which makes it
a criminal offence for special voters to vote in a general election.
However,
Mr
Kanengoni
expressed surprise that the MDC-T had opposed the application since
it was made as a result of consultation with all the political
parties involved as to the way forward as far as the special voters
were concerned.
It
was submitted on behalf of the applicants that for the fundamental
right to vote provided for in section 67 of the Constitution to be of
any effect, the obligations placed on the applicant in terms of
section 239 of the Constitution and the measures highlighted under
section 155 of the same Constitution must be met with respect to
every election and referendum.
Where
these standards are not met, the rights of every Zimbabwean citizen
enshrined in section 67 of the Constitution will have been violated.
Thus
the failure by the first applicant, albeit through no fault of its
own, to discharge the obligations placed on it by the Constitution,
resulted in thousands of potential voters, authorized to cast their
ballots on 14 and 15 July 2013, being unable to vote equally through
no fault of their own.
In
terms of section 81B of the Act, these potential voters are
prohibited from voting “in any other manner than by a special vote
in terms of this Part”.
THE
SPECIAL VOTE
Section
81B of the Electoral Act provides as follows:
“81B
Where special voters must vote; special voters not entitled to vote
in any other way
(1)
An electoral officer or member of a disciplined force who is
authorized to cast a special vote in terms of this Part must cast his
or her vote at the special polling station for the district in which
he or she is performing duties away from the constituency in which,
or the polling station at which, he or she would ordinarily be
required to vote.
(2)
A voter who has been authorized to cast a special vote shall not be
entitled to vote in any other manner than by casting a special vote
in terms of this Part.”
In
view of the failure by the applicants to facilitate the casting of
their votes, the effect of section 81B(2) would on the face of it be
that the special voters were denied their constitutional right to
vote.
There
is, therefore, on a reading of subsection (2), an apparent conflict
between section 81B of the Act and section 67(3) of the Constitution.
In
this connection, the provisions of section 2(1) of the Constitution,
set out below, are relevant.
“2
SUPREMACY
OF CONSTITUTION
1.
This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.”
THE
PRESUMPTION OF CONSTITUTIONALITY
It
appears to me however that on a proper construction of section 81B,
no conflict exists.
One
commences the process of interpretation of the provision with the
presumption of constitutionality.
Every
statute is presumed to be constitutional, that is to say, the
Legislature is presumed to have acted within the parameters of the
Constitution. Thus, where a provision in a statute is capable of two
possible interpretations, one contrary to the Constitution and the
other in keeping therewith, the Court conducting the inquiry into the
constitutionality or otherwise of the provision must adopt the
meaning which will give effect to the Constitution.
The
presumption of constitutionality was explained thus by GEORGES CJ in
Zimbabwe
Township Developers v Lou's Shoes (Pvt) Ltd
1983 (2) ZLR 376 at 381F:
“Arguments
have also been addressed at some length on the presumption of
constitutionality. It is a phrase which appears to me to be pregnant
with the possibilities of misunderstanding. Clearly a litigant who
asserts that an Act of Parliament or a Regulation is unconstitutional
must show that it is. In such a case the judicial body charged with
deciding that issue must interpret the Constitution and determine its
meaning and thereafter interpret the challenged piece of legislation
to arrive at a conclusion as to whether it falls within that meaning
or it does not.
The
challenged piece of legislation may, however, be capable of more than
one meaning.
If
that is the position then if one possible interpretation falls within
the meaning of the Constitution and others do not, then the judicial
body will presume that the law makers intended to act
constitutionally and uphold the piece of legislation so interpreted.
This
is one of the senses in which a presumption of constitutionality can
be said to arise.
One
does not interpret the Constitution in a restricted manner in order
to accommodate the challenged legislation. The Constitution must be
properly interpreted, adopting the approach accepted above.
Thereafter the challenged legislation is examined to discover whether
it can be interpreted to fit into the framework of the Constitution.”
The
learned Judge referred to the case of Attorney
General of Trinidad and Tobago v Ramesh Mootoo
(1974) 28 WLR 304 in which the following passage from Crowell
v Benson
(1931) 285 US 22 at 26 (per HUGHES CJ) was quoted with approval:
“When
the validity of an Act of Congress is drawn in question, and even if
a serious doubt of constitutionality is raised, it is a cardinal
principle that this court will first ascertain whether a construction
of the statute is fairly possible by which the question may be
avoided.”
While
I am mindful that no challenge has been raised as to the
constitutionality of section 81B(2), the need to ascertain the
meaning of the provision has arisen because of the apparent conflict
with the Constitution which arises from the interpretation of the
section advanced by the respondents, an interpretation which, if
adopted, will amount to a violation of the constitutional right of
the special voters to vote in the general election.
