ACCESSING THE NATIONAL VOTERSROLL 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 madto 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 giveffect  to the standards and principles prescribed by the Constitution. However, the issue of public access to the nationavoters’  roll has attracted much  attention as signified by the court  applications8    made  to compel ZEC to release  the national  votersroll to the public. The national  voters roll should be available to the public  as it is an existing  constitutional right, whicthe legislature are obliged  to give effect to through amendments to the Electoral Act.

This papeargues  that the issue as to whether  citizens  are entitled  to access  the national voters 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 accesto 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  votersroll 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 papeargues  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 votersroll in both electronic and hard copy format. This argument is predicated on the fact that access to the national  votersroll is necessary for citizens  to hold the ZEC accountable regarding how it discharges its constitutional duty of managing the national  votersroll and related  registers. This argument is also based  on the fact that citizens  require  access  to the national  votersroll 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 bthe 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  votersroll. 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 referreto 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 accesinformation 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 anpromote 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 courtin Kenyand 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 SoutAfrica 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 RightsThus, there are sufficient constitutional similarities between Zimbabwe, Kenya and SoutAfrica 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  thathe right of accesto 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 righthave 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 fostetransparency 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 Courof 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 giveffect  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 helby 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 ideasfor 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,  thSouth African jurisprudence on thinterpretation of thright  of access to information showthat 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 accesto 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 Statis guaranteed for two purposes. First, accesto 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 rightis 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 rightas used in section  62 (2) should  be interpreted broadly  to include  any right recognised undethe 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 sectio332. Therefore the term any rightinclude 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  votersroll 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 guaranteeindependence 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

Therefore,  there should not be doubt that ZEC is an institution  of the State, which is requireto 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. ZECs 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.

The notion that ZEC is bound by the rights enshrined in the Declaration of Rights is further supported by s 233 (a) and (c), which  binds  ZEC to support human rights  and promotconstitutionalism. Section 233 is significant as it is one of the provisions through  which ZEC is created  and it can be argued  that the same constitutional provisions whiccreate  ZEC further bind it to honour human rights. Access to information  is recognised  as a constitutional human right and therefore  ZEC is bound to honour that right. Constitutionalism is a complex phenomenon to define but, as Francois  Venter argues,  it is a doctrine  that encapsulates the idea that:

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  arset by thConstitution and  expanded in thenabling legislation and regulations. Constitutionalism, therefore, implierespect  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 2013the 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 ElectoraCourt  in Movement for Democratic Change  v the Chairperson of the Zimbabwe Electoral Commission43   held that:

 

The clear intention  of the Legislature in s 61 (5) of the Constitution [1979] was to ensure ZECs independence  provided it was operating within the law. It has to exercise its functions as provided by sub(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 Courinsisted  that the independence is not from the law and ZEC was subject to the jurisdiction  of the Courts. Given that the 201Constitution 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 ZECs 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 IEBwas 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:

[The]  IEBC is a constitutional entity  entrusted with specified obligations, to organizemanage  and conduct  elections, designed to give fulfilment to the people’s  political  rights (Article 38 of the Constitution).  The execution of such a mandate is underpinned by specified constitutional principles  and mechanisms and by detailed provisions  of the statute law. 50

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 rightenshrined 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 Constitution provides for the establishment of the [Independent Electoral] Commissioto manage  elections and ensure  that they are free and fair.54

Thus the Courtook 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

Jagwanth observes  that the right of access to information held by the State creates positive duties which must be performed  by the State.56   In Zimbabwe, these duties are encapsulated in s 44, whosimport  is to require  the State to protect  and promote the citizens  right to access information held by the State. The duty to protect human rights entails the obligation to take positive  steps to protect  rightbearers  from activities whichave the potential to undermine the enjoyment of their constitutional rights.57   The duty to promote  fundamental rights  encompasses the obligation to takpositive measures to create  conditions which enable  citizens  to access  and enjoy  their fundamental rights.58    Therefore both the duty to protect and promote culminate in the establishment of the obligation of the State  to takpositive measures to ensure  that citizens enjoy  their  rights.  Regarding the right  of access to information, ZEC is therefore  bound to take positive steps to provide citizens with information when  they request  it. The scope  of this duty must  be interpreted consistent with s 194 (1) which obliges  all institutions of the State to ensurthat they discharge their functions  in accordance with the basic values and principles  governing public administration, as enshrined in the Constitution. Thesinclude  the requirement to foster transparency by providing the public with timely,  accessible and accurate information.59    Therefore ZEC has a positive  obligation to timeously provide  the national  voters’  roll when requested to do so and it must be provided in its accurate form.

