ACCESSING THE NATIONAL VOTERS’ ROLL THROUGH THE RIGHT OF ACCESS TO INFORMATION IN ZIMBABWE
Justice Alfred Mavedzenge1
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.
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.
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 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
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.
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
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.”
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 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
Therefore, there should not be doubt that ZEC is an institution of the State, which is required to respect, protect, promote and fulfil the rights enshrined in the Constitution.
Furthermore, ZEC is bound by the Declaration of Rights given that it is a Commission created to ensure the effective realisation of the rights enshrined in the Declaration of Rights. ZEC’s mandate is to organise, supervise and conduct elections in a manner that is consistent with the principles set by the Constitution, in order to fulfil the right to a free and fair election40 as enshrined in s 67 (1) (a). As will be shown later, the right to a free and fair election is not a right which can be exercised in isolation as it is closely related and sometimes dependent on other rights such as the right to access certain information which enables citizens to cast their votes freely and have those votes counted fairly. ZEC is thus not only bound by the right to vote but by the entire Declaration of Rights, to respect, protect, promote and fulfil the relevant rights enshrined therein, which include the right of access to information held by the State.
“… those who govern are obliged to conduct the business of government in accordance with publicly articulated, prospective rules that enable citizens to assess the legitimacy and propriety of public policies”.41
These rules are set by the Constitution and expanded in the enabling legislation and regulations. Constitutionalism, therefore, implies respect for the Constitution and all other laws which flow from it. In terms of s 233, ZEC is therefore obliged to promote respect for the Constitution, which also includes respect of the rights enshrined in the Constitution. In that regard, ZEC is bound not only to honour the right of access to information, enshrined in s 62, but to actively promote the observance of this right when discharging its constitutional mandate.
Since the adoption of the Constitution in May 2013, the Zimbabwean courts have handled some petitions42 in which citizens and or political parties sought to hold ZEC accountable on the basis of the Declaration of Rights. However, the courts have not been able to deal with this issue as most of those petitions were thrown out on technicalities.
However, prior to the commencement of the 2013 Constitution, the Zimbabwean Electoral
“The clear intention of the Legislature in s 61 (5) of the Constitution  was to ensure ZEC’s independence provided it was operating within the law. It has to exercise its functions as provided by subs (4) for it to enjoy that immunity. It cannot for example conduct elections unfairly, outside the law, and which are not free and fair, but on being sued insist that the courts have no jurisdiction over it. The court would in such circumstances have jurisdiction to hear and determine complaints against ZEC.”
This case was decided in 2008 in terms of the former Constitution of Zimbabwe,44 which created ZEC as an independent constitutional body. However the Court insisted that the independence is not from the law and ZEC was subject to the jurisdiction of the Courts. Given that the 2013 Constitution has maintained a similar legal principle of subjecting all State institutions to the principle of the rule of law45 and to honour the constitutional rights,46 the courts must be able to follow a similar approach to hold ZEC accountable on the basis of the Constitution’s Declaration of Rights.
The argument in favour of ZEC’s accountability on the basis of the Declaration of Rights is well supported in comparative jurisdictions that have persuasive force in the Zimbabwean legal system.47 In Kenya, in the case of Raila Odinga v the Independent Electoral and Boundaries Commission,48 (IEBC) the IEBC was petitioned by a contestant of the State Presidential elections for having failed to maintain a credible national voters’ roll.49 On the question of whether the IEBC was bound by the Bill of Rights or not, the court made the following indication:
Thus the Supreme Court of Kenya interpreted the IEBC as an entity created to fulfil certain rights enshrined in the Constitution’s Bill of Rights and thus bound by the Bill of Rights to honour the various fundamental rights enshrined therein, including the political rights entrenched in Article 38 of the Constitution of Kenya. This approach should be applicable in the Zimbabwean context as in similar situation, the ZEC is a constitutional entity, entrusted with the responsibility to protect, promote and fulfil the rights enshrined in the Declaration of Rights, which include the right to free and fair elections51 and the right of access to information.52
In South Africa, the judiciary has also taken a similar stance that, although the electoral management body is created as an independent institution, it remains a State institution bound by the Bill of Rights. This was first confirmed by the Constitutional Court in its landmark judgment in the August v Electoral Commission.53 In this case, the Independent Electoral Commission (IEC) was petitioned in an application which challenged the constitutionality of its decision to deny prisoners their right to vote. On the question regarding whether the IEC is bound by the Bill of Rights, the Court indicated as follows:
“The right to vote by its very nature imposes positive obligations upon the legislature and the executive. A date for elections has to be promulgated, the secrecy of the ballot secured and the machinery established for managing the process. For this purpose the
Thus the Court took the view that the electoral commission is created to fulfil the rights enshrined in the Constitution’s Bill of Rights, particularly the right to vote. Therefore, the IEC is bound to respect, protect, promote and fulfil the rights enshrined in the Bill of Rights.55
Currie and de Wal rightly observe that constitutional rights are not absolute.60 Constitutional rights must be exercised in a manner which respects the boundaries set by other rights and by important social concerns which include national security, public order and safety.61 Section 86 (1) read together with (2) (a) of the Constitution of Zimbabwe entrenches this principle of limitation by cautioning that the rights enshrined in the Declaration of Rights “must be exercised reasonably and with due regard for the rights and freedoms of other persons.” However, it ought to be emphasised that, although these rights are subject to limitations, they may only be limited for a reason and in a manner that is constitutionally valid.