As
will be shown below, section 81B(2) is capable of a construction
which does not offend against the Constitution.
INTERPRETING
THE STATUTORY PROVISIONS
Various
rules have been formulated to assist the Court in the interpretation
of statutes. One of these often referred to as the cardinal rule of
construction, is the literal rule which requires that the words of a
statute must be given their ordinary, literal and grammatical
meaning. [1]
However,
the object of such interpretation or construction is to ascertain the
intention of the legislature in enacting the provision concerned and,
even where the words employed in the statute are clear and
unambiguous, a Court may depart from the ordinary effect of the words
in order to remove an absurdity and to give effect to the true
intention of the legislature “if to do otherwise would lead to an
absurdity so glaring that it could never have been contemplated by
the legislature, or where it would lead to a result contrary to the
intention of the legislature as shown by the context or by such other
considerations as the Court is justified in taking into account.”[2]
INTENTION
OF PARLIAMENT
The
task before this Court is therefore to ascertain the intention of
Parliament in enacting the provision under scrutiny.
Was
it intended that in circumstances such as obtain in
casu
the successful applicants for special voting would be denied their
constitutional right to vote?
For
then that would be absurd viewed from the context of the unqualified
right to vote conferred upon such persons by the Constitution.
The
right to vote is absolute. No derogation therefrom is provided for by
the Constitution.
The
Court must proceed from the premise that Parliament intended to act
constitutionally and, in
casu,
to respect the sacred right of the special voters to vote. It
therefore could not have intended to deprive special voters of their
right to vote should the necessary measures not be put in place by
the State to enable them to cast their special votes on the dates
prescribed.
Another
rule of construction, the mischief rule, can be called in aid at this
juncture.
In
order to assist the court in deciding on the true intention of the
legislature, the Court may have regard to 'the mischief' that the
Act was designed to remedy.
Thus
the Court may look not only at the language of the statute, but also
at the surrounding circumstances, and may consider its objects, its
mischiefs, and its consequences[3].
In
this regard, in S
v Meredith
1981 (3) SA 29 (ZAD) at 33, BARON JA had this to say:
“It
is trite that words and phrases cannot be construed in
vacuo;
their meaning can be discerned only in the context in which they are
used. I think it is worth citing the words of Viscount SIMONDS in
Attorney-General
v HRH Prince Ernest Augustus of Hanover
(1957)
1 All ER 49 at 53:
'For
words, and particularly general words, cannot be read in isolation;
their colour and content are derived from their context. So it is
that I conceive it to be my right and duty to examine every word of a
statute in its context, and I use context in its widest sense which I
have already indicated as including not only other enacting
provisions of the same statute, but its preamble, the existing state
of the law, other statutes in pari
materia,
and the mischief which I can, by those and other legitimate means,
discern that the statute was intended to remedy.'[4]
A
reading of the provisions relating to the special vote discloses that
the mischief designed to be remedied by these provisions was the
possibility of double voting by persons authorised to cast a special
vote.
It
appears to me that subsection (2) of section 81B was predicated upon
a situation where all facilities were available to enable the special
voters to vote.
Thus
section 81 of the Act provides for the dates for special voting; the
places where the votes may be cast; the form of applications for
special voting and requirements therefor; the drawing of lines on the
voters rolls in the constituencies where the names of the special
voters appear and marking them “SV”; the conduct of the special
poll and the handling of the ballots.
It
does not, in my view, envisage a state of affairs, such as presently
obtains, where the State or the applicants have failed to put in
place the necessary measures to ensure that the special voters would
be able to cast their ballots upon presentation of themselves at the
polling station for that purpose.
Indeed,
it seems clear that Parliament did not intend that this provision
would apply in a case such as the instant one where the special
voters attended at the designated polling stations in order to cast
their votes and waited all day to do so only to be turned away
because the proper measures were not put in place by the State.
Such
an intention would clearly be contrary to the Constitution.
We
are, for the above reasons, of the view that section 81B(2) was
intended by Parliament to apply only in circumstances where all
measures necessary to enable successful applicants to cast their
special votes had been taken by the responsible agents of the State.
There
was, therefore, no impediment to the grant of the order sought by the
applicants, as amended, so as to cover only those special voters who
failed to vote through no fault of their own.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
GWAUNZA
JA: I
agree
GARWE
JA: I
agree
GOWORA
JA: I
agree
HLATSHWAYO
JA: I
agree
PATEL
JA: I
agree
CHIWESHE
AJA: I
agree
Nyika
Kanengoni & Partners,
applicants legal practitioners
Dube,
Manikai & Hwacha,
fourth respondent's legal practitioners