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 nationasecurity,  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 rightenshrined in the Declaration of Rights  must  be exercised reasonably and with due regard  for the rights  and freedoms of othepersons.However, it oughto be emphasised that, although these rightare 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 suclimitation, 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 restrictivmanner through which the purpose  may be achieved.65

In view of the foregoing, the right of access to information may only be limited through a law ogeneral application, and such law includes legislation  which applies to everyone  in Zimbabwe. This right may be limited  only for a purpose  that is considered acceptable and compelling in a democratic state66  and the State  may enact  legislation which  may restrict  access  to certain information. Currently this legislation is the Access to Information and Protection of Privacy Act67 which was, however, enacted  prior to the adoption  of the Constitution and it is due for realignment. The Constitution allows this legislation to restrict access to information if it is necessary for purposes  of protecting or promoting national  defence,  public security or professional confidentiality.68   Additionally, in terms of section 86 (2) (b, access to information may also be restricted if it is necessary to protect  public  order,  public  safety  and health. However, it is not enough  for the State to merely  give one of these reasons  as justification for restricting  access to information. There must be a rational connection between the nature of the information for which access is being denied and the purposfor such restriction. Put differently, the nature  of the information must be such that if released to the citizen,  the legitimate purpose  for the protection of such information will be undermined. Furthermore, the Constitution unequivocally cautions that, even where restriction  is contemplated in order to promote or protect  any of the aforementioned legitimate interests, the restriction must not go beyond what is necessary, fair and must be consistent  with the values of a democratic society  that is based  on accountability and transparency69    and musremain  reasonable both in terms of the length of time and the amount  of information for which access is being restricted.

In the next section  of this paper,  it will be demonstrated that theris no constitutionally justifiable  reason for denying a citizen access to the national voters’ roll. To the contrarythe 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 ones 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 nationavoters’ 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 opeto public  scrutiny and accountability is the idea that the State  must  account for its actions. A democratic society  musincorporate 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.

The Preamble to the 2013 Constitution shows that the Zimbabwean society  has committed itself to establish a unitedjust, prosperous nationfounded  on transparency as one of the cardinal values.73    Additionally, transparency and accountability are entrenched amongsthe founding values  and principles upon which the government should  be based.74   To give effect  to thestwo values,  the 2013 Constitution entrenches as fundamental the right of access to any information held by the State,75   and a duty for all public institutions to ensure that they are:

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 information76

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 201Constitution 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 propecustody  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.

The proper maintenance of the national voters’ roll is the bedrock of the electoral democracy81 because, in terms  of the 2013 Constitution,82  the authority to govern  is acquired through a free and fair election  and the right to vote in that election  may only be exercised when a citizen  is registered as a voter.83    It is impossible to achieve the constitutional goal of establishing and maintaining a democratic Zimbabwean society  in which  the authority to govern is derived from the people through a free and fair election,  if the nationavotersroll is not managed properly. Thus, ZEC has a duty to inspire  confidence amongst the citizens that the elections are based  on a properly managed national voters’  roll. In that regard, the citizens  have both a legitimate interest  and a justiciable fundamental right to know if the national  voters’  roll does exist in proper  shapand condition necessary for the proper conduct of elections.84   This right is exercised  on the basis of s 62 (1)85   by requesting ZEC to provide a copy of the national voters’ roll in a manner that enables the public to scrutinizits’ quality. ZEC has an obligation to respect,  protect and promote  this right and therefore  has a duty, especially  when requested  to do so, to uphold and foster the obligation  of transparency and accountability in the management of the national  voters’  roll and the maintenance of the democratic electoral system.

 

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 justifiefor 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 protectheir rights.86

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 numerouelection 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 requirethe 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 anelective  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 participatein 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

participatein 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 above  provision has been  interpreted by the Constitutional Court  of Zimbabwe90    timply that constitutional rights must be interpreted in a manner which adequately resonates with the entrenched founding constitutional values and principles. Therefore the scope and meaning of the right to a free and fair election  ought to be established in a manner  which incorporates and upholds  the values  of openness and accountability.

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  whicis 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  accesto 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 votersroll 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 accesto the necessary information.

For the citizens  to be able to call ZEC to account regarding the condition of the national votersroll, they need to have access to a copy of the nationavotersroll in a form which is suitable  for them to assess whatever they need to ascertain. On that basis, the citizens cainvoke section  62 (2) of the 2013 Constitution to request  access to the national  votersroll.

 

Conclusion

Access to the national voters roll is guaranteed as a constitutional right. This right is derived from the governance framework as entrenched in the 201Constitution. 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 effecto the underlying values  of transparency and accountability.

Therefore the citizens marequest 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 accesto the national  voters  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 [2015] 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

22 Gorge Devenish. A Commentary of the South Africa Bill of Rights (1999) at 446

23 Fatima