Constitutional rights may only be limited through a law of general application, to the extent that the limitation is fair, necessary and is consistent with the underlying values of a democratic state62 which are openness, justice, human dignity, equality and freedom. Whether the limitation is justifiable is determined by considering the nature of the right being limited, the purpose, nature and extent of the limitation, the relationship between the limitation and the purpose of such limitation, and whether there are any less restrictive means of achieving the same purpose.63 In South Africa, where similar guidelines exist, this has been interpreted to mean that the limitation must be for a purpose regarded as compelling in a democratic constitutional state,64 there must be a good reason to believe that the purpose will be achieved by restricting the right, the restriction of the right must not be more than what is necessary to achieve the purpose and it must be the least restrictive manner through which the purpose may be achieved.65
In the next section of this paper, it will be demonstrated that there is no constitutionally justifiable reason for denying a citizen access to the national voters’ roll. To the contrary, the Constitution obliges ZEC to provide citizens with access to the national voters’ roll because it is in the interest of public accountability to do so and it is necessary for the exercise of one’s political rights, particularly the right to a free and fair election, enshrined in section 67 (1) (a) of the Constitution.
Part III The transparency and public accountability argument
Every Zimbabwean citizen has a constitutional right to access the national voters’ roll in order to enforce public accountability by ZEC regarding the management of elections. This view is predicated on the fact that ZEC has a constitutional mandate to ensure proper custody of the national voters’ roll and at the same time, it has the obligation to discharge this function in a transparent and accountable manner, especially when requested to do so.
Transparency and accountability are necessary normative values upon which every constitutional democratic State must be based.70 Transparency is a normative constitutional value which demands that State institutions must discharge their duties and exercise public power in a manner that is open to the citizens as well as other State institutions.71 State accountability encapsulates the obligation of State institutions entrusted with public power and public resources to be answerable for the exercise of their power and utilisation of resources.72
Thus transparency is the idea that state affairs should be conducted in a manner that is open to public scrutiny and accountability is the idea that the State must account for its actions. A democratic society must incorporate adherence to these two values, amongst others, because public power is less likely to be abused when exercised openly and when the State is legally obliged to account to the citizens.
“… governed by the democratic values and principles enshrined in this Constitution, including [that] transparency must be fostered by providing the public with timely, accessible and accurate information”76
By entrenching transparency and accountability as founding values and by guaranteeing the right of access to information held by the State, there cannot be doubt that the 2013 Constitution has subordinated the exercise of all public power to openness and public scrutiny.
ZEC exercises public power to prepare, supervise and conduct elections of public office bearers in Zimbabwe, as described in Part II of this paper. This power should be discharged to give effect to the constitutional principle that the authority to govern is derived from the people77 and through a free and fair election78 which is conducted in accordance with the principles enshrined in s 155 as well as the founding values stated in s 3 of the 2013 Constitution. ZEC has the responsibility to compile voters’ rolls79 and to ensure the proper custody and maintenance of these rolls and registers.80 This constitutional function must be exercised in a manner which adheres to the normative values of transparency and accountability, as discussed earlier.
Access to the national voters’ roll as a means of enforcing the right to a free and fair election.In addition to the public accountability argument, access to the national voters roll is constitutionally justified for purposes of protecting and enforcing the right to a free and fair election. The right of access to information guarantees the citizens access to any information held by the State, if access to the requested information is necessary to exercise or protect
Section 67(1) (a) entrenches the right of every Zimbabwean citizen to a free and fair election for any elective public office.87 Despite the numerous election petitions brought before it, the Zimbabwean judiciary has not yet elaborately interpreted what this right entails. Devenish88 argues that when interpreting the provisions of the Constitution, the starting point should be the consideration of the grammatical formulation of the provision. In Zimbabwe, this principle is constitutionally entrenched in section 46(1) (d) which requires the court or a body to duly consider the relevant provisions of the Constitution when interpreting the fundamental rights. It is therefore imperative to pay attention to the grammatical formulation of the right to a free and fair election, in order to establish its scope and meaning.
