This
is an application lodged in terms of section 85(1) of the
Constitution. The applicant seeks the following relief:
It
is ordered that:
1.
The application be and is hereby granted.
2.
Section 192(6) of the Electoral Act [Chapter
2:13]
is declared unconstitutional as it violates sections 235(1), 235(3)
and 67(1)(a) of the Constitution of Zimbabwe, 2013 to the extent that
it empowers any person to approve Regulations that are made by the
second respondent.
3.
The phrase “approved by the Minister” is immediately expunged
from section 192(6) of the Electoral Act [Chapter
2:13].
4.
The first respondent to pay costs of suit on a legal
practitioner-client scale.
The
applicant is a Zimbabwean citizen. He seeks a declaration of
constitutional invalidity of section 192(6) of the Electoral Act
[Chapter
2:13]
on the basis that it violates sections 67(1)(a), 235(1)(a), 235(3)
and 134 of the Constitution of Zimbabwe. In consequence, he seeks
that this Court strike down or expunge the words “approved by the
Minister” from the impugned provision.
The
applicant's main contention is that the Minister of Justice, Legal
and Parliamentary Affairs (the “Minister”), should not have the
prerogative to approve Regulations made by the Zimbabwe Electoral
Commission (ZEC) in terms of section 192(6) of the Electoral Act. The
provision is couched in the following manner:
“192
Regulatory powers of Commission
(1)
The Commission may, by regulation, prescribe all matters which by
this Act are required or permitted to be prescribed or which, in its
opinion, are necessary or convenient to be prescribed for carrying
out or giving effect to this Act.
(2)
Regulations in terms of subsection (1) may provide for -
(a)
Any matter for which it is expressly provided in this Act that
regulations may be made;
(a1)
The terms and conditions of service of the employees of the
Commission, including the Chief Elections Officer;
(b)
The form of any document to be used in the carrying out of the
provisions of this Act;
(c)
The duties of constituency elections officers, presiding officers,
and polling officers where the electoral officer has made a
declaration in terms of subsection (6) of section twenty-one,
including the manner of identifying applicants for ballot papers and
the questions that may be put to such applicants;
(d)
The issue of duplicate voters registration certificates and the fee
payable therefor;
(e)
Such measures to be taken in connection with an election as may be
desirable or expedient to ensure that
-
(i)
A person does not cast more than one vote; or
(ii)
A person who is not eligible to vote does not cast a vote;
(f)
Measures to be taken by employers to provide their employees with an
opportunity to vote in any election;
(g)
The access by journalists to, and their conduct at, polling stations
and constituency centres;
(g1)
Facilities enabling electoral officials and other persons who, on
polling day in any election, are or will be assisting with the
conduct of the election, to cast their votes, whether through the
medium of postal voting or otherwise;
(g2)
The membership and functions of multi-party liaison committees as
defined in Part XXIA;
(h)
Penalties for contraventions thereof, not exceeding a fine of level
ten or imprisonment for a period not exceeding one year or both such
fine and such imprisonment.
(3)
The Commission shall consult the Minister responsible for local
government before making regulations in terms of subsection (1) in
respect of elections to which Part XVIII applies.
(4)
Notwithstanding any other provision of this Act but subject to
subsection (5), the Commission may make such statutory instruments as
it considers necessary or desirable to ensure that any election is
properly and efficiently conducted and to deal with any matter or
situation connected with, arising out of or resulting from the
election.
(5)
Statutory instruments made in terms of subsection (4) may provide for
-
(a)
Altering any period specified in this Act within which anything
connected with, arising out of or resulting from any election must be
done;
(b)
Empowering any person to make orders or give directions in relation
to any matter connected with, arising out of or resulting from any
election;
(c)
Penalties for contraventions of any such statutory instrument, not
exceeding a fine of level ten or imprisonment for a period not
exceeding one year or both such fine and such imprisonment.
(6)
Regulations
made in terms of subsection (1) and statutory instruments made in
terms of sub-section (4) shall not have effect until they have been
approved by the Minister and published in the Gazette.”...,.
The
applicant's argument is that the impugned provision empowers the
Minister to control and even block the Chairperson of the Zimbabwe
Electoral Commission (ZEC) from executing his regulation-making
function in preparation for elections. He contends, further, that the
Chairperson of the Zimbabwe Electoral Commission (ZEC) must be
allowed to discharge his or her functions independent of the
direction or control of anyone. The applicant alleges that ZEC has
authored draft regulations called Electoral (Voter Registration)
Regulations, 2017 and that these are due to be approved by the
Minister in terms of section 192(6) of
the Electoral Act [Chapter
2:13].
