The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready.

They contented, in limine, that, they are not subject to the jurisdiction of this court....,.

Jurisdiction

On 6 April 2008, before this case could be heard on the merits, counsel for the respondents submitted that this court did not have jurisdiction to hear the applicant's application. He relied on the provisions of section 61(5) of the Constitution which provides as follows:

“(5) The Zimbabwe Electoral Commission shall not, in the exercise of its functions in terms of subsection (4), be subject to the direction or control of any person or authority.”

The provisions of subsection (4) which are relevant to this application are found in sub-section (4)(1)(a). They provide as follows:

“(4) The Zimbabwe Electoral Commission shall have the following functions -

(a) To prepare for, conduct and supervise –

(i) Elections to the office of President and to Parliament; and

(ii) Elections to the governing bodies of local authorities; and

(iii) Referendums; and
to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law.”

Counsel for the respondents submitted that this court has no jurisdiction to hear the applicants complaint, and should, therefore, dismiss the application with costs.

Counsel for the applicants submitted that the respondents are subject to the jurisdiction of this court and that is why section 18 of the Zimbabwe Electoral Commission Act provides for the citing of the first respondent as a nominal citee. He further submitted that the court has jurisdiction to inquire into any complaint against the Zimbabwe Electoral Commission (ZEC) provided that it observes ZEC's independence if it is complying with the provisions of the law. He further submitted that this court can intervene if the respondents stray from the provisions of the law.

I agree with counsel for the applicants submissions as it could never have been intended by the legislature, that the Zimbabwe Electoral Commission (ZEC) could conduct itself outside the provisions of the law, including the provisions of section 61(4) of the Constitution itself, and still remain outside the jurisdiction of this court.

The clear intention of the Legislature, in section 61(5) of the Constitution, was to ensure the Zimbabwe Electoral Commission's independence - provided it was operating within the law.

It has to exercise its functions as provided by subsection (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 the Zimbabwe Electoral Commission (ZEC).

It was for these reasons that I ruled that this court has jurisdiction to hear the applicants application....,.

The Merits

On the merits, the applicants contented, through Tendai Biti's founding affidavit dated 3 April 2008, that there has been an unreasonable delay in the processing and announcement of Presidential results. They submitted that the harmonised elections, having been held on 29 March 2008, the results for the Presidential poll should have been announced.

They accused the respondents of employing delaying tactics by announcing the already declared results for the House of Assembly and the Senate.

They submitted that the respondents were thereby avoiding their primary responsibility.

They explained the procedure laid down in sections 64, 65, and the Second Schedule of the Electoral Act which should have been followed and said it should not have taken long to collate, verify, and announce the results.

They submitted that the procedure to be followed signifies the Legislature's intention that the results of the poll must be processed and be announced without any undue delays.

On the issue of delays, counsel for the respondents submitted that, the respondents had not strayed from what the electoral laws require them to do. They can, therefore, not be compelled to release the results when they were operating within the law.

He submitted that there was no provision in the Electoral Act requiring the respondents to collate, verify, and announce the results in a specified period. He therefore argued that the respondents were entitled to act at their own discretion, but in terms of the electoral laws.

Provisions of the electoral laws and their interpretation

The question of whether or not the respondents are operating within the law can only be determined after an analysis of provisions of the Electoral Act [Chapter 2:13] which deal with the transmission of Presidential results from polling stations through constituency centres to the Chief Elections Officer.

Section 64(2) of the Electoral Act provides for the transmission of polling station return as follows:

“(2) Immediately after affixing a polling station return on the outside of the polling station in terms of subsection (1)(e), the presiding officer shall personally transmit to the constituency elections officer for the constituency to which the polling station belongs –

(a)…,.

(b) The poling station return certified by himself or herself to be correct:
provided that, if, by reason of death, injury or illness, the presiding officer is unable, personally, to transmit the ballot box, packets, statement and polling station return under this subsection, a polling officer who was on duty at the polling station shall personally transmit these.”…,.

It is clear from the provisions of this section that polling station returns and other election results material must be urgently, and under the personal care of the presiding officer, be sent to the Constituency Elections Officer.

Even the death, injury, or illness of the presiding officer is not allowed to delay the transmission of the polling station returns and other election result materials to the Constituency Elections Officer.

In the event of death, injury, or illness a polling officer must take over and deliver them with the same urgency the presiding officer should have done.

The Presidential polling station return is part of the material to be urgently transmitted.

The Second Schedule to the Electoral Act, in paragraph 1(1) and (2) provides for the further handling and transmission of Presidential results. It provides:

“(1) After the number of votes received by each candidate, as shown in each polling station return has been added together in terms of subparagraph (1) of sub-section (3) of section 65 and the resulting figure added to the number of postal votes received by each candidate, the constituency elections officer shall forthwith -

(a) Record on the constituency return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each polling station are shown on the return;

(b) Display the completed constituency return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signature thereto; and

(c) Transmit to the Chief Elections Officer, by hand, through a messenger, the constituency return or a copy thereof certified by the constituency elections officer to be correct.

(2) Immediately after arranging for the constituency return to be transmitted in terms of paragraph (c) of sub-paragraph (1), the constituency elections officer shall affix a copy of the constituency return on the outside of the constituency centre so that it is visible to the public.”

The provisions of paragraph 1 of the Second Schedule clearly express the urgency with which the constituency return has to be transmitted to the (“second respondent”), the Chief Elections Officer.

A reading of subparagraph (1)(c) and sub-paragraph (2) reveals the urgency through the use of the word “immediately” and the fact that the affixing of the constituency return outside the constituency centre can only be attended to after the Constituency Elections Officer has arranged for the transmission of the constituency return to the Chief Elections Officer.

The question that has to be answered is why should these returns be urgently transmitted from polling stations and constituency centres if the legislature did not expect the Chief Elections Officer to equally attend to them without delay?

The inquiry must be taken to the next and subsequent stages of the process.

Paragraph 2(1) of the Second Schedule provides:-

“(1) The Chief Elections Officer shall give reasonable notice, in writing, to each candidate or his or her chief election agent, of the time and place where the Chief Elections Officer will verify and collate all the constituency returns.”

Counsel for the respondents seems to rely on this paragraph for the absolute discretion he claims for the respondents.

It is true no time within which the notice shall be given is specified; but, does it mean the second respondent was intended to take whatever time he deemed necessary before inviting the candidates for the collation and verification of the constituency returns?

An analysis of paragraph 2(1) of the Second Schedule seems to reveal that the apparent relaxation of the urgency previously insisted on in the preceding sections and paragraphs could be for the benefit of the invitees.

The Chief Elections Officer must await their arrival before the collation and verification starts.

Even if that was the intention of the legislature, he could have been required to invite them forthwith or immediately.

It must be noted that these returns will be transmitted, by hand, from all constituencies scattered throughout the country. The distance between each Constituency Centre and the National Collation Centre determines the arrival of each return.

The legislature could, in those circumstances, have provided for urgency soon after the receipt of the last return. The fact that it did not leaves its intention unclear.

However, in the construction of statutes, the intention of the legislature can be ascertained from the context within which the provision in question is found.

This part of the Second Schedule to the Electoral Act should therefore be construed in conformity with the whole Schedule and other provisions of the Electoral Act.

The inquiry must therefore move on to the remaining provisions under paragraph 2.

Paragraph 2(2) and (3) of the Second Schedule to the Electoral Act provides as follows:

“(2) At the time and place notified for the verification and collation of the constituency returns referred to in subparagraph (1), and, in the presence of such candidates, their chief elections agents, and observers as are present, the Chief Elections Officer shall display each constituency return to those present and shall, on request, allow a candidate or chief election agent of a candidate to make notes of the contents of each constituency return.”

This paragraph establishes that, at the time notified, the collation and verification should start and continue - irrespective of the absence of other candidates.

The words “as are present” are instructive.

The urgency which seems to have been abandoned in subparagraph (1) seems to have been resumed.

In paragraph 2(3), the legislature provided:

“(3) When the Chief Elections Officer has completed the verification of the constituency returns under sub-paragraph (2), the Chief Elections Officer shall, in the presence of such persons referred to in subparagraph (2) as are present, add together the number of votes received by each candidate as shown in each constituency return.”

This means, once the invitees referred to in subparagraph (1) arrive, verification and collation shall continue - in their presence.

We move on to paragraph 3(1) which provides:

“3(1) Subject to subparagraph (2), after the number of votes received by each candidate, as shown in each constituency return, has been added together in terms of sub paragraph (3) of paragraph 2, the Chief Elections Officer shall forthwith declare the candidate who has received (the qualifying votes in terms of (a) and (b)) to be duly elected as President of the Republic of Zimbabwe with effect from the day of that declaration.”

This means, once the verification and collation starts, it continues until the winning candidate is forthwith declared the President of Zimbabwe if the result produces a winner with a majority of the votes cast.

This clearly proves urgency is resumed from the time the invitees come till the declaration of the winner.

This means, from the transmission of the polling and constituency returns, the legislature intended that officials must urgently forward returns to the Chief Elections Officer, who must, from the arrival of invited candidates or their agents, urgently collate and verify and declare the result of the Presidential poll.

Counsel for the applicants submitted that section 110(3) of the Electoral Act must be factored in, in ascertaining the legislature's intention on whether or not the respondents were intended to act with urgency.

The section provides as follows:

“Where two or more candidates for President are nominated, and, after a poll taken in terms of subsection (2), no candidate receives a majority of the total votes cast, a second election shall be held within twenty-one days after the previous election in accordance with this Act.”

He further submitted that the possibility of a second election, within twenty-one days, is consistent with the urgency expressed in the sections and paragraphs already discussed above.

He said the time for the second election is fast approaching, and, according to his calculation, the second election must be held on 19 April 2008.

He submitted that the legislature, being aware of the possibility of a re-run, could not have intended paragraph 2(1) of the Second Schedule to give the second respondent a wide discretion as to when he should collate and verify constituency returns.

The limited period between the first and second election suggests that the first election's results must be processed with urgency to avoid prejudicing candidates who will be contesting the second election.

The processing of Presidential results must, in my view, be given priority when compared to the announcement by the National Collation Centre of other elections which have no possibility of a re-run.

I am therefore satisfied that the legislature intended that Presidential election results should be processed without any undue delay.

It is, however, not in dispute that the legislature did not specify the period within which Presidential results should be collated, verified, and announced.

Counsel for the applicants said it must be within a reasonable time and relied on the provisions of section 3(1)(b) of the Administrative Justice Act [Chapter 10:28] hereinafter called the Administrative Justice Act.

It provides as follows:

“(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall –

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned.”

Counsel for the respondents contented that the Administrative Justice Act does not apply to the respondents as the Zimbabwe Electoral Commission is not an administrative authority.

Counsel for the applicants contented that it is and relied on its being created in terms of section 3 of the Zimbabwe Electoral Commission Act.

Counsel for the respondents submitted that section 3 of the Zimbabwe Electoral Commission Act has since been repealed and substituted.

He is correct.

The provisions which created the Commission in the Zimbabwe Electoral Commission Act was repealed and substituted by one which provides for the procedure it shall follow and how it shall perform its functions.

The Zimbabwe Electoral Commission, as it now stands, was established in terms of section 61(1) of the Constitution.

Counsel for the applicants countered that, in any event, the second respondent remains within the meaning of “an administrative authority” as defined by section 2 of the Administrative Justice Act, as he is authorized by “an enactment to exercise or perform any administrative power or duty.”

I agree with counsel for the applicants submission as the Chief Elections Officer is employed by the Zimbabwe Electoral Commission (ZEC), in terms of section 11 of the Zimbabwe Electoral Commission Act, and his duties and functions are specified in that section.

The remaining issue on that aspect is whether the establishment of the Zimbabwe Electoral Commission (ZEC) by the Constitution excludes it from the definition of an “administrative authority.”

Counsel for the applicants further submitted that the Zimbabwe Electoral Commission (ZEC) remains an “administrative authority” by virtue of the provisions of Parts I and II of the Schedule to the Administrative Justice Act.

Counsel for the respondents submitted that, that is not the correct way of determining whether or not the Zimbabwe Electoral Commission (ZEC) is an administrative authority.

Counsel for the applicants submission is premised on the fact that the Zimbabwe Electoral Commission (ZEC) is not mentioned among the administrative authorities for which the application of the Administrative Justice Act is limited or excluded.

It is true that the Zimbabwe Electoral Commission (ZEC) is not mentioned in Parts I and II of the Schedule, but, the limitation and exclusion must only apply to those who fall under the definition of “administrative authority”. Those who do not fall within the definition need no limitation or exclusion from the application of the Administrative Justice Act as they are already not affected by its application.

I would therefore agree with counsel for the respondents that the fact that the Zimbabwe Electoral Commission (ZEC) was not mentioned in Parts I and II does not assist in the determination of whether or not it is an “administrative authority.”

Counsel for the applicants sought to establish the validity of the applicant's claim that the Zimbabwe Electoral Commission (ZEC) had acted outside the law by proving that it, as an “administrative authority”, had not announced the Presidential results within a reasonable time.

In my view, the conduct of the Zimbabwe Electoral Commission (ZEC) should be measured against section 61(4)(a) of the Constitution which provides as follows:

“The Zimbabwe Electoral Commission shall have the following functions -

(a) To prepare for, conduct, and supervise -

(i) Elections to the office of President and to Parliament;

(ii) Elections to the governing bodies of local authorities;

(iii) Referendums; and
to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently, and in accordance with the law.”

