ACCESSING THE NATIONAL VOTERS’ ROLL THROUGH THE RIGHT OF ACCESS TO INFORMATION IN ZIMBABWE

Justice Alfred Mavedzenge1

Abstract

The call for electoral reforms in Zimbabwe has been at the centre of deliberations on political governance and democratic reform in the country.  The Constitution2  prescribes minimum standards and principles to which  the conduct of elections in Zimbabwe must  adhere. Zimbabwe is also bound by the SADC Principles and Guidelines Governing Democratic Elections which should give  effect  to amendments to the Electoral Act3    and related legislation.4

Amongst the key changes5  which  must be made  to the Electoral Act are those  giving  the Zimbabwe Electoral  Commission (ZEC) the independence to fundraise  for its operations; the independence to decide  on foreign  observer missions without  interference from the sitting government; allowing diaspora Zimbabweans to cast their vote in elections; and imposing certain  professional standards6   to be applied  by ZEC when recruiting staff.

The main opposition party, Movement for Democratic Change led by Morgan Tsvangirai, has collaborated with other opposition parties7   to craft a document titled the National  Electoral Reform Agenda, which  details  the reforms required to give  effect  to the standards and principles prescribed by the Constitution. However, the issue of public access to the national voters’  roll has attracted much  attention as signified by the court  applications8    made  to compel ZEC to release  the national  voters’ roll to the public. The national  voter’s roll should be available to the public  as it is an existing  constitutional right, which  the legislature are obliged  to give effect to through amendments to the Electoral Act.

This paper  argues  that the issue as to whether  citizens  are entitled  to access  the national voter’s roll has been settled in the Constitution which requires all State institutions  to exercise public  power  and discharge their  functions in a transparent and accountable manner as enforced through  the right of access  to information, enshrined in s 62. This right entitles citizens to request any record  of information held by the State which is obliged  to provide the requested information if that information is needed  by the requester for purposes of fostering public accountability.

ZEC has the duty to provide citizens with access to the national voters’ roll because it must be accountable and transparent regarding  the state and condition  of the national voters’ roll. Additionally, the State is obliged to provide access to the requested record if the information is needed by the requester to protect or exercise any of the rights entitled  to the citizen by law. Citizens have the right to a free and fair election as interpreted in the context of the entrenched values  of transparency and accountability which  include  the right to hold ZEC accountable for the manner in which  elections are organised. To exercise this right, the citizens can request  access to the national  voters’ roll by invoking the right of access to information held by the State.

Introduction

The Constitution of Zimbabwe9 , s 62 entrenches the right  of access  to information and provides as follows:

“Every  Zimbabwean citizen  or permanent resident, including juristic  persons and the Zimbabwean media,  has the right of access  to any information held by the State or by any institution or agency  of government at every  level,  in so far as the information is required  for the exercise  of public accountability.” 10

In addition, the Constitution provides as follows:

“Every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right.”  11

This paper  argues  that the right to access  any information held by the State includes  the constitutional right of citizens  and permanent residents of Zimbabwe to access the national voters’ roll in both electronic and hard copy format. This argument is predicated on the fact that access to the national  voters’ roll is necessary for citizens  to hold the ZEC accountable regarding how it discharges its constitutional duty of managing the national  voters’ roll and related  registers. This argument is also based  on the fact that citizens  require  access  to the national  voters’ roll for them to be able to exercise  their political  rights, particularly the right to a free and fair election.

This paper is divided  into three parts. In Part I, the nature and object of the right of access to information held by the State is discussed  and it is sought to show that the purpose of the right of access  to information is to give effect to the constitutional values  of transparency and accountability. The discussion  is also aimed at showing that the purpose of this right is to facilitate the protection and enforcement of other legal rights to which citizens  are entitled.

In Part II, the paper discusses the application of the right of access  to information held by the State to show that ZEC is an institution of the State and is therefore bound by the right of access  to information.

In Part III, the paper discusses the scope and meaning of this right in order to show that it includes  the right of the citizens  to access the national  voters’ roll. The paper discusses the two possible  constitutional grounds, within the scope of the right of access  to information, upon which citizens  can claim access  to the national  voters’  roll. It is argued  that the right to a free and fair election, as opposed  to the right to participate in a free and fair election, includes  the right to know that the elections  will be or have been free and fair and that right can only be exercised if one has access  to the national  voters’  roll.