He avers that this exercise is a vicious threat to the fundamental
rights conferred on him in section 67 of the Constitution because the
Minister is an interested party in the upcoming elections and
therefore he cannot be entrusted with the power to approve the
Regulations.
The
application is opposed by the Minister who averred, in his opposing
affidavit, that the assumption that the Chairperson of the Zimbabwe
Electoral Commission (ZEC) may be compromised is far-fetched and
unjustified as the applicant has failed to point out exactly in what
manner the draft Regulations are unfair and compromised. He submitted
that the approval of the Regulations by himself is done in the
exercise of his functions as an administrator of the Electoral Act as
he is accountable to Parliament in terms of the Constitution itself
as well as the Electoral Act. The Minister also averred that the fact
that he is mandated, by section 192(6) of
the Electoral Act [Chapter
2:13],
to approve regulations should not be misconstrued to mean that he has
power to direct, control, and interfere with the functions of the
Chairperson of the Zimbabwe Electoral Commission (ZEC).
Thus,
the question for determination before this Court is whether the
statutory requirement for the Regulations to be approved by the
Minister is unconstitutional.
The
applicant's main argument is that the provision in section 192(6)
of
the Electoral Act [Chapter
2:13],
which stipulates that for the Regulations made by the second
respondent to be valid they must first be approved by the Minister,
undermines the Constitutionally guaranteed independence of the second
respondent to prepare an election that is based on fair regulations
and practices. Section 235 of the Constitution provides as follows:
“235
Independence of Commissions
(1)
The independent Commissions -
(a)
Are independent and are not subject to the direction or control of
anyone;
(b)
Must act in accordance with this Constitution; and
(c)
Must exercise their functions without fear, favour or prejudice;
although they are accountable to Parliament for the efficient
performance of their functions.
(2)…,.
(3)
No person may interfere with the functioning of the independent
Commissions.”
The
applicant's contention is that the requirement for the first
respondent to approve the Regulations places the second respondent
under his “direction and control” and allows him to interfere
with the functions of the Zimbabwe Electoral Commission (ZEC).
The
pertinent issue to be determined in this judgment is the
interpretation to be accorded the phrase 'direction and control'
in relation to the requirement for the first respondent to 'approve'
the Regulations. In other words, is the 'approval' that is
required of the Minister, in terms of section 192(6) of
the Electoral Act [Chapter
2:13],
tantamount to the Zimbabwe Electoral Commission (ZEC) being subject
to his direction and control?
It
is trite that in construing the provisions of the Constitution, the
primary rules of statutory interpretation apply. This was highlighted
by this Court in Chihava
and Others v Provincial Magistrate and Another
2015 (2) ZLR 31 (CC) where it stated...,:
“In
this respect, it is pertinent to note that a Constitution is itself a
statute of Parliament. Therefore, any rules of interpretation that
are regarded as having particular relevance in relation to
Constitutional interpretation, can only be additional to the general
rules governing the interpretation of statutes…,.”
The
rules of statutory interpretation dictate that the words of a statute
must be given their ordinary grammatical meaning unless this would
lead to an absurdity. In Endevour
Foundation & Anor v Commissioner of Taxes
1995
(1) ZLR 339 (S)..., GUBBAY CJ said:
“The
general principle of interpretation is that the ordinary, plain,
literal meaning of the word or expression, that is as popularly
understood, is to be adopted, unless that meaning is at variance with
the intention of the legislature as shown by the context, or such
other indicia
as the court is justified in taking into account, or creates an
anomaly or otherwise produces an irrational result. See Stellenbosch
Farmers' Winery Ltd v Distillers' Corp (SA) Ltd & Anor
1962 (1) SA 458 (A) at 476 E-F. The same notion was expressed in
another way by MARGO J in Loryan
(Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd
1984
(3) SA 834 (W) at 846G-H:
'Dictionary
definitions of a particular word are very often of fundamental
importance in the judicial interpretation of that word in a statute
or in a contract or in a will. Nevertheless, the task of
interpretation is not always fulfilled by recourse to a dictionary
definition, for what must be ascertained is the meaning of that word
in its particular context in the enactment or contract or other
document.'”