The standard set by the legislature in the Constitution is for the Zimbabwe Electoral Commission (ZEC) to perform any function required of it by the legislature through the Constitution, the Electoral Act or the Zimbabwe Electoral Commission Act, efficiently, freely, fairly, transparently, and in accordance with the law.

The use of the word “efficiently”, when construed in conformity with the urgency provided for in the Electoral Act, means the Zimbabwe Electoral Commission (ZEC) must act accurately and timeously.

In this case, the question to be answered is: did the respondents act efficiently, fairly, transparently, and in accordance with the law towards the collation, verification, and announcement of Presidential results?

If they did, that should be the end of the inquiry. If they did not, the failure must be identified before this court can intervene and order compliance.

When the above criteria is applied to the facts of this case and the law, as provided in the Electoral Act, the applicants' allegations that there was delay seems to be justified by the legislature's intention that the election results must be processed without undue delay.

This intention is revealed through the provisions which provide for the urgent transmission of polling station returns and constituency returns to the Chief Elections Officer, and how he should conduct the collation, verification and declare the winning candidate.

In the absence of an explanation, the delay between 29 March 2008 and 4 April 2008 seems to be unjustified and points to a lack of efficiency.

The period between the holding of the elections and the date of the application is six days.

Three other elections, involving greater numbers of candidates, were processed and finalized at their levels within two days of the date of the elections.

The work to be done by the Chief Elections Officer is made simpler by the counting and collation done at polling stations and constituency levels. All he has to do is to verify and display the constituency returns and add the figures thereon to identify the winning candidate whom he should forthwith declare the President of Zimbabwe.

This task, should all things being equal, not have taken the second respondent up to 4 April 2008 to announce the Presidential results.

The explanation

The respondents explained the delay through CHIWESHE J's opposing affidavit. In paragraph 18 of his opposing affidavit he said:

“In response to the letter of 2 April 2008, Annexure 'B', I had, prior to receiving the application, which was served on me last night, prepared a press statement, which I intended to release, not only to inform the applicants of the Commission's position on these issues, but to the country and world at large. I attach a copy of the statement and request this honourable court to incorporate it as part of this affidavit. The statement relates extensively and accurately to the correct legal position. This statement is annexed as Annexure 'C'”.

At pp 2 to3 of Annexure “C” he explained that the Zimbabwe Electoral Commission (ZEC) had received several complaints in terms of section 67A of the Electoral Act.

At 2 of Annexure “C” he said:

“In this process, sight must not be lost of the provisions of section 67A(1) of the Electoral Act (Electoral Laws Amendment Act No.17/07) which provides as follows:

'(1) Within 48 hours after a constituency elections officer has declared a candidate to be duly elected in terms of section 66(1), any political party or candidate that contested the election in the ward or constituency concerned may request the Commission to conduct a recount of votes in one or more of the polling stations in the ward or constituency.'

This is a right accorded to a candidate or a political party that contested an election for either of the House of Assembly. The same is also applicable to a Presidential candidate by virtue of the provisions of Part XVIII in section 112, which imports Part XIII of the Electoral Act (where section 67A is found).

For the avoidance of doubt, I relate to this section below:

'Subject to this Part, the provisions of Parts XIII, (other than sections 66, 67, and 68, for which the provisions of the Second Schedule are substituted), XIV, and XV, shall apply, with any changes that may be necessary to an election to the office of President'.”

After explaining the effect of a miscounting, even by one vote, could have on a Presidential election, CHIWESHE J concluded, at pp3 – 4, by saying:

“The Commission, it must be put on record, has received several complaints in terms of section 67A.

The Commission is in the process of considering the evidence submitted, to determine whether a recount should or should not be done? The question, as to whether to order a re-count, or not, is entirely in the discretion of the Commission. This is provided in section 67A(7) which provides -

'The Commission's decision on whether or not to order a recount, and, if it orders one, the, extend, of the recount shall not be subject to appeal.'”

Interpretation of the Law applicable to the explanation

The prospect, of a recount, generated spirited legal arguments for and against it.

Counsel for the applicants submitted that section 67A, being part of section 67, was excluded from the sections which were imported into Part XVII by section 112. He further argued that section 67A does not apply to Presidential elections because it is not found in Part XVII where Presidential elections are provided for.

Counsel for the respondents argued that section 67A is a section of the Electoral Act in its own right and was imported into Part XVII by virtue of its not having been mentioned among the sections excluded by section 112.

I agree with counsel for the respondents because a section in a statute has its own separate existence even if it shares a section number with another section. It is distinguished from the preceding section by the letter added to the section number it shares with the preceding section.

A section in a statute is constituted by the provisions after its section number up to the last subsection under it.

In this case, section 67 ends with subsection (3), and the next section, which is section 67A, follows.

Section 67A was not in the original Electoral Act. It was introduced by section 48 of Act 17 of 2007.

If the legislature intended to make it part of section 67 it would have introduced it into the Act as a sub-section of section 67.

A new section is usually placed in the part of the statute where it fits into the scheme of the Act.

In this case, it was placed between section 67, which provides for the notification of the result of an election, and section 68, which provides for the publication of the names of elected candidates in the Gazette, because that is where a recount conveniently fits into the scheme of the Electoral Act. It determines the winning candidate whose name should be published.

I am therefore satisfied that section 67A enjoys a separate existence from section 67.

Therefore, its exclusion from the sections of Part XIII, excluded by section 112 from importation into Part XVII, means it was imported into Part XVII.

Counsel for the applicants summed up by submitting that even if section 67A is held to be part of Part XVII it does not apply to Presidential elections because they have not yet been announced. He, for that argument, relied on section 67A(1)'s provision that the complaint by a party or candidate must be made within forty-eight hours after a candidate for that election has been declared duly elected.

Counsel for the respondents submitted that the forty-eight hours within which the complaint must be raised, after the winning candidate has been declared, does not apply to Presidential elections because section 112 provides for “necessary changes” in the importation of Parts XIII, XIV and XV into Part XVII.

Section 67A, as already found, is part of Part XVII by virtue of its importation thereto by section 112. It therefore applies to Presidential election results with the necessary changes referred to by section 112.

I however do not agree with counsel for the respondents that the necessary changes extend to the substantive provisions of section 67A.

Where, in a statute, a provision from one Part of a statute is imported into another part of the same statute, to “apply, with any changes that may be necessary” the court interpreting that statute is not allowed to re-enact the relevant provision. It can only make necessary changes to make the provisions fit into the importing Part.

That power is limited to the names of officers who act in the importing Part, the sections empowering them to act, and the places where they are authorized to act, etc.

The substantive provisions cannot be changed. They are in fact the reason for the importation. They are intended to influence the provisions of the importing Part.

In this case, section 67A(1) will, after the necessary changes have been made, read as follows:

“(1) Within forty-eight hours after the Chief Elections Officer has declared a candidate to be duly elected in terms of section 110(6), as read with the provisions of the Second Schedule, any political party or candidate that contested the election for the office of President, may request the Commission to conduct a recount of votes in one or more of the polling stations.”

In its changed form, section 67A(1) means a re-count can only be requested within forty-eight hours after the declaration of the results of the Presidential election.

A recount, before the announcement of the results, is, in terms of section 67A(1), as imported into Part XVII, not provided for.

If the request for a recount, in terms of section 67A(1), is the reason for the delay in announcing the Presidential results, the delay is based on an incorrect interpretation of section 67A(1). It would thus be an invalid reason for delaying the announcement of the Presidential election results.

Counsel for the respondents further submitted that even if the forty-eight hours apply the Zimbabwe Electoral Commission (ZEC), can, on its own initiative, order a recount in terms of section 67A(4) which provides as follows -

“The Commission may, on its own initiative, order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election.”

Counsel for the applicants submitted that section 67A(4) should not be read in isolation, but together with section 67A(1). He submitted that if read in the context of the whole section, it means any re-count contemplated by it can only be done after the announcement of the results.

An analysis of section 67A(4) reveals that the Zimbabwe Electoral Commission (ZEC) can act on its own initiative to order a recount.

It does not state when it can do so as is specified in respect of subsection (1).

The information on which it may act can come from any source - including a complaint as provided in subsection (1). It simply should have reasonable grounds for believing that votes were mis-counted.

If the legislature intended to restrict the first respondent to considering a recount after the announcement it could have made reference to sub-section (1) as is done in subsection (3). The wide discretion given to the first respondent on this aspect is confirmed by the provisions of subsection (7) of section 67A. It provides as follows:

“(7) The Commission's decision on whether or not to order a recount, and, if it orders one, the extent of the recount, shall not be subject to appeal.”

The fact that the Zimbabwe Electoral Commission's decision to recount, and the extent thereof, is not subject to an appeal means that it was intended to act independently and that its decision would be final.

The provision barring an appeal simply means the Zimbabwe Electoral Commission (ZEC) has been given a very wide discretion as to whether or not to order a recount.

The provision that the Zimbabwe Electoral Commission's decision shall not be subjected to an appeal also means this court cannot inquire into that decision.

This should therefore be the end of the inquiry, as the Zimbabwe Electoral Commission's conduct can only be open to the jurisdiction of this court when it strays from the law.

I should therefore find that the reason proffered by the respondents, for their failure to timeously announce the Presidential results, is legally valid. It can, therefore, justify the delay. The respondents have not strayed from the law. This court is therefore not entitled to intervene and order the respondents to announce the results on the basis of failure to comply with the law.

Counsel for the respondents sought costs against the applicants' and their legal practitioners, on the higher scale.

He submitted that the applicants' application was not necessary as the applicants could have sought for information from the respondents. He also relied on the fact that there are no time limits within which the respondents are required to act: a fact which the applicants should have known.

Counsel for the applicants, in response to the issue of costs, said, if any costs are to be ordered they should be on the ordinary scale.

He disputed that the application could have been avoided as their letter of 2 April 2008 was not responded to.

The issue of costs is in the court's discretion. That discretion must be exercised in a manner that does not discourage litigants from approaching the courts.

Electoral matters are very important to candidates, political parties, and the nation.

In this case, the whole nation is waiting for results. The applicants were anxious at the time they made their application. Their legal practitioners wrote a letter expressing anxiety and demanding the results - but did not get a reply till they resorted to this application. They should not be penalized by costs on the higher scale for making an application in circumstances where delay is conceded but has now been explained because of their application.

I would, in the result, dismiss the application with costs on the ordinary scale.

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment.

The grounds of appeal are set out in the Notice of Appeal, which, in relevant part, reads as follows:

"Grounds of Appeal

1. The learned Judge a quo erred in finding that a proper election of Speaker of Parliament was conducted in terms of the Constitution and the law.

2. The learned Judge erred in condoning the first respondent's failure to implement and enforce his own procedures for the election.

3. The learned Judge a quo erred in finding that the participants' exposure of their completed ballot papers was not a violation of the secret ballot.

4. The learned Judge a quo erred in finding that a secret ballot took place.

5. The learned Judge a quo erred in interpreting section 39(2) of the Constitution, as read with Ordinance 6 of the House of Assembly Standing Orders, as directory and not peremptory."

The grounds of appeal set out in the Notice of Appeal, as read with the record and submissions by counsel, raise essentially the following two issues for determination in this appeal –

(a) Whether the exposure of the secret ballot before the depositing of the ballot papers in the ballot box by some Members of Parliament amounts to a violation of the voting by secret ballot, and, if so, whether that rendered the election of the Speaker null and void; and

(b) Whether the failure by the Clerk of Parliament of Zimbabwe (hereinafter referred to as "the Clerk") to control the voting process and the consequent chaotic conditions constitute a failure by the Clerk to conduct an election in terms of section 39 of the Constitution, as read with the Standing Orders.

The background facts of this case are as follows:

The first respondent is the Clerk of the Parliament of Zimbabwe. Pursuant to Proclamation No.7 of 2008, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing the presiding officers.

The Clerk's mandate to conduct these elections is derived from the Standing Orders – in the case of the House of Assembly, Standing Order No.6.

Two candidates were nominated for the office of Speaker, namely, Mr Paul Themba-Nyathi (hereinafter referred to as "Nyathi") and the second respondent (hereinafter referred to as "Moyo").

Standing Order No.6 provides that if more than one person is proposed as Speaker of Parliament, the Clerk shall conduct an election of the Speaker by ballot box.

The election took place and the Clerk announced that Nyathi had garnered ninety-eight votes and Moyo had garnered one hundred and ten votes. The Clerk accordingly declared Moyo the winner. Moyo assumed the office of Speaker.

The appellants want the election of Moyo as Speaker set aside.

I now wish to deal with the issue of whether the election was conducted by secret ballot as is required by section 39 of the Constitution, as read with Standing Order No.6 of the Standing Orders.

The appellants contend that some Members of Parliament from the MDC-T party, having marked their ballot papers in the secrecy of the polling booths, openly displayed their marked ballot papers before depositing them in the ballot box. The appellants contend that the majority of the Members of Parliament from the MDC-T party did this, while the respondents' position is equivocal.

The court a quo, however, concluded that of the two hundred and eight Members of Parliament who voted, most probably only six Members of Parliament displayed their votes in the manner alleged by the appellants. The Members of Parliament who are named as having done this are the Honourable Biti, the Honourable Khupe, the Honourable Chambati, the Honourable Chibaya, the Honourable Denga and the Honourable Moyo, the second respondent. In this regard, the court a quo concluded as follows at p11 of the cyclostyled judgment (judgment no. HH28-10):

"It is fairly clear that Hon. Biti took the lead in brandishing his vote and that several of his colleagues were then emboldened into emulating his possibly impolitic example. However, they did so of their own free will and, more significantly, they did so after having cast their votes in secret."