Reference will be made to existing literature  on access to information as a human right. The paper  also refers  to comparative foreign  law because a wide or elaborate right of access to information is still a new right  in Zimbabwe12    and the local  courts  are yet to develop adequate jurisprudence in this area. Reference to relevant  foreign  law is permitted by the Constitution.13

Much of the foreign case law referred  to in this paper is drawn from the jurisprudence of the Constitutional Court of South Africa and the Supreme Court of Kenya because both countries can be regarded as comparable jurisdictions in relation  to Zimbabwe. The Constitution of South Africa14   and that of Kenya15   provide  for the right to access  information in a context where transparency, accountability and free and fair elections are entrenched as constitutional values. In Zimbabwe, constitutional rights are to be interpreted in a manner which upholds,resonates and  promote these  values16    and,  as Zimbabwean courts develop their  own jurisprudence on the right of access to information, they ought to be persuaded by how the courts  in Kenya  and South Africa have interpreted this right to give effect to the values  of transparency, accountability and free and fair elections.

Another comparable point between Kenya and South  Africa is the creation  of independent electoral  bodies17   with a constitutional mandate  to ensure the realisation of certain political rights entrenched in the Bill of Rights, including  the right to vote in a free and fair election.18

The Constitution of Zimbabwe creates ZEC to perform a similar constitutional function19   and Zimbabwean courts, therefore, ought to be persuaded to hold their electoral management bodies accountable to honour the rights enshrined in the Constitution’s Bill of Rights.  Thus, there are sufficient constitutional similarities between Zimbabwe, Kenya and South  Africa which make it possible  to refer to those jurisprudences regarding comparative foreign  law to advance  the arguments made in this paper.

Part I: Nature  and object  of the right of access  to information held by the State Jagwanth  and Calland20   have described  the right of access to information as a leverage right, whose purpose is, on one hand, to facilitate  the enforcement of public accountability and, on the other hand, the enforcement of other rights. This notion has been endorsed by various other  authors, for instance, Currie  and de Wal argue  that the right to access  information originates from the idea that, in an open  and democratic society, government should  be transparent and accountable for its actions  and decisions, and therefore the public  must have access  to the relevant information in order  to assess  the rationality of Government decisions.21    In his commentary on the South  African  Bill of Rights,  Devenish asserts  that the right of access  to information is predicated on the need for accountability.22   Diallo and Calland23   posit that the right of access to information serves different  democratic objectives which  include  holding  government to account  and increasing citizen  participation in State or public affairs.

The right  of access  to information is perceived as a leverage right  which  gives  effect  to the values  of transparency and accountability because  it allows  citizens  to access  certain useful information held by the State; to scrutinize  the lawfulness, propriety and rationality  of decisions  taken;24   and to hold their leaders accountable. Furthermore, the right of access to information gives the citizens access to certain information which they can use to assess and establish whether  or not their rights  have been violated  or are being threatened.25    Hence the right of access to information is perceived as a right which is meant to give effect to the idea of open and transparent government, as well as facilitate the exercise  of other rights.

The notion  that the right of access  to information is purposed to foster  transparency and State accountability has also been endorsed in South Africa,26   for instance, in the seminal case of Brümmer v Minister for Social  Development27    where  the Constitutional Court  of South Africa held as follows:

“The importance of this right ... in a country which is founded  on values of accountability, responsiveness and openness, cannot be gainsaid. To give  effect  to these  founding values, the public  must  have  access  to information held by the State.  Indeed  one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency must be fostered  by providing the public  with

timely,  accessible and accurate information”

More recently, the South African Constitutional Court maintained  the same stance in President of the Republic of South Africa v M & G Media Ltd,28 , when it held that:

“The  constitutional guarantee of the right  of access to information held  by the state gives effect  to accountability, responsiveness and openness, as founding values  of our constitutional democracy. It is impossible to hold accountable a government that operates in secrecy. The right of access to information  is also crucial to the realisation of other rights in the Bill of Rights.  The right to receive  or impart  information or ideas,  for example, is dependent on it. In a democratic society  such as our own, the effective exercise  of the right to vote also depends  on the right of access  to information. For without  access  to information, the ability of citizens  to make responsible political  decisions and participate meaningfully in public life is undermined.”