This
is buttressed in ZIMRA
& Anor v Murowa Diamonds (Pvt) Ltd
2009 (2) 213 (S) in which the Supreme Court emphasised:
“The
grammatical and ordinary sense of the words is to be adhered to
unless that would lead to some absurdity or some repugnance or
inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to
avoid that absurdity and inconsistency, but no further - see Chegutu
Municipality v Manyora
1996 (1) ZLR 262 (S) at p 264D-E: Madoda
v Tanganda Tea Company Ltd
1999 (1) ZLR 374 (S) at p 377A-D.”
The
above authorities illuminate the principle that the ordinary meaning
of the words employed in a statute should be strictly adhered to
unless that would lead to an absurd result.
BLACK's
Law dictionary defines 'direction' as an act of guidance and
'control' as “to exercise restraining or directing influence
over, to regulate, dominate, curb; to hold from action, to overpower,
counteract or govern.”
The
phrase 'direction or control' was defined by the Kenyan Supreme
Court in Re:
The Matter of the Interim Independent Electoral Commission
[2011] eKLR as follows:
“While
bearing in mind that the various Commissions and independent offices
are required to function free of subjection to 'direction
or control by any person or authority',
we
hold that this expression is to be accorded its ordinary and natural
meaning; and it means that the Commissions and independent offices,
in carrying out their functions, are not to take orders or
instructions from organs or persons outside their ambit.”
The
applicant referred the court to the case of New
National Party v Government of the Republic of South Africa and Ors
1999 (3) SA 191 (CC) in which the South African Constitutional Court
described the independence of Commissions as follows:
“In
dealing with the independence of the Commission, it is necessary to
make a distinction between two factors, both of which, in my view,
are relevant to 'independence'. The first is 'financial
independence'. This implies the ability to have access to funds
reasonably required to enable the Commission to discharge the
functions it is obliged to perform under the Constitution and the
Electoral Commission Act…,. The second factor, 'administrative
independence', implies that there will be control over those
matters directly connected with the functions which the Commission
has to perform under the Constitution and the Act. The Executive must
provide the assistance that the Commission requires 'to ensure
[its] independence, impartiality, dignity and effectiveness.' The
department cannot tell the Commission how to conduct registration,
whom to employ, and so on; but if the Commission asks the Government
for assistance to provide personnel to take part in the registration
process, Government must provide such assistance if it is able to do
so. If not, the Commission must be put in funds to enable it to do
what is necessary.”
The
above authorities amplify the point that for independent commissions
to be 'independent' and not under the 'direction or control'
of any other party, they ought to be self-regulating and should not
be influenced in the due performance of their functions by other
organs of the State. The meaning to be ascribed to section 235(1) of
the Constitution is therefore that independent commissions should not
be subject to guidance or regulation by external forces.
The
crucial question for determination is thus whether the 'approval'
that must be sought from the Minister is tantamount to guidance,
regulation or influence in the functions of the Zimbabwe Electoral
Commission (ZEC).
The
word 'approve' becomes critical. Approve is a transitive verb
which means:
To
have a positive opinion of someone or something - the Cambridge
English Dictionary.
To
accept, pronounce as being satisfactory to officially agree with a
plan, request or to say that something is good enough to be used or
is correct - Oxford Advanced Learners Dictionary.
To
give formal sanction to; to confirm authoritatively - Black's Law
Dictionary, 8th
ed.
From
the above definitions, what is clear is that 'approval' is to
sanction an act as correct. In the context of section 192(6) of
the Electoral Act [Chapter
2:13],
it means that the Regulations cannot be promulgated without first
obtaining the sanction of the Minister as to their correctness.
The
crux of this application is thus whether the requirement to acquire
the sanction of the Minister concerning Regulations is tantamount to
him regulating or governing the functions of the Zimbabwe Electoral
Commission (ZEC).
The
applicant accepts it as inevitable that when preparing for elections
the Zimbabwe Electoral Commission (ZEC) has to promulgate
administrative regulations to deal with various aspects of the
elections. Any election demands the active participation of the other
arms of the Executive in as much as ZEC cannot operate without the
co-operation and assistance of these arms. This then informs the
requirement in the Electoral
Act that
the Minister must approve the Regulations. Whilst the Zimbabwe
Electoral Commission (ZEC) has the mandate to conduct elections, in
executing this mandate, it has to do so within the confines of
existing laws. It must therefore conform not only to its governing
law but also the laws that regulate the conduct of the other
participants in the process. In this context, it cannot be free to
make regulations that are in conflict with public policy and the law.