The conclusion of the court a quo that at least the six Members of Parliament named displayed their ballot papers after marking them but before depositing the ballot papers in the ballot box cannot be faulted.

This conclusion is fortified by the following factors:

It is specifically alleged by the appellants that Moyo displayed his ballot paper before depositing it. Moyo filed an affidavit in this case in which he does not deny this allegation. Five other Members of Parliament are named as having displayed their ballot papers before depositing them in the ballot box. None of these five Members of Parliament have deposed to affidavits denying the allegation.

In my view, it would have been easy for Moyo to secure such affidavits from the named Members of Parliament denying the conduct alleged. Moyo, instead, filed an affidavit from a Member of Parliament, the Honourable Mpariwa, in respect of whom no such allegation was made. The Honourable Mpariwa does not deny that the named Members of Parliament had conducted themselves in the manner alleged by the appellants. Indeed, if anything, she appears to concede that that in fact did occur.

In the result, I agree with the conclusion of the court a quo that at least six Members of Parliament displayed their ballot papers after marking them but before depositing them in the ballot box.

Having concluded that at least six Members of Parliament displayed their ballot papers before depositing them in the ballot box, the issue that falls for determination is the legal consequences of such conduct.

Section 39 of the Constitution provides as follows:

"(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers, or Deputy Ministers:

Provided that a person who is not a member of the House of Assembly shall not be elected as the Speaker unless he is qualified in accordance with Schedule 3 for election to the House of Assembly."

Standing Order 6 of the Standing Orders provides as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot."…,.

The Clerk issued specific instructions on how the secret ballot was to be conducted. According to the second appellant, Moses Mliza Ndlovu, the Clerk issued the following instructions:

"4. The first respondent announced the procedure to the effect that according to the Standing Rules, an election would be held by secret ballot. To this extent, he assured the Honourable Members present that all necessary provisions had been made to guarantee the secrecy of the ballot.

5. The first respondent then explained that in terms of the procedure, he would issue a ballot paper to each Member present. Thereafter, the Member would put a mark against the name of the candidate the Member would wish to be the Speaker of Parliament.

6. The ballot paper had two candidates for Speaker of Parliament, namely, the second respondent nominated by the Movement for Democratic Change (Tsvangirai) (MDC-T) and Mr Paul Themba-Nyathi nominated by the Movement for Democratic Change (MDC).

7. The first respondent then explained that the ballot paper, having been duly marked in secret in a booth, would be folded by the voting Member and deposited in a ballot box.

8. The first respondent then explained that, having cast the vote, the Honourable Member would then leave the House."

The Clerk does not deny that the above accurately reflects the instructions he gave. From the above, three essential elements of the secret ballot emerge –

(a) Each Member of Parliament was to be issued with a ballot paper;

(b) Each Member of Parliament was to mark the ballot paper in the privacy or secrecy of the polling booth; and

(c) Having marked the ballot paper in secret, the Member of Parliament was to fold the ballot paper to maintain the secrecy of the vote and deposit it in the ballot box, thus completing the process of secret voting.

It admits of no debate that the Clerk would then be required to count the vote to complete the process.

In my view, the counting of the votes cast is an essential part of the process of the election by secret ballot….,.

The appellants' case is that Standing Order 6 is peremptory and enjoins the Clerk to conduct an election of the Speaker by secret ballot.

Counsel for the appellants submitted that the display of the ballot papers before depositing them in the ballot box, by some Members of Parliament, is an aberration from the provisions of section 39 of the Constitution, as read with Standing Order 6 of the Standing Orders. He argued that such aberration rendered the election of the Speaker null and void.

Ms Damiso and Mr Chaskalson, for the respondents, submitted that the appellants' complaint is based on a fundamental misconception relating to the nature of a secret ballot.

They submitted that when an election takes place, by secret ballot, each voter has the right to have his or her vote kept secret. This right to secrecy, like any other right, can freely be waived by a voter who chooses to make known how he or she voted. The fact that any voter chooses to disclose how he or she voted cannot in itself compromise the secrecy of the ballot. They submitted that it is only when a voter is factually prevented from maintaining the secrecy of his or her vote that there is a violation of the secrecy of the ballot. On this basis, they argued that the display by six Members of Parliament of their ballot papers before depositing the ballot papers in the ballot box is not a violation of the principle of a secret ballot.

This argument found favour with the learned Judge in the court a quo. In this regard, he had this to say at p11 of the cyclostyled judgment:

"Having regard to the dictionary definitions and the case authorities cited by counsel, the gravamen of a secret ballot, in my view, is that each voter is enabled to cast his vote privately and in secret, without fear of having his voting choice identified or ascertained by others. In this respect, it is incumbent upon the regulating authority to provide the requisite wherewithal for that purpose. The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation, and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."

It was further argued that all that was required of the Clerk was for him to provide the guarantee that Members of Parliament voted in secret if they so wished. Those who wished to penetrate the veil of secrecy, as did the six Members of Parliament, were entitled to do so without contaminating the process.

In support of the above contention, both counsel for the respondents placed reliance on the case of Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T)…, and on the case of J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,.

Mr Chaskalson, in particular, submitted that the right to secrecy of the ballot, like any other right, can freely be waived by any voter who chooses to make known how he or she voted. He further submitted that this point has been made clear by United States judgments dealing with unsuccessful challenges to electoral laws. For this submission, he relied on the following remarks of BROWN J in J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920)…,:

"…, this privilege, of voting a secret ballot, has been held to be entirely a personal one. The provision has been generally adopted in this country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right, at the time of voting, voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are present. Public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it."

Mr Chaskalson also relied on the following passage from State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932)…,:

"…, it has been uniformly held that under such provisions as that contained in section 6 of Article VI of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which might be waived. In State vs Anderson 26 Fla 240, 8 So 1, this Court, speaking through MR CHIEF JUSTICE RAINEY, said:

'The Constitution provides, section 6, Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in position (sic) to know for whom he has voted, or shall know unless the voter shall of his own free will inform him.': COOLEY's Constitutional Limitations m.p. 604 et seq."…,.

Further reliance was placed on the following passage from COOLEY's work Constitutional Limitations 7ed 912:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in position (sic) to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case (sic) of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge on the subject should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged…,."

Mr Chaskalson further submitted that the fact that any voter chooses to disclose how he or she voted cannot compromise the secrecy of the ballot. He argued that if this were the case secret ballots would be open to abuse by voters who, fearing that their candidates were at risk of losing the election, could invalidate a vote by merely waving their ballots about. It is only when a voter is factually prevented from maintaining the secrecy of his vote or her vote that there is a violation of the secrecy of the ballot. He further argued that on the facts of this case there is no suggestion of any such violation of the secrecy of the ballot. Consequently, the primary complaint of the appellants must be rejected.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

However, section 39 of the Constitution, as read with Standing Order 6, is not a constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament.

Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely, the Speaker, is to be elected. It expressly provides that if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the statute is prescribing the method by which a Speaker is to be elected.

The language is peremptory language.

It would be a different story if the wording of Standing Order 6 were to the effect: "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker."

The golden rule of interpretation is that one has to give the words of a statute their primary meaning.

If that rule is applied to Order 6 of the Standing Orders, then, the inescapable inference is that the Order is addressing the Clerk and is dictating to him the manner by which a Speaker should be elected.

In view of the explicit language of the statute, it is not open to the Clerk, or any Member of Parliament, to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.

Voting by secret ballot, as I have already stated, involves the following three essential procedures:

(i) Firstly, that each Member of Parliament receives a ballot paper;

(ii) Secondly, that each Member of Parliament indicates on that ballot paper the candidate of his choice in private and to the exclusion of the public; and

(iii) Thirdly, that, having done so, the Member of Parliament deposits his or her ballot paper into the ballot box privately without disclosing his or her ballot paper to the world.

Once the ballot paper has been deposited into the ballot box the process of voting by secret ballot, so far as the voter is concerned, is completed.

It would not be a violation of voting by secret ballot if the person discloses whom he has voted for at that stage. The voting by secret ballot by the voter is complete: see Steel and Engineering Industries Federation and Ors v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (T).

The next stage to complete the process provided for in terms of section 39 of the Constitution, as read with Standing Order 6, is for the Clerk to count the votes cast to determine the winner.

This stage, in my view, is an essential process in the election of the Speaker of Parliament by secret ballot:

Because of the peremptory language of section 39 of the Constitution, as read with Standing Order 6, the Clerk has no discretion over what procedure is to be followed when electing the Speaker. It has to be by secret ballot. The use of any other method to elect the Speaker would be a failure to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

In casu, the appellants alleged that some Members of Parliament received ballot papers, marked the ballot papers in the privacy of the polling booth, and then, instead of folding the ballot papers to maintain the secrecy of their vote and before depositing them in the ballot box, they displayed them to fellow Members of Parliament to show them how they voted. Thereafter, they deposited the ballot papers in the ballot box.

The court a quo concluded that six Members of Parliament conducted themselves in this manner. The conclusion that only six out of the two hundred and eight voters voted in this manner is supported by the evidence and it cannot be faulted.

The learned Judge in the court a quo also concluded that the six Members of Parliament who displayed their votes complied with the requirement of a secret ballot because they were entitled to pierce the veil of secrecy without falling foul of section 39 of the Constitution, as read with Standing Order 6.

I respectfully disagree with the learned Judge in this regard.

The six Members of Parliament, by displaying their ballot papers before depositing them in the ballot box, violated the secrecy of their ballots, thereby rendering their votes invalid for the purposes of section 39 of the Constitution, as read with Standing Order 6. This rendered their votes ineligible for counting for the purpose of determining the election of the Speaker.

The Clerk proceeded to count these six votes as valid votes in determining the outcome of the election. This contaminated the process.

Put differently, he counted oranges and apples in a process where the law provides that only oranges be counted.

In short, the Clerk failed to act as directed by section 39 of the Constitution, as read with Standing Order 6, namely, to conduct an election by secret ballot. He conducted a cross-breed election, in that it was partly secret and partly open. That is not what the law provides for.

In this regard, I am satisfied that the Clerk failed to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6.

Having concluded that the Clerk did not comply with the statutory requirements in his conduct of the election, the issue that falls for determination is, what are the legal consequences that flow from the failure to comply with the statutory provisions?

Section 39 of the Constitution, as read with Standing Order 6, has directed that the Clerk shall conduct an election of a Speaker by secret ballot but has not provided what should be the consequence of the non-compliance with this peremptory direction by Parliament.

This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from BENNION Statutory Interpretation…, which sets out how courts should approach that issue.

The learned author states that a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply. In that case, I had this to say at pp21-23 of the cyclostyled judgment:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute.

Yet the courts are forced to reach a decision.

It would be draconian to hold that in every case failure to comply with the relevant duty invalidates the thing done. So, the courts' answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of "mandatory" include 'absolute', 'obligatory', 'imperative' and 'strict'. In place of "directory", the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised: see CRAIES Statute Law (7th edn, 1971) p61 n74. However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). {As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)}.'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity.

One of these guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence and therefore the provision is directory."

MAXWELL on The Interpretation of Statutes 12ed…, says much the same as the above cited excerpt from BENNION.

Thus, the issue before this Court is to determine what Parliament intended to be the consequence of the Clerk's breach of the statutory requirement to count only regular votes in determining the outcome of the election of the Speaker.

I have come to the conclusion that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of section 39 of the Constitution, as read with Standing Order 6. I have come to this conclusion for two reasons -

(i) Firstly, because of the peremptory language of the provision in question; and

(ii) Secondly, because of the use of different language from the one used by Parliament when it legislated on the same subject matter in another statute, namely, section 177 of the Electoral Act [Chapter 2:13].

Dealing with the issue of the use of peremptory language in section 39 of the Constitution, as read with Standing Order 6, there can be no doubt that the language of the relevant section is peremptory, having regard to the use of the word "shall".

I accept that there has been movement from the principle of strict exaction of compliance with the wording of the statute to avoid invalidity to a more flexible approach giving the courts some latitude in determining the consequences of non-compliance.

My understanding of the new approach is that, while the use of the word "shall" is no longer conclusive of the intention of Parliament to render invalid non-compliance, it certainly still remains cogent evidence of such intention. This Court has, in a number of recent cases, held that failure to comply with the peremptory direction of a statute leads to invalidity. In this regard, Rule 29 of the Supreme Court Rules provides as follows:

"29 Entry of appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state –

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his legal practitioner."…,.

In Jensen v Acavalos 1993 (1) ZLR 216 this Court held that by use of the word "shall" compliance with the requirement of Rule 29 was peremptory and that failure to comply with the Rule rendered the Notice of Appeal a nullity and that such a notice cannot be condoned or amended.

KORSAH JA, at 219D, had this to say about the Notice of Appeal that did not comply with Rule 29 of the Supreme Court Rules:

"This Notice of Appeal was defective for non-compliance with the mandatory provisions of Rule 29, subrules (c), (d) and (e) which require the applicant or his legal representative to state: (i) whether the whole or only part of the judgment is appealed against; (ii) the ground of appeal to be set forth concisely and in separately numbered paragraphs; and (iii) the exact nature of the relief which is sought."