“Every Zimbabwean citizen has the right-(a) to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law”.89
The grammatical formulation of this right shows that it is not limited to the right to ‘participate’ in a free and fair election. Citizens are not mere participants in an electoral process, but are also active agents with legitimate interests or concerns. Therefore, in addition to the right to
‘participate’ in a free and fair election, they have the right to know that the elections have been or are going to be free and fair, and the right to take legally valid corrective actions to ensure that the elections comply with set requirements of being free, fair and regular. Additionally, s 46(1) (b) of the 2013 Constitution, prescribes that:
“When interpreting this Chapter [The Declaration of Rights], a court, tribunal, forum or body must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3 [of the Constitution]”
The incorporation of the value of transparency into the scope of the right to a free and fair election creates the right of a citizen to an election which is conducted transparently. The management of the national voters’ roll is an integral part of the process of organising the elections. Therefore, the citizens have the right to have their national voters’ roll managed properly and in a manner that is open to them. Put differently, as part of the right to a free and fair election, the citizens have the right to know and verify the condition of the national voters’ roll. This right may be exercised by invoking the right of access to information held by the State through access to the national voters’ roll as that information is necessary to exercise their right to know and verify the condition of the national voters’ roll.
The incorporation of the value of accountability into the scope and meaning of the right to a free and fair election creates a duty for ZEC to be accountable to the citizens when called upon do so, during the process of preparing or conducting an election. As indicated above, the management of the national voters’ roll is a significant part of preparing for an election in terms of the 2013 Constitution. Therefore, as part of the right to a free and fair election, the citizen is entitled to the right to call ZEC to account on the condition of the national voters’ roll and it is impossible to demand accountability without access to the necessary information.
For the citizens to be able to call ZEC to account regarding the condition of the national voters’ roll, they need to have access to a copy of the national voters’ roll in a form which is suitable for them to assess whatever they need to ascertain. On that basis, the citizens can invoke section 62 (2) of the 2013 Constitution to request access to the national voters’ roll.
Access to the national voter’s roll is guaranteed as a constitutional right. This right is derived from the governance framework as entrenched in the 2013 Constitution. This framework requires that the exercise of all public power and the discharge of all public functions must be done in a manner that is open to the public, and the State must be accountable to its citizens. The right of access to any information held by the State is a constitutional right which citizens are entitled to use in order to enforce public transparency and accountability. It is a mechanism provided by the Constitution to give effect to the underlying values of transparency and accountability.
Therefore the citizens may request access to the national voters’ roll in order to foster transparency in the manner in which ZEC manages and maintains the national voters’ roll. In addition, the right of access to information is a leverage right, which can be used to access information necessary to exercise or protect other rights. The right to a free and fair election implies the right to know if the elections have been free and fair or are going to be free and fair. This right may only be exercised if a citizen has access to the national voter’s roll.
1 By Justice Alfred Mavedzenge, a Doctoral candidate in the Department of Public law at the University of Cape Town and a practising constitutional lawyer in Zimbabwe.
2 2013. See in particular sections 155, 156 and 158
3 [Chapter 2:13] of Zimbabwe
4 Including the legislation governing freedom of the media, freedom of expression and the freedom of assembly.
5 This information is gleaned from unpublished position papers presented by various Zimbabwean civil society organisations and academics. Some of the information can be obtained from https://erczim.org/?cat=36 (Accessed on 29 July 2016)
6 To protect the independence and integrity of ZEC. It has been argued that these standards should, amongst other stipula- tions, prohibit the recruitment of serving State security agents to work within ZEC as this may undermine the independence of the Commission
7 Which include the MDC led by Professor Welshman Ncube, Transform Zimbabwe, the African Democratic Party and Progres- sive Democrats of Zimbabwe.
8 These include Justice Mavedzenge v Chairperson of the Zimbabwe Electoral Commission HC 4014/14
9 Constitution of Zimbabwe, Amendment No 20, 2013
10 See s 62 (1) ibid.
11 See s 62 (2) ibid.
12 The right of access to information was an implied right under the auspice of the right to freedom of expression enshrined in s 20 of the former Constitution of Zimbabwe, 1979. However the scope of the right was not as widely formulated as it exists in section 62 of the current Constitution.
13 Section 46 (1) (e provides that, ‘when interpreting this Chapter [the Declaration of Rights], a court, tribunal, forum or body may consider relevant foreign law.’
14 1996 s 32
15 2010 s 35
16 See ss 3 and 46 (1) (b). Also see Mudzuru v Ministry of Justice, Legal & Parliamentary Affairs  ZWCC 12 at 26
17 These are the Independent Electoral and Boundaries Commission of Kenya and the Electoral Commission of South Africa
18 See section 19 of the Constitution of South Africa, 1996 and Article 38 of the Constitution of Kenya, 2010
19 See sections 238 and 239 of the Constitution of Zimbabwe, 2013
20 Saras Jagwanth and Richard Calland.’The Right to Information as a Leverage Right’. University of Cape Town (2002) at 3
21 Iian Currie and Johan De Wal. The Bill of Rights Handbook 5th Ed (2005) at 684