It
is in this context that the Minister's approval of the Regulations
must be construed.
The
provision must therefore be given an interpretation that is purposive
in order to give a true reflection of the intention of the
Legislature in requiring the approval of the Minister before
promulgation of any regulations prepared by the Zimbabwe Electoral
Commission (ZEC). In construing the provision within the context of
this debate the word 'approve' must be read as defined in the
dictionary to signify satisfaction with or confirming, sanctioning or
agreeing with.
In
my view, the applicant has not made out a case where the word
'approve' can be construed to mean direct or control as contended
before us. To ascribe such a meaning to the word would constitute a
fundamental departure from its ordinary meaning.
The
applicant needed to show that the Regulations fail to meet the
standard of impartiality as is required by the Constitution. The
applicant does not impugn the Regulations themselves. An attack on
the lack of or absence of impartiality of the Regulations themselves
would have, in the circumstances of this case, gone a long way in
laying a foundation to his claim that the need for their approval by
the Minister served to impair the independence of the Zimbabwe
Electoral Commission (ZEC) in their promulgation. The process of
promulgation cannot be impugned in the abstract. There needs to be
tangible evidence of interference.
There
is none.
The
view that I take is that the requirement for the Minister's
approval of the Regulations does not give the Minister the power to
govern or regulate the functions of the Zimbabwe Electoral
Commission, nor does it diminish the power and independence of ZEC to
craft regulations that accord with its mandate both in terms of its
enabling Act or the Constitution. The purpose of the approval to be
sought from the Minister is for him to exercise an Administrative
function to ensure that the regulations comply with the law. As
correctly stated by the first respondent, he is responsible for
reporting to Parliament in terms of section 323 of the Constitution
which provides:
“Every
Commission must submit to Parliament, through the responsible
Minister, an annual report describing fully its operations and
activities, the report being submitted not later than the end of
March in the year following the year to which the report relates.
(2)
An Act of Parliament may require a Commission to submit further
reports in addition to the annual report specified in subsection (1),
and may prescribe the way in which such reports are to be submitted.”
Clearly,
in terms of this provision, it is incumbent upon the Zimbabwe
Electoral Commission (ZEC) to submit a report concerning its
operations to Parliament - through the first respondent. This mode of
operation enables the first respondent to perform his functions in
terms of section 323 of the Constitution. Regulations constitute
subsidiary legislation and the responsible Minister is obliged to
check their compliance with the law in general, not just the
Electoral Act, before they are promulgated. In short, any regulation
presented before Parliament must be consistent with the laws of the
country, including the common law. It leaps to the mind that the
Zimbabwe Electoral Commission (ZEC) does not have the obligation to
ensure that this is the position. It is not after all, a law-making
body. It is only tasked to make regulations for the better
performance of its mandate for the conduct of elections.
My
reading of the provision is that it is not meant to give the first
respondent power to interfere with the ordinary day to day operations
of ZEC or to direct how it should perform its functions. Rather, it
is an administrative step towards the making of subsidiary
legislation which is not in conflict with the law as a whole.
Regard
must also be had to the purpose of sections 235(1) and (3) of the
Constitution which are, in essence, “independence clauses.” The
real purpose of the “independence clauses”, with regard to
Commissions and independent offices established under the
Constitution, is to provide a safeguard against undue interference
with such Commissions or offices by other persons or other
institutions of Government. These provisions were incorporated into
the Constitution as a necessary measure to ensure that no organ of
the State would usurp power from the Independent Commissions, and, in
effect, direct the manner in which they operate. These Commissions
are set up essentially to ensure that the fundamental rights provided
in the Bill of Rights are protected and given effect to. To that end,
the Commissions were entrusted with special governance mandates of
critical importance. They are intended to serve as 'people's
watchdogs' and, to perform this role effectively, they must operate
in an environment without improper influences, fear or the promise of
favour.
It
is my view that the requirement for the first respondent to approve
the regulations does not undermine the purpose underpinning the need
to ensure the independence of the Zimbabwe Electoral Commission
(ZEC). As already highlighted, these Regulations are promulgated into
law; thus, it is important for them to be approved by the relevant
Minister to ensure compliance with legislative standards as well as
other laws.