The learned JUDGE OF APPEAL further stated, at pp219H-220D:

"The Notice of Appeal, being bad for non-compliance with the Rules, was not cured by the filing, on 3 January 1990, of grounds of appeal without a prayer. Indeed, even if the grounds of appeal filed on 3 January 1990 had contained a prayer for relief, it would not have been effectual in validating the defective Notice of Appeal.

The reason is that a Notice of Appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper Notice of Appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O)…, at 183, KLOPPER JP held that a fatally defective compliance with the Rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant Rule.

With this view I most respectfully agree; for if the Notice of Appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC) at 1172I, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse'."

GUBBAY CJ and MANYARARA JA concurred.

In Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) MALABA JA…, expressed the same sentiments when he stated at 149E-G:

"A nullity cannot be amended. In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally defective Notice of Appeal could not be amended was that:'…, it is not only bad but incurably bad.'

Citing Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 for authority, the learned JUDGE OF APPEAL said that what should actually be applied for is an extension of time within which to comply with the relevant Rule and condonation of non-compliance.

In Business Equipment Corp v Baines Imaging Group 2002 (2) ZLR 354 (S), a Notice of Appeal which did not state the date on which the judgment appealed against was given, in contravention of section 29(1)(a) of the Rules of the Supreme Court, was held to be fatally defective, and the procedure stated in Jensen's case supra was approved as the appropriate remedy in having a proper Notice of Appeal placed before the court. See also Talbert v Yeoman Products (Pvt) Ltd S-111-99, SC111-99."

The learned JUDGE OF APPEAL further stated at p150B-C:

"As no valid Notice of Appeal was delivered and filed within fifteen days of the date when the decision of the Labour Court was given, there was no appeal before the court and to merely insert the relevant date in the defective Notice of Appeal, as suggested by Mr Muskwe, without an application for an extension of time within which to institute the appeal and for condonation of non-compliance with the Rules of Court, would be grossly irregular. The matter had to be struck off the roll."

It is quite clear from the above authorities that failure to comply with peremptory language of a statute can lead to a nullity.

Equally, there are decisions of this Court wherein it has been held that non-compliance with peremptory statutory provisions does not necessarily lead to a nullity. See Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) and the cases referred to therein.

The above authorities can be reconciled on the basis that the use of peremptory language is one of a number of indicators of the legislative intent where such intent is not explicitly stated. This obviously is a departure from the principle of strict exaction of compliance with the wording of the statute that I referred to earlier.

In my view, the use of peremptory language, such as the words "shall" or "must" in a statute is no longer conclusive evidence of the intention of Parliament, but remains cogent evidence of such intention.

As I have already stated, I concluded that Parliament intended to render null and void an election in which irregular or invalid votes were counted together with valid votes to determine the outcome of the election of the Speaker for two reasons; namely, the peremptory language of the section and the use of different language from the one used by the Legislature on the same subject matter in a different statute.

The proposition that generally speaking Parliament, just like an individual, uses the same words or language to evince the same intent and different words or language to evince a different intent is grounded in elementary common sense.

MAXWELL on The Interpretation of Statutes 12ed devotes a whole chapter on the presumptions arising from the change of language in statutory interpretation…,. His opening paragraph of this subject matter reads:

"From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning; Ricket v Metropolitan Railway Co. (1867) LR 2 HL 175, per LORD WESTBURY; ex p. Haines [1945] KB 183; Evans v Evans [1948] 1 KB 175.

'Where the Legislature,' said LORD TENTERDEN CJ, 'in the same sentence uses different words, we must presume that they were used in order to express different ideas'; R v Inhabitants of Great Bolton (1828) 8 B & C 71 at p74)."

For the presumption to arise, the change of words does not necessarily have to be in the same section or the same Act. It can be from one statute to another; see MAXWELL on The Interpretation of Statutes…, where the learned author states that:

"There are many modern cases on change of wording, and they fall roughly into three groups, according to whether the language alters (i) within the same section, (ii) within the same Act, (iii) from one statute to another."

For authority for the third category, which bears resemblance to the facts in casu, the learned author cites the following authorities; Att-Gen. for Northern Ireland v Gallagher [1963] AC 349; B v B and H (L intervening) [1962] 1 All ER 29; Re P. (infants) [1962] 1 WLR 1296; Irwin v White, Tomkins and Courage, Ltd [1964] 1 WLR 387; Att.-Gen. of the Duchy of Lancaster v Simcock [1966] Ch.1; Seabridge v H.Cox & Sons (Plant Hire) Ltd [1968] 2 QB 46; Wild v Wild [1968] 3 WLR 1148.

While the authorities cited by MAXWELL relate mainly to historically connected statutes, I see nothing in principle that should limit the presumption to preceding statutes to the exclusion of statutes on the same subject matter but not historically connected. After all, Parliament is presumed to be familiar with its own Acts. The corollary, that Parliament is ignorant of its own Acts, is simply untenable.

Thus, at the time of enacting Standing Order 6, in 2005, in terms of which the Clerk acted, Parliament was familiar with the provisions of section 177 of the Electoral Act, which was enacted earlier. This particular provision has been included in no less than nine electoral Acts in this country since 1928.

In my view, it is permissible for a court to look at the language of another statute on similar or the same subject matter in the exercise to ascertain the intention of Parliament.

Section 177 of the Electoral Act, as appears from its heading, deals with the subject of the consequences of non-compliance with the Electoral Act. It provides as follows:

"177 When non-compliance with this Act invalidates election

An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act clearly provides that it is only when non-compliance with the Act affects the result of the election that the election should be set aside. In effect, this section incorporates into the Electoral Act the doctrine of substantial compliance.

Section 39 of the Constitution, as read with Standing Order 6, provides for the election of the Speaker, but does not incorporate the principle of substantial compliance. In my view, if Parliament had intended that only non-compliance that affected the outcome of the election of the Speaker would render invalid such an election it would have used the same or similar language.

Also, in determining the intention of Parliament, I took into account the fact that no draconian consequences would flow from a declaration of invalidity of the election.

Parliament consists of a little over two hundred Members and ordering a re-election of the Speaker does not pose financial or logistical problems of any magnitude. If properly organised, as it should be, I do not see the election of the Speaker taking more than an hour and it should require only a minimum of resources.

I am also mindful of the fact that Parliament is one of the most revered institutions in our, or any, society. It consists of the highest concentration of political leadership of the country. Parliament makes the laws that we all obey. Parliament should, therefore, lead by example and should scrupulously obey its own laws.

The election of the Speaker should be an example of how an election should be conducted. This is particularly so in Zimbabwe which is plagued by contestation of election results. Parliament should use the election of the Speaker to set the best example to the rest of the country. It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance.

I do not wish to be understood as setting aside the election of the Speaker on the ground that it was chaotic. I am satisfied that the chaos and the conduct of Members of Parliament, generally, did not, on their own, affect the election to the extent that it can be concluded that the Clerk did not conduct an election. I am merely expressing concern that the Clerk failed to stamp his authority on the election and insist that Members of Parliament conduct themselves in accordance with his instructions. I, however, do not think that conduct, alone, is sufficient, on its own, to constitute a basis for setting aside the election of the Speaker.

Before concluding, I feel constrained to make the following observation in the interests of clarity.

I have read the judgment of SANDURA JA.

It is a mis-interpretation of this judgment to conclude that it seeks to reinstate the old principle of strict compliance with the letter of the statute to avoid invalidity. This judgment is based on what I considered to be the intention of Parliament as evinced by the language of the statute, and by contrasting the language of section 39 of the Constitution, as read with Standing Order 6, with the language of section 177 of the Electoral Act.

I also do not agree that the principle that a peremptory enactment must be obeyed was abandoned in the case of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

My understanding of Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S) is that it modified the principle by endorsing the movement away from strict compliance to a more flexible application of the principle. This is the only basis on which one can reconcile GUBBAY CJ's concurrence with the judgment of KORSAH JA in Jensen v Acavalos 1993 (1) ZLR 216 (S) and his judgment in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S). MANYARARA JA concurred with both judgments. This Court re-affirmed the modification of the principle in Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In the result, I have come to the conclusion that the six named Members of Parliament did not vote by secret ballot, and, therefore, their votes were irregular. The inclusion of the irregular votes in the determination of the final outcome of the election of the Speaker constitutes a failure to comply with section 39 of the Constitution, as read with Standing Order 6, providing for the election of the Speaker of Parliament by secret ballot, thereby rendering it invalid.

For the foregoing reasons I would allow the appeal. In the result, I make the following order –

1. The appeal is allowed with costs to be paid by the respondents jointly and severally the one paying the other to be absolved.

2. The order made by the court a quo is set aside and the following substituted –

"The application succeeds and the election of the second respondent as Speaker is hereby set aside."

ZIYAMBI JA: I agree

GARWE JA: I agree

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place.

As the learned CHIEF JUSTICE arrived at the conclusion, with which I disagree, on the ground that the Clerk counted invalid votes as secret ballots, I will deal with the question whether in the machinery for the election of the Speaker, prescribed under section 39(2) of the Constitution, as read with Standing Order 6, the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, automatically nullifies the election.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

Before determining the question whether the applicants established the grounds on which they sought the relief from the court a quo, I set out and construe the law in terms of which the election of the Speaker, by a secret ballot, was required to be conducted.

It is for the Legislature to make provision, by legislation, for matters relating to elections to office in institutions of a democratic Government. All matters relating to the organisation and procedure for election to the office of the Speaker of the House must be determined on the construction of the broad terms of the legislation enacted for the purpose by Parliament.

Section 39(1) of the Constitution imposes on the House an obligation to elect a presiding officer, to be known as the Speaker, at its first meeting after dissolution of Parliament and before proceeding to transact any other business. The election must therefore be held at the time prescribed under section 39(1) of the Constitution.

It is required to be an election by a secret ballot - only a secret ballot under the statute can give rise to a "result of the election."

The right to vote in the election of the Speaker, where more than one person is proposed for the post, is given to members of the House who would have subscribed the oath of loyalty and are present in the Chamber of the House at the time the election is called by the Clerk.

By section 39(2) of the Constitution, as read with Standing Order 6, the Clerk is appointed as the official to conduct the election required by section 39(1) where more than one person is proposed as Speaker. By the same provisions, the Clerk is enjoined to conduct the election of the Speaker by a secret ballot.

When the members elect a Speaker from candidates nominated they do so in their individual capacity. They are not acting as representatives of the people who elected them to the House.

Where the words "conduct the election" are used as they are used in section 39(2) of the Constitution, as read with Standing Order 6, in respect of a situation where more than one person is proposed for election for a post, it is clear that the word "election" is used with the intention that it should be understood to mean the whole combined and continuous process for bringing about the result of the election. It is a process consisting of a number of material steps prescribed by law, beginning with the call for the election and ending in the declaration of the result of the election.

For the purposes of section 39(2) of the Constitution, as read with Standing Order 6, all these steps were driven by the free exercise of the right to vote by the electors directed by the Clerk entrusted with the responsibility of conducting the election by a secret ballot.

The words "conduct the election" compendiously describe the number of duties the Clerk would be expected to carry out to ensure that members who were desirous to elect the Speaker by means of a secret ballot did so freely. So, to "conduct the election" in the context of section 39(2) of the Constitution, as read with Standing Order 6, denotes the concept of legality, in the sense that it contemplates the making of decisions or the taking of actions in the performance of duties, the effect of which is to direct or manage the activities of the voters according to the prescribed requirements of the law to achieve the object or purpose of ensuring the election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot.

In construing section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote vested in the members present and voting at the first meeting of the House is not affected by the requirement that the election should be conducted by a secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.

The Legislature chose the secret ballot for its optimum benefits and prescribed it as the only method by which the elector would validly exercise his or her right to vote for the Speaker. At the same time, it imposed on the Clerk the general obligation to provide the mechanisms and procedures for the recording, processing, and protection of the secret ballot to bring about the election of the Speaker.

Every voter was entitled to express his or her will on the candidates by voting "for" or "against" through the legally permitted form of voting.

As section 39(2) of the Constitution, as read with Standing Order 6, prescribes a secret ballot and its attendant requirements as a condition the elector has to perform if he or she is desirous to give a valid vote for a candidate in the election of the Speaker, it is addressed to both the voter and the Clerk who has to conduct the election by a secret ballot. The validity of a vote and of any act performed by the Clerk must be measured in terms of its conformity with the requirements of a secret ballot prescribed as the essence of the election of the Speaker.

In my view, it is wrong to place on section 39(2) of the Constitution, as read with Standing Order 6, a narrow construction which views it as directed at the Clerk only. The Clerk does not vote. He does not produce the result of the election. His functions are managerial. The elector is the driver of the election by a secret ballot. The Clerk and the voter must be viewed in the context of the legal relationship of the rights and duties they have to exercise or discharge to achieve the statutory objective or purpose.

The prescription of a secret ballot, as the method for the election of the Speaker, is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation, and fear of disapproval by others. The elector is given the right to mark the choice of one candidate from another, or others, in secret. The words "secret ballot" are used in the wide and narrow sense to mean the process by which the ballot is recorded, processed, and protected, as well as the ballot in which there is complete and inviolable secrecy designed to drive away the fear of disclosure and secure to the voter freedom from undue influence, intimidation, and fear of disapproval by others.

A "secret ballot" is therefore a ballot cast freely by a voter, in secret, when no other person is present and aware of what is happening.

The ballot is secret to the voter, in the sense that he or she is the only person who knows for whom he or she is voting.