Similarly, in De Lange v Eskom  Holdings,29   the South African  High Court had the occasion to interpret the significance and purpose  of the right of access  to information held by the State where it held as follows:

“Various  authorities and our higher courts have consistently held that the purpose  of the right of access to information is to subordinate the organs of the state to a new regimen of openness and fair dealing  with the public.”

Thus,  the  South African jurisprudence on the  interpretation of the  right  of access to information shows  that the judiciary has taken the view that the purpose  of this right is to guarantee citizens’  access to information held by Government as a means of compelling the State to operate  transparently and to be accountable. The Court  also endorses this right to provide  citizens  with access  to certain  information necessary for them to exercise  their other rights  as transparency and accountability are entrenched as constitutional values30 to be interpreted in a manner which  upholds and promotes those  values.31    Zimbabwean courts  ought  to be persuaded by this stance  due to the entrenchment of similar  values  in the Constitution of Zimbabwe.

That the right of access to information is a leverage  right, predicated on the need to enforce public  accountability and other  rights,  is unequivocally endorsed by the Constitution of Zimbabwe, s 62 which  allows  that the right of access  to information held by the State  is guaranteed for two purposes. First, access  to State information is guaranteed in order to foster public accountability. Section 62 (1) entitles citizens and permanent residents  as well as Zimbabwean media to

“… any information held by the State or by any institution or agency  of government at every level, in so far as the information  is required in the interests of public accountability.”

Second, through section 62 (2) the notion that the right of access to information is a leverage right to facilitate the enforcement of other rights is established, and entitles Zimbabweans to any information held by the State, “in so far as the information is required  for the exercise or protection of a right.”

The term ‘right’ is not only limited to constitutionally entrenched rights. Section 47 indicates that the entrenchment of the Declaration of Rights “does not preclude  the existence  of other rights  and freedoms that may be recognised or conferred by law, to the extent  that they are consistent with this Constitution”. Therefore the term ‘right’,  as used in section  62 (2) should  be interpreted broadly  to include  any right recognised under  the law applicable in Zimbabwe, as long as the exercise of that right will not infringe or violate any provision of the Constitution. Lovemore Madhuku observes that law in Zimbabwe includes legislation,  common law and customary law32   and, although this observation was made prior to the enactment of the 2013 Constitution, his views are still relevant  as signified  by section  332. Therefore the term ‘any right’ include those rights conferred upon the citizens by any legislation, common law, customary law or international law that is applicable in Zimbabwe.

The foregoing discussion demonstrates that,  in terms  of the Constitution of Zimbabwe, citizens have a right to access any information held by the State if they need that information for purposes of enforcing government transparency and accountability, or for purposes of enforcing any legal right. This paper contends  that access to the national  voters’ roll can be justified on both grounds and therefore fits within the ambit of the right to access information, as enshrined in s 62.

Part II: Application of the right of access  to information held by the State

In order to understand  why and how access to the national voters’ roll can be justified as part of the right of access to information, it is important to understand certain aspects regarding how the right of access to information applies in terms of the Constitution of Zimbabwe.  First, the Declaration of Rights binds the State and all its agencies, including  those that are in the executive, legislative and judicial  branch  of Government, as defined  by the constitution.33

In addition, the Constitution prescribes that the State and all the institutions and agencies of government at every level must respect,  protect,  promote and fulfil the rights enshrined in the Declaration of Rights.34

The Constitution establishes the ZEC as an independent constitutional body35    responsible for the proper  custody  of the national  voters’  roll and related  registers.36    Therefore, ZEC is an institution of the State.  It has been  argued  elsewhere37    that, by virtue  of being  an independent constitutional body, ZEC is not bound by the Declaration of Rights. The fact that ZEC is an independent constitutional commission does not exonerate it from being bound by the Declaration of Rights or the Constitution. A Constitution prescribes how the State shall be organised  or structured, creates State institutions, confers power to those institutions and prescribes rules, principles and values through which the assigned  power shall be exercised by those institutions.38   ZEC is guaranteed  independence from being pressured by other State institutions or non-State actors but is still subject to law and Constitutional provisions. Only the judiciary, when applying the law, has the authority to direct  how ZEC shall operate.39