The
applicant contends that the requirement to seek the approval of the
first respondent compromises his right to a free and fair election
protected under section 67(1)(a) of the Constitution. It provides:
“67
Political rights
(1)
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;”
The
grammatical formulation of this right shows that it is not limited to
the right to 'participate' in a free and fair election. In
addition to the right to 'participate' in a free and fair
election, a citizen has the right to know that the elections have
been or are going to be free and fair.
The
applicant alleges that the first respondent is an interested party in
the outcome of the elections and the requirement that he should
approve the electoral regulations compromises the fairness of the
election. Per
contra,
the first respondent contends that the allegation is unfounded
because, in terms of section 134(f) of the Constitution, his
functions in terms of the section are subject to scrutiny by
Parliament. The section provides:
“134
Subsidiary legislation
Parliament
may, in an Act of Parliament, delegate power to make statutory
instruments within the scope of and for the purposes laid out in that
Act, but -
(a)...,.
(b)...,.
(c)...,.
(d)...,.
(e)...,.
(f)
Statutory
instruments must be laid before the National Assembly in accordance
with its Standing Orders and submitted to the Parliamentary Legal
Committee for scrutiny.”...,.
Thus,
it is evident that even though the regulations must be placed before
the Minister for approval, they are still subject to mandatory
scrutiny by Parliament. They cannot be promulgated unless the
Parliamentary Committee tasked with their scrutiny and confirmation
has been given the opportunity to do so and has confirmed that they
are in compliance with the laws of the country, and, more
importantly, that they are valid under the Constitution.
In
his opposing papers, the Minister made specific reference to the fact
that the regulations must be in accordance with the Constitution and
be placed before a Parliamentary Committee for scrutiny. The
applicant did not choose to make any averments on this process. He
does not deny the existence of the Committee, its composition, its
impartiality or lack thereof or its functionality. He does not
challenge its effectiveness. In short, he ignores its very existence.
Assuming
that it achieves the purpose for which it is set up under the
Constitution, then an attack on the process undertaken by the
Zimbabwe Electoral Commission (ZEC), and the approval of the Minister
of that process, would place the applicant in an invidious position.
In effect, it would leave him without a leg to stand on. He cannot,
in my view, seek to impugn the process piecemeal. Given that the law
requires the regulations to be placed before Parliament for scrutiny,
the applicant would have to also challenge the process conducted
under the aegis of Parliament itself and exhibit that even that
process is itself wanting and that it does not ensure that his
fundamental right to a free and fair election is at risk
notwithstanding the involvement of Parliament at the critical stage.
He
has not done so.
It
seems to me that the allegation that the applicant's right to a
free and fair election will be compromised is unfounded and without a
basis as there are measures in place to ensure that the process
surrounding the making of the regulations is fair and transparent.
The applicant ought not to succeed in having a provision of the
Electoral Act expunged based on mere unsubstantiated suspicions of
bias on the part of the first respondent. It is worth reiterating
that the approval that is sought from the Minister is not so that he
gives his personal views concerning the substance of the regulations,
but it is sought in order for him to exercise his administrative
functions as the lawful administrator of the Electoral Act.
It
is further contended by the applicant that the Minister is in
violation of the former's rights because he has failed to put in
place the legislative measures contemplated in section 235(2) of the
Constitution to facilitate the re-alignment of electoral laws with
the Constitution.
Section
235 enshrines the independence of the Zimbabwe Electoral Commission
(ZEC). There is nowhere in the papers where the lack of independence
of this body is addressed. There is no indication that at any stage
there was an attempt by the applicant to bring to the attention of
the Minister the lack of conformity of any provisions of the
Electoral Act with the Constitution.
He
alleges that the Minister has failed to realign section 192(6) of
the Electoral Act [Chapter
2:13]
with section 235(1) of the supreme law.
This
allegation is clearly premised on the issue relating to approval
dealt with above and needs no further comment. Other than this
allegation, no foundation has been made for an application to have
the relief being granted on the allegation of failure to comply with
section 235 of the Constitution. No such failure has been
established.
In
the circumstances, I do not believe that the applicant can claim,
with any integrity, that the process requiring the Zimbabwe Electoral
Commission (ZEC) to promulgate regulations with the approval of the
Minister violates his right under section 67, section 235(1) or
235(2) of the Constitution, as alleged. The application lacks merit
and must fail.
Accordingly,
it is ordered as follows:
1.
The application is dismissed.
2.
There shall be no order as to costs.