Whilst the caster of the vote remains unknown, the secrecy of the ballot is maintained and the vote has been effectively cast in the election of the Speaker. It is the valid vote to be counted to ascertain the result of the election of the Speaker by a secret ballot.

To maintain the secrecy, made to be extremely material as the foundation to the validity of the vote itself, the voter must meet certain conditions.

He or she is required not to put on the ballot paper, on which the vote is given, any writing or mark by which his or her identity as the voter can be known by any other person looking at the ballot paper. The voter is also required not to display or expose the ballot paper after he or she has given the vote so as to disclose to any other person for whom he or she voted before depositing the ballot paper in the ballot box.

So essential is the secrecy of the ballot to its validity that any departure by the voter from these conditions, designed for the purpose of ensuring the maintenance thereof, must render the vote void.

The mandatory obligation imposed on the Clerk was to perform the duties put on him to provide the mechanisms and procedures that enabled the voter who was desirous to exercise the right to vote by a secret ballot to do so. The duties he had to perform were to ensure that the vote, given in secret, was recorded, processed, protected, and counted, to bring about the election of the Speaker.

The primary object of any act performed by the Clerk in the discharge of the obligation to conduct the election of the Speaker by a secret ballot would have been the maintenance of the secrecy of the ballot given by the voter, unless the voter himself or herself failed to observe, strictly, the conditions essential to the validity of the vote as a secret ballot. The Clerk, as the official appointed by the Legislature, and given the responsibility of conducting the election of the Speaker by means of a secret ballot, was under an absolute duty not to do anything in the execution of his duties that would have the effect of compelling the voter to violate the secrecy of the ballot.

Although it does not say in express terms that the Clerk cannot record the vote in some other way, it is clear that section 39(2) of the Constitution, as read with Standing Order 6, makes the prescribed manner of recording the ballot by means of a ballot paper, properly drawn up and with the names of the candidates and the appropriate spaces where the mark by which the vote would be given, the only manner in which a secret ballot was to be given.

The Clerk has no discretion as to how the election should be conducted. He must conduct it by a secret ballot.

The valid vote in an election had to be one given for a candidate by means of a secret ballot. It was, therefore, the duty of the Clerk to provide the official ballot papers. It was his duty to put in place the polling booth in which the voters would mark the ballot papers, screened from observation by other potential voters. It was his duty to provide sealed and translucent ballot boxes in which the voters would deposit the marked ballot papers for safekeeping before counting.

The Clerk discharged these duties in accordance with the requirements of the law. He put in the Chamber of the House the polling booth and two ballot boxes and provided the ballot papers.

It was also the Clerk's duty to provide the procedure by which the secret ballot was to be recorded, processed, protected, counted, and results of the election based on it declared.

He, again, complied with this requirement.

The Clerk explained to the members that the voter would only mark his or her vote on a ballot paper delivered by him just before proceeding to the polling booth and that the ballot paper had to have an official stamp marked on the back. Upon receipt of the ballot paper, the member was to go immediately into the polling booth and there mark his or her ballot paper to express his or her choice. The voter was then required to fold the ballot paper up whilst in the polling booth, so as to conceal the vote, and then go and deposit the ballot paper, so folded up, into the ballot box. The voter was required to exhibit to the Clerk the official stamp on the back of the folded ballot paper before dropping it into the ballot box.

The procedure met the purpose of the legislation of ensuring equality of conditions for election to the office of Speaker for the candidates and the occurrence of an election based on universal, equal, direct, and personal suffrage freely expressed by a secret ballot.

It was the duty of the Clerk to monitor the proceedings and keep a continuous oversight of the actions of the voter as he or she moved from the polling booth to drop the ballot paper into the ballot box. In that way he would be able to detect conduct inconsistent with the exercise by the voter of the right to elect the Speaker in accordance with the procedure prescribed to ensure the maintenance of the secrecy of the ballot.

Once he detected such conduct, it was the Clerk's duty to act judicially and determine that the conduct of the voter had stripped the ballot of secrecy and declare the vote invalid and not to be counted.

At the end of the poll, the Clerk was required to open the ballot box in the presence of the agents of the candidates. It was his duty to empty the ballot box and open each and every folded ballot paper and inspect it to ensure that only those ballot papers which were not contrary to the provisions and spirit of section 39(2) of the Constitution, as read with Standing Order 6, as to secrecy, were counted in the election of the Speaker.

Before counting the valid ballot papers, the Clerk was required to group and arrange them under the names of the respective candidates by placing, in separate parcels, those which were secret ballots opposite the name of the same candidate and rejecting all invalid ballot papers.

The results of the election to be declared by the Clerk in an election of the Speaker conducted in terms of section 39(2) of the Constitution, as read with Standing Order 6, would not be the number of votes cast. The reason is that some of the votes would have lost their secrecy as they moved through the process, from the time they were given on the ballot paper in the polling booth to the time they were canvassed after the opening of the ballot box. The result of the election, under section 39(2) of the Constitution, as read with Standing Order 6, is the outcome of secret ballots counted as such.

The result of an election cannot include invalid votes because it is unlawful to count invalid votes as secret ballots. Courts do not ordinarily nullify that which has been done lawfully. Nullification is a remedy intended to be used to redress a wrong.

There is yet another important aspect of the right to secrecy of the ballot which needs to be considered before the determination of the question whether the applicants established the grounds on which they sought relief in the court a quo.

It is that the right to secrecy of the ballot, protected under section 39(2) of the Constitution, as read with Standing Order 6, is subject to the principle that everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. See MAXWELL on The Interpretation of Statutes 12ed…,.

There is no legal obligation that a voter must vote by secret ballot.

The requirement of a vote by a secret ballot is justified on the principle which, without unacceptably encroaching on the rights of the persons concerned to stay out of the prescribed system of election, fosters the values of honesty, freedom, and reliability that should characterise electoral choice. As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.

The right to vote by a secret ballot includes the right of the voter to disclose to any other person for whom he or she voted. He or she can, in the exercise of that freedom, decide to put a writing or mark on the ballot paper at the time he or she casts the vote by which he or she can be identified as the voter and for whom he or she voted. He or she may decide to display to others the ballot paper so as to share the knowledge for whom he or she voted. So, a voter can, of his or her own free will, inform whomsoever he or she chooses for whom he or she voted. A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned.

The rule that there should be no writing or mark put by the voter on the ballot paper by which his or her identity as the voter can be revealed, and that the ballot paper should not be displayed to any other person so as to disclose for whom the vote was given, prescribes a condition of the validity of the vote.

The question whether there is a secret ballot for the purposes of the validity of the vote will depend for its answer on the actions of the individual voter.

In Jenkins v Board of Elections 180 NC 169 (1920), cited by Mr Chaskalson, it is correctly stated by BROWN J that:

"…, voting by ballot, as distinguished from viva voce voting, means a secret ballot, and…, the elector, in casting his ballot, has the right to put it in the box and to refuse to disclose for whom he voted and that he cannot be compelled to do so. But, this privilege of voting a secret ballot has been held to be entirely a personal one. The provision has been generally adopted…, for the protection of the voter and for the preservation of his independence in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot."

In State Ex Rel. Hutchins v Tucker et al 106 Fla 905 (1932), also cited by Mr Chaskalson in argument, BUFORD CJ quoted from COOLEY Constitutional Limitations 7ed…, where the learned author states:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in a position to question his independent action either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and, for the same reason, we think others who may accidentally or by trick or artifice have acquired knowledge on the subject should not be allowed to testify to such knowledge or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it, his ballot is absolutely privileged."

I turn now to determine the question whether the applicants established the grounds on which they based the application for the relief sought.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

The second ground was based on the allegation that it was unlawful for the members of the MDC-T party who displayed their ballot papers to do so and for the Clerk not to stop or prevent them from doing what they did.

The intention was to show that the actions of the voters concerned, and the failure to act by the Clerk, undermined the process by which the object of the electoral law was to be achieved, thereby violating the rights of the applicants to elect the Speaker, or be elected as the Speaker, by a secret ballot. In that regard, the first applicant said, in the answering affidavit:

"100: It is particularly notable that (the) second respondent himself was one of the Honourable Members from the MDC-T party that unlawfully opened and displayed their marked ballot papers and this fact alone, which is captured in the DVD evidence, is enough to show that his claim to be Speaker is legally vacuous….,.

103. The fact that some Honourable Members, actually most of them belonging to (the) second respondent's MDC-T party including (the) second respondent, defiantly opened and displayed their marked ballot papers simply means that there was no lawful election and (the) second respondent is wishfully wrong to claim that he was lawfully elected from an election that was in fact unlawful."…,.

The applicants invariably described the conduct of the members of the MDC-T party, in displaying their ballot papers to others so as to disclose for whom they had voted, in terms which show that they considered the conduct unlawful.

They said it was "shocking behaviour"; "a brazen violation of the secret ballot"; a "deliberate and defiant violation of the election procedure"; "open and defiant violation of the secret ballot"; "blatant misconduct"; "the failure to observe and respect a fundamental Parliamentary Rule in the election of (the) Speaker"; "the rampant and systematic violation of the secret ballot"; "the failure to conduct the votes in secret as required"; and "an irregularity which is a grave breach of the Rules of Parliament."

The effect of the contention advanced by counsel for the appellants, on appeal, was that the members of the MDC-T party, who displayed the ballot papers to others so as to disclose for whom they had voted, had no right to do so.

In paragraph 6 of the answering affidavit, the first applicant emphasised the fact that he considered the failure by the Clerk to stop or prevent the members of the MDC-T party who displayed their ballots from doing so as unlawful. He said:

"6. His failure principally arose from his inability or unwillingness, for whatever reasons, to ensure that no Member left the polling booth, after voting, with an unfolded ballot paper, and that no Member openly displayed his or her marked ballot paper to any other Member for whatever reason."

In paragraph 178 of the answering affidavit, the first applicant summarized the issue for determination by the Court as follows:

"At issue is only the unchallenged fact in the papers, namely, that unfolded and marked ballot papers were displayed by many Honourable Members of the MDC-T party, including (the) second respondent, outside the polling booth during the election and that this was in violation of the procedure that marked ballot papers should be folded in the polling booth and (the) first respondent did nothing to stop this violation."

Counsel for the appellants argued, on appeal, that the failure by the Clerk to prevent or stop the members of the MDC-T party from displaying their ballot papers was evidence of breach by him of the duty to conduct the election of the Speaker by a secret ballot.

The court a quo found, on the facts, that only six members of the MDC-T party were shown to have come out of the polling booth with unfolded ballot papers and to have displayed the ballot papers to others so as to disclose for whom they had voted.

The finding was, again, justified.

Although the first and second applicants had alleged, in their affidavits, that "many" members of the MDC-T party had displayed their ballots, no evidence was produced to support the allegation.

The use of the word "many", in a case in which they were not able to state the number of the members of the MDC-T party who acted in the manner alleged, suggests that there was an element of exaggeration.

This is particularly so when regard is had to the fact that the applicants also said "some" members of the MDC-T party displayed their ballot papers so as to disclose to others for whom they had voted.

Given the fact that the applicants were seeking an order of nullification of the election, it was necessary that their case be based on clear evidence of the number of voters who displayed their ballot papers. The legal consequence would have been that the voters concerned had disenfranchised themselves by their own conduct.

Proceeding as the parties did on appeal, on the basis that six members displayed their ballots so as to disclose for whom they had voted, did the applicants show that those voters acted unlawfully? Did they ipso facto show that the Clerk acted unlawfully in failing to stop or prevent those voters from behaving in the manner they did?

I must add that the only reasonable inference from the circumstances of the case is that the six members displayed their ballot papers to other members of the MDC-T party to disclose to them that they had voted for the second respondent.

All members, including the six who displayed their ballot papers, had the right to waive the right to the secrecy of their votes.

In displaying the ballot papers to others, the six members exercised their right to share with any other person the knowledge for whom they voted.

As long as they were not coerced or compelled to expose their ballot papers to others, the voters acted lawfully. The power conferred on the Clerk, to conduct the election of the Speaker by a secret ballot, is limited by the right of the voter not to maintain the secrecy of his or her ballot.

The Clerk was not under any duty to stop or prevent the voters from voluntarily displaying their ballot papers to others so as to disclose for whom they had voted.

Whilst the duty on the Clerk, to maintain the secrecy of the ballot given by the voter, requires that he should refrain from doing anything that would compel the voter to disclose to any other person how he or she voted, it cannot be relied upon to justify conduct by which the voter would be prevented from freely exercising the right to disclose to whomsoever he or she chooses for whom he or she voted because the secrecy of the ballot is protected under the law for the benefit of the voter.

The Clerk owed the duty not to do anything to compel the voter to disclose for whom he or she voted to the voter. He cannot discharge the duty to the detriment of the interests of the voter by preventing or stopping him or her from exercising the right of disclosure of information as to how he or she voted.

It is clear that the duty on the Clerk was not to interfere with the recording, processing, and protection of a secret ballot as long as the voter maintained the secrecy of the ballot.

The applicants did not show that the Clerk acted unlawfully by not stopping or preventing the six members from displaying their ballot papers to others so as to disclose that they had voted for the second respondent. His duty was to manage and direct the activities of the electors in accordance with the rules designed to ensure a free and fair election by a secret ballot.

The applicants failed to establish the two grounds on which they sought the relief from the High Court by way of an order declaring the election of the second respondent as the Speaker of the House null and void and set aside.

The application ought to have been dismissed at that stage of the proceedings.

As I disagree with the learned Judge, on the comments he made on the legal consequences of the conduct of the six members in displaying their ballot papers to others so as to disclose for whom they voted, and also disagree with the learned CHIEF JUSTICE on the conclusion he reached that the counting by the Clerk of invalid votes cast by the six members as secret ballots nullified the election of the second respondent as the Speaker of the House, and not just the affected votes, I proceed to express my opinion on these matters.

The words "shall conduct the election of Speaker by a secret ballot" are placed in a statute by the provisions of which the Legislature recognised the possession by the members of the House present at its first meeting of the right to vote for the Speaker by a secret ballot.

The rule of law is that a right to vote must be exercised strictly according to the terms of the statute which confers it.

What this means, on the facts of this case, is that when the six members displayed their ballot papers to others, so as to disclose for whom they had voted, they voluntarily took their votes out of the system of the election by a secret ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6. By the same conduct by which they waived the right to the secrecy of their ballots, the voters lifted the veil of secrecy from the ballots rendering them void and of no value in the election of the Speaker.

I do not accept, as a correct statement of the law, the contention advanced by Mr Chaskalson and Ms Damiso, on behalf of the respondents, and accepted by the learned Judge in the court a quo, that the six ballots remained valid votes, notwithstanding the fact that they had been displayed by the voters concerned to others so as to disclose for whom they had been given.

The learned Judge, at p11 of the cyclostyled judgment, said:

"The courts should not interfere unless it is shown that the objective conditions put in place for the election precluded the possibility of a secret vote. Beyond this, it is then a matter purely for the individual voter if he chooses to divulge, whether publicly or in private, the specific manner in which he has cast his vote. If he does so of his own volition, without any external coercion or intimidation and howsoever his conduct might influence other voters, this cannot detract from the secrecy of his vote or vitiate the secrecy of the ballot as a whole."…,.

The statement that, a voluntary display by a voter of the ballot paper so as to disclose to other people for whom he or she voted does not "detract from the secrecy" of the vote, cannot be a correct statement of the legal effect of such conduct on the secrecy of the ballot affected.

The object of the ballot prescribed under section 39(2) of the Constitution, as read with Standing Order 6, is to secure complete secrecy as a condition of its validity, to be maintained not only by the voter desirous to elect the Speaker but by the official entrusted with the responsibility of conducting the election by a secret ballot during the electoral process, including the time when the counting of the votes takes place.

How can the official be able to maintain complete secrecy of a ballot in the face of conduct by the voter which removes the secrecy from the ballot? How the ballot can retain its secrecy thereafter I cannot imagine.

The secrecy is conferred on the ballot at the time the vote is given on the ballot paper in the polling booth. It must, however, be maintained thereafter to ensure the validity of the vote in the election of the Speaker.

It is clear, from the object of the statute and the procedure for voting, that a ballot paper which has a writing or mark made on it by which the identity of the voter can be known or one that is displayed to other people so as to disclose for whom the vote was cast, gets stripped of the secrecy of the ballot. The secret as a secret ceases to exist.

The ballot becomes void and cannot be counted in the election by a secret ballot.

The view expressed by the learned Judge did not take into account the effect of the requirement of the procedure provided by the Clerk for voting by a secret ballot.

The duty put on the voter desirous of maintaining the validity of his or her ballot in the election of the Speaker was that, after marking the ballot paper in the privacy of the polling booth, he or she would fold the ballot paper so as to conceal the ballot and keep it so folded until he or she deposited the ballot paper in the ballot box for safekeeping. The rule was to ensure the preservation of the secrecy of the ballot for the purpose of its validity in the election.

The direct effect of the voter displaying the ballot paper to other people, so as to disclose to them for whom he or she voted, is the invalidation of the ballot as a secret ballot.

Without pretending that there was no criterion by which a secret ballot had to be identified, I think the conclusion that the ballots displayed by the six voters to others, so as to disclose to them for whom they had voted, did not lose their secrecy, does not accord with what seems to have been the intention of the Legislature.

The proposition that the invalidity of the votes does not occur at the time the ballot papers are displayed so as to disclose for whom the vote was given would create a situation which would be quite unclear, and, to a certain extent, even illogical. Every exercise of a right has a direct consequence. The exercise of the right to vote which removes the secrecy of the ballot cannot have the same consequence as the exercise of the right which maintains the secrecy of the vote.

Failure by the Clerk to respond to the actions of the six voters and formally declare the ballots void did not change the fact that the ballots had been rendered invalid by the very actions of the voters.

The votes remained invalid at the time the Clerk counted them as secret ballots. He was not under any duty to count invalid votes as secret ballots. The statute is, in effect, clear that in no case will votes be allowed which are in any form other than the form of a secret ballot.

The result of the election of the Speaker, by a secret ballot, was not the number of votes cast, as some of them would have lost the essential element of secrecy as they travelled in their journey from the time they were cast to the time of counting. The result of the election was who was elected by a secret ballot.

The counting of invalid votes that had lost their secrecy affected two classes of voters:

(a) The first class is of voters who deliberately exercised their right to waive the benefits of the secrecy of the ballot by displaying the ballot papers to others so as to disclose for whom they had voted.

(b) The second class is that of voters who kept the knowledge for whom they voted to themselves.

The first class of voters had no right or legitimate expectation that their votes would be counted as valid votes. In this case, they did not, as a matter of fact, seek to enforce any such right or legitimate expectation. They appreciated the fact that they did not have such a protection. If anything, the legitimate expectation would have been that the votes they had voluntarily stripped of secrecy be not counted as secret ballots.

The second class of voters had the right or legitimate expectation that their votes and the election based on them be declared lawful. The applicants belonged to this class of voters. It appears that they are acting against their own interests and those of other voters in this class.

What right did they seek to protect or enforce by an order of nullification of the election?

If it is the right to a fair and free election by a secret ballot, they had to first show that it was violated by the respondents. They failed to show that violation.

Where there is proof of violation of electoral rights, such as the right to vote or to stand for election, the need to enforce the rights under judicial protection may require that the election be set aside if it was shown that the violation had undue influence on the result of the election.

There cannot be a remedy without proof of violation of a right.

The learned CHIEF JUSTICE reached the conclusion that nullification of the election was the only remedy for the unlawful conduct by the Clerk, of counting invalid votes as secret ballots. The reason was that, whilst imposing on the Clerk the mandatory obligation to conduct the election of the Speaker by a secret ballot, section 39(2) of the Constitution, as read with Standing Order 6, did not provide a remedy for the disobedience of the command.

The conclusion that nullification of the election was the only remedy for what, in reality, was a nullity in respect of the six votes, could only have been reached by implication of what is the intention of Parliament. It would be based on a construction of section 39(2) of the Constitution, as read with Standing Order 6, which presumes that it is the intention of the Legislature that voters who had complied strictly with the law and voted by a secret ballot for the Speaker should lose their valid votes on account of a failure by an official to discharge his duty not to count invalid votes as secret ballots.

The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain, from the language by which the obligation is imposed, whether it is the intention of the Legislature that nullification of the offending conduct should be the remedy to be awarded without any limit as to the scope of its operation or application.

MAXWELL on The Interpretation of Statutes 12ed…, summarises the principles to be applied as follows:

"…, when a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance: is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)?

In some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the regard to them involving nothing more than liability to a penalty, if any, were imposed for breach of the enactment.

'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' Woodward v Sarsons (1875) LR 10 CP 733.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory.

'No universal rule', said LORD CAMPBELL LC, 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' Liverpool Borough Bank v Turner (1860) 2 De. G F & J 502 at pp507, 508.

And LORD PENZANCE said:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.' Howard v Bodington (1877) 2 PD 203 at p211."

See also Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).

There is no question that section 39(2) of the Constitution, as read with Standing Order 6, is a mandatory enactment, the subject-matter of which is the election of the Speaker of the House. The object of the statute is to secure an election of the Speaker by members of the House qualified to vote by a secret ballot. The object is also to ensure, by the imposition of the obligation on the Clerk to conduct the election of the Speaker by a secret ballot, that there is provided mechanisms and procedures for the recording, processing, protecting, and counting of the secret ballot.

In other words, it is to ensure the establishment of an effective system for the election of the Speaker by a secret ballot conducted fairly, efficiently, and impartially.

The Clerk did put in place the mechanisms and procedures for the recording, processing, protection and counting of secret ballots.

Of the two hundred and eight members who voted, two hundred and two complied strictly with the requirements of the law for the exercise of their right to vote for the Speaker by a secret ballot - that is the main object for the achievement of which the provisions of section 39(2) of the Constitution, as read with Standing Order 6, were enacted.

He had assembled together all the necessary mechanisms which were required by the law governing the election to be put in place at the time prescribed to ensure delivery of the election of the Speaker by a secret ballot.

The six members who displayed their ballot papers to others, so as to disclose for whom they had voted, did so in the context of the mechanisms and procedures.

The failure committed by the Clerk was not to declare the invalid ballots void. It was the unlawful conduct of counting invalid ballots as secret ballots that has been used as a justification for the proposed award of the order of nullification of the election of the Speaker.

The disobedience did not relate to a secret ballot.

In other words, it is not a case of the Clerk failing to record, process, or count a secret ballot or declaring a secret ballot to be an invalid vote.

Had that been the case, the result of the election of the Speaker would have been affected by the disobedience of the Clerk to the duty to conduct the election of the Speaker by a secret ballot.

He had no power to decide what should be counted to ascertain the result of the election. He was told by the law what to count and for what purpose.

In this case, the Clerk counted what was at law a nullity as a secret ballot. His conduct did not give value to the invalid votes and did not in any way affect the result of the election of the Speaker.

The discounting of the invalid votes as well as the declaration of the conduct of the Clerk to be unlawful would not give rise to any difficulty in the determination of who the winner of the election of the Speaker was. The result of the election would not change.

The nullification of the election, based on a secret ballot, would subvert the purpose of the statute.

The general rule is that a declaration of nullity must be confined to the conduct in respect of a particular vote or class of votes, the invalidity of which has been established, unless the non-observance of the requirements of the law governing the specific duty is of a character which is contrary to the principle of an election by a secret ballot and is so great that it might have permeated the process and affected the result of the election: Phillips v Goff (1886) 17 QB 805.

There are numerous cases in which courts have struck off the invalid votes and declared conduct in respect of them void without affecting the election. The principle applied has been that to nullify the results of the election based on votes given by a secret ballot in strict compliance with the requirements of the law governing the election would imply that the provisions of the law complied with are misleading.

Had the Clerk declared the invalidity of the six votes at the appropriate stage in the election process, the declaration would have affected those votes only and not the other votes validly cast.

Why should the court, upon review of his conduct, in failing to do the right thing at the right time, go farther than the remedy the law had placed at his disposal had he acted lawfully?

The purpose of voting is not only the differentiation of the electorate and the expression of the will of the individual voters but also the ability to accept such decisions based on the will of the majority.

In my view, the principle of majority rule, on the basis of which results of democratic elections are determined, requires that courts should refrain from interfering with the will of the majority of voters expressed in accordance with the requirements of the law, on the ground that the official entrusted with the responsibility of conducting the election by a secret ballot unlawfully counted non-secret ballots as secret ballots - especially where there would be no confusion at all as to who is the winner following the discounting of the invalid votes.

An election may be set aside if it is not clear, upon determination of the conduct forming the ground on which the validity of the election is impugned, who was the winner.

In this case, there is clear evidence of the election of the Speaker of the House in accordance with the mode of voting prescribed by the law governing the election concerned.

The general principles of the law on which I have based my decision in this case and believe are applicable in the resolution of the questions raised were stated by LORD COLERIDGE CJ in Woodward v Sarsons (1875) LR 10 CP, referred to with approval in Chanter v Blackwood (1904) 1 CLR 39…,. He said:

"As the first point, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws.

As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved, to its satisfaction, that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer.

This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a Returning Officer, or by other such acts or mishaps.

And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void….,."

I am of the view that the construction of section 39(2) of the Constitution, as read with Standing Order 6, for the purpose of establishing the intention of the Legislature regarding the nullification of the election for the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, does not justify the conclusion that it is the intention of the Legislature that breach of any of the numerous duties imposed on the Clerk, under the general obligation to conduct the election of the Speaker by a secret ballot, should attract an order of nullification of the election regardless of the nature of the neglect of duty and its effect on the "result of the election".

There can be no doubt that the majority of the voters freely expressed their preference of the candidate they wished to be the Speaker in the secrecy of the polling booth and exercised their right to maintain the secrecy of the ballot in accordance with the requirements of section 39(2) of the Constitution, as read with Standing Order 6.

The majority of the voters were enabled by the process conducted by the Clerk to freely elect, by a secret ballot, the Speaker from the two candidates.

To declare such an election void would be to declare void what is lawful.

The remedy awarded would be wholly disproportionate to the wrong committed. There was, in fact, no failure by the Clerk to conduct the election by a secret ballot within the meaning of the statute. The ballots which were effectively cast decided who was elected as the Speaker of the House.

The fact that the Clerk counted invalid votes as secret ballots because he had not seen the conduct by which they were rendered void did not change their invalid status.

The question is whether the purpose for which the powers to conduct the election of the Speaker by a secret ballot were conferred on the Clerk was fulfilled.

A close interpretation of the facts leads to the conclusion that the purpose of the statute was accomplished.

An appropriate remedy is one which accords with the intention of the Legislature.

In this case, it is the one that upholds the result of the election of the Speaker by a secret ballot.

The valid result is that the second respondent was elected the Speaker of the House by a majority of voters who cast secret ballots.

It would, in my view, be contrary to fairness and justice to say, as a matter of principle, that the Legislature intended that the election of the Speaker conducted by a secret ballot in terms of the law be nullified on account of, say, a single invalid vote counted by the official conducting the election as a secret ballot. The intention of the Legislature must be that only irregularities which undermined the achievement of the object or purpose of the legislation, of ensuring an election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot, should vitiate the election.

In the exercise of review powers, the court a quo came to the conclusion that the improper counting of invalid votes as secret ballots was not an irregularity of the class the Legislature intended would vitiate the election.

The conclusion is, in my view, not evidence of a misdirection on the part of the court a quo.

It is when the irregularity affected the actual discharge of the positive duty to conduct the election by a secret ballot, and not by any other type of vote, that it may be used as a ground for challenging the validity of the election by a secret ballot.

The Legislature prescribed the standard which had to be used by everyone, including the court, as an accurate and reliable criterion for determining the ballot papers which had to be counted to ascertain the result of the election.

Applying the test, the Clerk came to a wrong conclusion in respect of the six ballots cast for the second respondent. They were not secret ballots qualified to be counted.

The court a quo was, on the facts, in a position to apply the criterion to the ballot papers and arrive at the conclusion the Clerk ought to have reached in respect of the invalidity of the six ballots had he properly applied the prescribed test.

If it had to set aside anything, the court a quo should have set aside the counting of the ballot papers made by the Clerk and not the election itself.

The legality of the election was dependent upon the will of the electorate having been freely expressed by a secret ballot reflected by accurate and reliable results. The unlawful act of counting six invalid votes as secret ballots because of the wrong application of the prescribed standards of differentiating secret ballots from non-secret ballots did not disable the court, which had jurisdiction to do so, from objectively scrutinising the facts and obtaining a reliable result of the election. The court would be acting within the bounds and limits of the requirement that there should have been brought about an election of the Speaker by secret ballot on the basis of universal, equal, direct, and personal right to vote freely expressed according to the principle of majority rule.

I would therefore dismiss the appeal....,.

The appeal is dismissed with no order for costs.

Seven days after the declaration, on 3 August 2013, of the results of the Presidential election (hereinafter referred to as “the election”) held on 31 July 2013, showing Robert Gabriel Mugabe (hereinafter referred to as “the first respondent”) as the winner of the election, Morgan Tsvangirai (hereinafter referred to as “the petitioner”), who was one of the candidates contesting the election, lodged with the Constitutional Court (hereinafter referred to as “the Court”) a petition challenging the validity of the election under section 93(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as “the Constitution”).

The petitioner used fourteen grounds for challenging the validity of the election which he alleged constituted corrupt practices committed by the first respondent through his agents or by third parties with his knowledge.

He also alleged irregularities which he said were committed by the second and fourth respondents, who were responsible for conducting the election.

It was the petitioner's averment, that, the said acts, which were allegedly committed in violation of the provisions of the Electoral Act [Chapter 2:13] (hereinafter referred to as “the Electoral Law”), had materially affected the validity of the election.

He prayed for an order declaring the election invalid and setting it aside and for a fresh Presidential election to be held within sixty days after the determination.

The respondents opposed the petition on the ground, that, the petitioner had lodged it when he had no evidence to prove the allegations of commission of corrupt practices and irregularities in the conduct alleged against them. They prayed for dismissal of the petition with costs.

The petition was set down for hearing at 10am on 17 August 2013.

At 17:25 hours, on 16 August 2013, the petitioner filed, with the Constitutional Court, a document titled “Notice of Withdrawal of the Petition” (hereinafter referred to as “the notice of withdrawal”). The notice of withdrawal was accompanied by an affidavit in which the petitioner gave reasons for wanting to withdraw the petition.

The reasons confirmed the accusations, by the respondents, that, the petitioner had lodged the petition and made the allegations of commission by them of corrupt practices and irregularities in the election when there was no evidence to support them.

The relevant parts of the affidavit of the purported withdrawal read as follows:

“1. It is with deep regret and sadness that I find myself having to depose to this affidavit which I present for purposes of explaining the reasons behind the withdrawal of the Election Petition just filed by my legal practitioners at my specific instance.

2. It is common cause that I filed a petition challenging the outcome of the Presidential Election in terms of its processes and outcome.

3. In the petition, various allegations regarding the conduct of the election by the second respondent were made, which allegations touch on the credibility and authenticity of the voting material which is currently under the control of the second and third respondents.

4. In order to gain access to voting material and other documents and information two urgent chamber applications were filed under case EC27/13 and EC28/13. Whilst arguments were advanced on the points in limine, judgment was indefinitely reserved in the matter. The merits have not been heard.

5.– 6…,. 7. As at the time of deposing to this affidavit (15:43 hours on Friday 16th August 2013), the judgment(s) in the applications for the materials had not been delivered. This, in my view, seriously handicaps my prosecution of the petition and it has rendered it impracticable for me to proceed with same.

8. I draw attention to the fact, that, I had specifically indicated, in my petition, that such material would be needed for the purposes of prosecuting the petition. The fact that I still do not have the material means that I cannot meaningfully prosecute my petition.

9.– 11…,. 12. I am also aware, that, the first respondent addressed crowds at the National Heroes Acre during the Heroes Day celebration on 12 August 2013. I am further aware, that, he made further unsavoury comments in which he criticised my decision to approach this Court. The fact that the CHIEF JUSTICE was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my enjoyment of the constitutional right to a fair hearing.

In this regard, I make no imputation, gratuitous or otherwise, about the integrity of the honourable CHIEF JUSTICE. My concern is with the conduct of the first respondent.”

The question that arose from the proposed withdrawal of the petition was whether or not section 93 of the Constitution, which is a complete Code on matters relating to a petition or application challenging the validity of an election of a President lodged with the Constitutional Court, under subsection (1), provided for withdrawal of the petition or application as a right.

In the notice of withdrawal, and the affidavit accompanying it, the petitioner made no reference to a provision of the Constitution under which a right to withdraw a petition or application lodged with the Constitutional Court under sub-section (1) of section 93 of the Constitution is conferred....,.

Mr Mehta, representing the petitioner, argued, that, section 178(1) of the Electoral Act [Chapter 2:13] (the Electoral Law) provides a right to withdraw at any time an election petition presented by a candidate to the Electoral Court complaining of an undue election or an undue return. He argued that the provisions of section 178(1) of the Electoral Law were applicable to a petition lodged with the Constitutional Court under section 93 of the Constitution.

The legal practitioners for the respondents, and the Attorney-General, argued on a constitutional principle, that, every act claimed as a right under the Constitution must be traceable to a particular provision of the Constitution. The only section of the Constitution in terms of the provisions of which a right to withdraw a petition lodged with the Constitutional Court would have been given to a petitioner is section 93 of the Constitution.

The contention was, that, as section 178 of the Electoral Act (the Electoral Law) concerned election petitions presented to the Electoral Court, its provisions were not applicable to a petition or application lodged with the Constitutional Court under section 93(1) of the Constitution.

The argument was that the use of the words “subject to this section” at the beginning of section 93 of the Constitution makes the provisions thereof exclusive and overriding in effect on subject-matters relating to the preparation, lodgment, hearing, and disposition of a petition or application lodged with the Constitutional Court under subsection (1).

At the end of the hearing of the parties on the question of the legality of the proposed withdrawal of the petition, the Constitutional Court agreed with the respondents, that, the Constitution contained no provision for withdrawal of a petition or application lodged with it under section 93(1) of the Constitution. It held that the petitioner had no right to withdraw the petition.

The hearing of the petition then commenced.

Mr Mehta indicated that he had no meaningful submissions to make on the merits of the petition. He said his instructions were not to prosecute the petition any further than what was contained in the papers filed of record.

Counsel for the first respondent argued, that, the petition was the weakest document ever lodged with the courts in the country challenging the validity of an election.

Advancing the position taken by the first respondent in the opposing affidavit, he argued that the petitioner knew, at the time of preparation and lodgment of the petition, that, he had no evidence to prove the serious allegations of commission of corrupt practices he made against the first respondent. He adhered to the written heads of argument which addressed each of the allegations of commission of corrupt practices made against the first respondent.

Counsel for the second, third, and fourth respondents, made reference to the contents of the opposing affidavit deposed to by the third respondent on behalf of the second respondent and supporting documents filed of record to show that the accusations of commission of irregularities in the conduct of the election by the second, third, and fourth respondents were unfounded.

Counsel for the Attorney-General advanced the same argument as the respondents, to the effect, that, the petition was lodged without any evidence to support the allegations on which the validity of the election of the first respondent as President of Zimbabwe was being challenged.

After hearing submissions from the respondents' legal representatives, the petitioner having indicated, through his legal representative, that, he had no meaningful submissions to make on the merits of the petition, and, having evaluated and assessed all the evidence presented and contained in the papers, the Constitutional Court came to the conclusion that the petition had no merit.

Consequently, the petition was dismissed, and, an order made, on 20 August 2013, in the following terms:

“IT IS DECLARED:

1. THAT the Zimbabwe Presidential election held on 31 July 2013 was in accordance with the laws of Zimbabwe and in particular with the Constitution of Zimbabwe and the Electoral Act [Chapter 2:13];

2. THAT the said election was free, fair, and credible. Consequently, the result of that election is a true reflection of the free will of the people of Zimbabwe who voted; and

3. THAT Robert Gabriel Mugabe was duly elected President of the Republic of Zimbabwe and is hereby declared the winner of the said election.”

Immediately after the close of the poll, the presiding officer shall, in the presence of such candidates and their chief election agents or election agents as are present, close and seal the aperture in the ballot box. He or she shall thereafter make up into separate packets sealed with his or her own seal and with the seals of those candidates and election agents, if any, who desire to affix their seals -

(i) The unused and spoilt ballot papers and counterfoils of the un-used ballot papers placed together;

(ii) The counterfoils of the used ballot papers, including the counterfoils of the spoilt ballot papers;

(iii) The register of assisted voters.

At the time of counting the votes, the presiding officer shall also open each sealed packet containing the un-used and spoilt ballot papers and the register of assisted voters.

The count is done in the presence of the following persons -

(i) The presiding officer and such polling officers as he or she may consider necessary and not more than the prescribed number of monitors and observers;

(ii) The candidates, and every chief election agent and election agent of each candidate, or, in certain circumstances, of each political party who, at the time of the commencement of the counting, is present within the polling station or in the immediate vicinity of the polling station. A candidate or his or her chief election agent or election agent need not be present at the counting of the votes at an election for which that candidate was not nominated; and

(iii) Any roving political party election agent who, at the time of the commencement of the counting, is present within the polling station or in the immediate vicinity of the polling station.

A presiding officer is entitled to reject as invalid a ballot paper for one reason or another. Where he or she does so, section 63(7) of the Electoral Act requires that he or she shall endorse the word “Rejected” on the ballot paper. He or she shall add to the endorsement the words “Rejection Objected To” if an objection to his or her decision is made by a candidate or his or her chief election agent or election agent. All ballot papers rejected as invalid shall be placed together in an envelope within the packet containing the rejected ballot papers.

If the presiding officer accepts as valid a ballot paper, he or she shall endorse the words “Acceptance Objected To” on the ballot paper if an objection to his or her decision is made by a candidate or his or her chief election agent or election agent. All such endorsed ballot papers shall be placed together in an envelope within the packet containing the accepted ballot papers.

All this is done during the counting exercise.

Section 64 of the Electoral Act [Chapter 2:13] clearly articulates the procedure after the counting of votes at a polling station. The section provides:

“(1) After the counting is completed the presiding officer shall, without delay, in the presence of such candidates and their election agents as are present -

(a) Close and seal the aperture in the ballot box; and

(b) Make up into separate packets sealed with his or her own seal and with the seals of those candidates and election agents, if any, who desire to affix their seals -

(i) The un-used and spoilt ballot papers and counterfoils of the unused ballot papers placed together;

(ii) The counterfoils of the used ballot papers, including the counterfoils of the spoilt ballot papers;

(iii) The register of assisted voters; and

(c) Record on the polling station return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each ballot box are shown on the return; and

(d) Display the completed polling-station return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto; and

(d1) Provide each candidate or his or her election agent with a copy of the completed polling station return; and

(e) Affix a copy of the polling-station return on the outside of the polling station so that it is visible to the public and shall ensure that it remains there so that all members of the public who wish to do so may inspect it and record its contents.

(2) Immediately after affixing a polling station return on the outside of the polling station in terms of subsection (1)(e), the presiding officer shall personally transmit to the Ward elections officer for the ward in which the polling station is situated -

(a) The ballot box and packets referred to in subsection (1)(a) and (b), accompanied by a statement made by the presiding officer showing the number of ballot papers entrusted to him or her and accounting for them under the heads of used ballot papers, excluding spoilt ballot papers, unused ballot papers and spoilt ballot papers; and

(b) The polling-station return certified by himself or herself to be correct:

Provided that if, by reason of death, injury or illness, the presiding officer is unable, personally, to transmit the ballot box, packets, statement and polling station return under this subsection, a polling officer who was on duty at the polling station shall personally transmit these, and, in that event, any statement or certification required to be made by the presiding officer for the purposes of this section may be made by the polling officer concerned.”

After receiving the polling station returns, the Ward elections officer is required to verify and collate the polling station returns at the Ward Centre and count the postal votes. Verification and collation of the returns is done upon giving reasonable notice in writing to each candidate or his or her chief election agent, each political party whose party-list candidates are contesting the election in the ward, and such observers as can readily be contacted, of the time that the process will be done. The ward elections officer displays each polling station return to those present and thereafter verifies each polling station return by ensuring that it is duly certified by the presiding officer of the polling station concerned. The ward elections officer may, upon request, allow any candidate, election agent or accredited observer to make notes of the contents of any polling station return.

Having recorded the results of the polling station returns, the ward elections officer, in the presence of such candidates, election agents and observers as are present, shall verify the postal ballots if they have not already been verified, count the postal votes and record, separately, on the ward return the number of such votes received by each candidate. He or she must enter on the ward return the total number of votes received by each candidate, including postal votes, and then close and seal the aperture in the postal ballot box.

The ward elections officer is then enjoined to provide a copy of the completed ward return to every candidate, election agent and observer who requests one. He or she must also ensure that a copy of the ward return is displayed prominently outside the Ward Centre so that all members of the public who wish to do so may inspect it and record its contents.

Immediately after causing a copy of the ward return to be displayed outside the ward centre, the ward elections officer must cause the return, certified by himself or herself to be correct, to be transmitted to the Constituency Centre for the constituency in which the ward is situated.

Any reference to a Constituency Centre or a Constituency elections officer shall be construed, in respect of the Presidential election, as reference to a Presidential Constituency Centre or a Presidential constituency elections officer.

In relation to the Presidential election, the number of votes received by each candidate, as shown in each polling station return, is added together and the resultant figure added to the number of postal votes received by each candidate. The constituency elections officer shall forthwith record on the constituency return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each polling station are shown on the return. He or she is required to display the completed constituency return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto. He or she must then transmit to the Chief Elections Officer, by hand, through a messenger, the constituency return or a copy thereof, certified by the constituency elections officer to be correct.

Immediately after arranging for the constituency return to be transmitted to the Chief Elections Officer, the constituency elections officer is required to affix a copy of the constituency return on the outside of the constituency centre so that it is visible to the public.

At the time and place notified for the verification of the constituency returns, and in the presence of such candidates, their chief election agents and such accredited observers as are present, the Chief Elections Officer shall display each constituency return to those present. He or she shall, upon request, allow a candidate or the chief election agent of a candidate to make notes of the contents of each constituency return.

When the Chief Elections Officer has completed the verification of the constituency returns, he or she shall, in the presence of the candidates or their chief election agents and such accredited observers as are present, add together the number of votes received by each candidate as shown in each constituency return.

After the number of votes received by each candidate, as shown in each constituency return, has been added together, the Chairperson of the Zimbabwe Electoral Commission or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson shall, where there are two or more candidates, forthwith declare the candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe with effect from the date of such declaration.

A declaration of a candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe shall be made not later than five days after the polling day or the last polling day, as the case may be, in the Presidential election concerned. Where a recount has been ordered in terms of section 67A of the Electoral Act, the declaration must be made not later than five days after completion of the re-count. The Electoral Court, on application by the Zimbabwe Electoral Commission, for good cause, shall extend the ten-day period.

A declaration of the candidate who received more than half the number of votes cast, where there are more than two candidates, to be duly elected as President of the Republic of Zimbabwe is final. The finality of the declaration is subject to reversal, on application to the Constitutional Court, by an order that such declaration be set aside or that the proceedings relating to the Presidential election are void.

Section 67A of the Electoral Act makes provision for the recounting of votes in one or more of the polling stations in a constituency. Any political party or candidate that contested the election in a ward or constituency may request the Zimbabwe Electoral Commission, in writing, to conduct a re-count of votes. The request must state specifically the number of votes believed to have been mis-counted. If possible, the request should show how the miscount may have occurred. It must state how the result of the election has been affected by the alleged miscount. The Commission is required to immediately notify all the other political parties and candidates that contested the election of the nature of the request and of the date and time on which it was received by the Commission.

If the Zimbabwe Electoral Commission considers that there are reasonable grounds for believing that the alleged miscount of votes occurred and that, if it did occur, it would have affected the result of the election, it shall order a recount of votes in the polling station or polling stations concerned.

It is important to note that the Zimbabwe Electoral Commission may, on its own initiative, order a recount of votes in any polling stations if it considers that there are reasonable grounds for believing that the votes were miscounted, and that, if they were, the mis-count would have affected the result of the election.

Where the Commission orders a recount of votes, it shall specify the polling station or polling stations whose votes are to be recounted, and, where appropriate, the votes that are to be recounted. The Zimbabwe Electoral Commission must also specify the date on which, and the place and time at which, the re-count is to take place. The procedure to be adopted for the recount must be specified.

The Zimbabwe Electoral Commission is required to take all necessary steps to inform accredited observers and all political parties and candidates that contested the election of its decision and of the date, time and place of the recount. Accredited observers and representatives of candidates and political parties that contested the election are entitled to be present at any re-count ordered by the Commission.

The Commission is required to ensure that any recount of votes is completed within five days after the announcement of the last result in the Presidential election and that the result of the re-count is announced within twenty-four hours of its completion. As indicated, under section 110(3)(4)(ii) of the Electoral Act, where a recount has been ordered in terms of section 67A of the Electoral Act, a declaration of a candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe shall be made not later than five days after the completion of the recount.

Section 70 of the Electoral Act provides for the custody of ballot papers and other papers.

Upon receiving such material, the constituency elections officer is not allowed to open any closed and sealed ballot box or sealed packets prepared by a presiding officer in terms of section 64(1)(a) and (b) of the Electoral Act. He or she is not allowed to open any sealed packet containing all the postal ballot papers cast in the election. The constituency elections officer may not open all un-opened ballot paper envelopes which have been endorsed “vote rejected”, and all unopened ballot paper envelopes which have been endorsed “vote rejected” but whose rejection has been objected to, while such ballot boxes and packets remain in his or her custody.

All the closed and sealed ballot boxes and packets referred to above must be transmitted to the places designated by the Chief Elections Officer by the constituency elections officer soon after he or she has received them into his or her custody. He or she shall also endorse on each packet a description of its contents and the date of the election to which it relates.

Where an election petition or application is not lodged in relation to the ward or constituency concerned, the Chief Elections Officer shall cause to be destroyed all the documents relating to the ward or constituency not earlier than the fourteenth day after the end of the election period. If an election petition is lodged in relation to any constituency within fourteen days after the end of the election period to which the election relates, he or she must retain, for six months, all the materials relating to that ward or constituency and then, unless otherwise directed by an order of the Electoral Court, shall cause them to be destroyed.

In terms of section 70(4) of the Electoral Act, all sealed ballot boxes and sealed packets cannot be opened except in terms of an order of the Electoral Court. The order may be granted when the Electoral Court is satisfied that the inspection or production of the contents of a sealed ballot box or a sealed packet is required for the purpose of a petition or application questioning an election or return.

Section 70(3)(a) of the Electoral Act ensures that the evidence which is sealed and safely kept in terms of the Electoral Act is available for the purposes of conducting a recount of the election votes forty-eight hours after the declaration of the election result in terms of section 67A(1) of the Electoral Act. Section 70(4) of the Electoral Act, however, requires that an application be made to the Electoral Court for an order to have the closed and sealed ballot boxes opened. The Electoral Court may also order that the separately sealed packets that contain the unused and spoilt ballot papers and counterfoils of the un-used ballot papers, the counterfoils of the used ballot papers, including the counterfoils of the spoilt ballot papers, and the register of assisted voters, be opened for purposes of a recount.

Common sense and caution required that before the applicant made the bald allegation that the Zimbabwe Electoral Commission had failed to have affixed completed polling station returns on the outsides of 21% of the total polling stations on the polling day, he should have fact-checked the allegation.

The mere making of the allegation would, under normal circumstances, mean that the maker has identified and counted the polling stations affected. The applicant did not indicate at which polling stations the V11 Forms were not affixed on the outside. He did not say whether he had election agents stationed at such polling stations. If the applicant had election agents at every polling station, as he should have had, he did not say why no affidavits were deposed to by such election agents attesting to the fact that no V11 Forms were affixed outside their polling stations.

The process of voting at a polling station involves a number of clearly defined procedures with which a presiding officer is bound to comply. Each procedure relates to specific duties, the contents of which are acts the presiding officer must perform. Section 64(1)(c) of the Electoral Act provides that, after the counting of the votes in accordance with the procedure prescribed in section 63(1) of the Electoral Act, the presiding officer shall start completing the V11 Form. He or she is required to record on the V11 Form the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the count for each ballot box is shown on the return.

Section 64(1)(d) of the Electoral Act requires the presiding officer to display the completed V11 Form to those present and afford each candidate or his or her election agent the opportunity to subscribe their signatures thereto. The presiding officer is required to provide each candidate or his or her election agent with a copy of the completed V11 Form. Section 64(1)(e) of the Electoral Act then requires the presiding officer to affix a copy of the V11 Form on the outside of the polling station so that it is visible to the public. He or she is required to ensure that the V11 Form remains there so that all members of the public who wish to do so may inspect it and record its contents.

A few minutes of reflection by the applicant on the nature, content and purpose of the duties imposed on the presiding officer by the procedures prescribed under sections 64(1)(c), (d) and (e) of the Electoral Act would have dissuaded him from making the rather outlandish allegations against the Zimbabwe Electoral Commission under oath….,.

The applicant had election agents at the un-identified polling stations he alleged did not have completed V11 Forms affixed on the outside. The election agents would have been given completed V11 Forms. The applicant did not present the completed V11 Forms given to his election agents. If he had done so, he would have been in a position to contend that the V11 Forms that the Zimbabwe Electoral Commission had were different from the ones he had in his possession. If the applicant did not have election agents at the unidentified polling stations, how was he able to conclude that a failure to affix V11 Forms on the outside of polling stations occurred in 21% of the polling stations set up by the Zimbabwe Electoral Commission in the harmonized elections? The claim is, with respect, outrageous.

The allegation by the applicant that his election agents were not present during the verification of the Presidential result is false.

An e-mail was sent by the Zimbabwe Electoral Commission to all Presidential chief election agents, including that of the applicant, inviting them to come and take part in the verification of the Presidential election result. The twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) averred, in the opposing affidavit, that she personally called, in a live ZBC broadcast, on all chief election agents for candidates in the Presidential election to come for the verification of the Presidential election result.

The acceptable evidence proved the fact that the applicant's election agents, Mr Morgan Komichi and Mr Jameson Timba, were present. Mr Komichi was the applicant's chief elections agent. Both men had full access to the room where verification of the result was conducted.

The twenty-fourth respondent (the Chairperson of the Zimbabwe Electoral Commission) stated that the two requested and were furnished with V11 and V23 Forms for them to check and verify any issues that they wished to verify during the verification process.

Over the two-day period of the verification of the Presidential election result, the applicant's election agents had unlimited access to all the original V11 and V23 Forms relating to the Presidential election. They had the opportunity, at their own discretion, to make notes from those V11 and V23 Forms. They had the opportunity to raise any queries with the Chief Elections Officer where they had problems with information that was on the V11 and V23 Forms being used by the Zimbabwe Electoral Commission when compared with what they had collected from their election agents from various polling stations.

It was not correct to say that the verification of the Presidential election result was done under a cloud of secrecy. The applicant's Chief Election Agent initially attended and observed the initial stages of the verification but later left and became unc-ooperative. He refused to sign the form showing the number of votes received by each candidate. He disrupted the proceedings in which the Presidential election result was declared.

In paragraph 5.1 of the founding affidavit, the applicant admitted that his Chief Elections Agent and Mr Timba were invited to attend and witness the verification of the constituency results. He admitted that the two men attended and took part in the verification process that went on for two days.

It is clear from the evidence that the attitude of the applicant's Chief Election Agent was that he would co-operate with the Chief Elections Officer only if the applicant won the Presidential election. The only reasonable inference to draw from the conduct of the applicant's Chief Election Agent is that his deplorable behaviour was premeditated.

By withdrawing from the process of the verification of the Presidential election result, when they realized that the applicant had lost the election, his election agents thought that the process would not continue to completion without their presence.

They were wrong.

The provisions of section 110 of the Electoral Act are such that the absence of any candidate or his or her chief election agent does not stop the prescribed process from proceeding to its conclusion. An illustration can be found in the provisions of section 110(3(d) and section 110(3)(e) of the Electoral Act. The subsections require the Chief Elections Officer to act in the presence of those election agents as are present.

Section 110 of the Electoral Act does not, therefore, mandate that a declaration in terms of section 110(3)(f) shall only be done where the candidates' election agents have signed off on the result of the Presidential election. The purpose is to ensure that the process outlined in section 110 of the Electoral Act is not susceptible to being taken hostage by any of the candidates contesting the Presidential election.

It was also misleading for the applicant to accuse the Zimbabwe Electoral Commission of deliberately delaying the announcement of the Presidential election result when he knew that in terms of section 110(3)(h)(i) of the Electoral Act the Commission had five days within which to declare the Presidential election result.

The voting ended on 30 July 2018. The Presidential election result was declared on 3 August 2018. The applicant must have known that the Zimbabwe Electoral Commission had acted lawfully…,.

There was nothing placed before the Court to support the allegation by the applicant that the counting of votes at polling stations stopped in response to what he alleged were the results from polling stations showing him as leading in the Presidential election. Election agents did not file affidavits stating that the counting was stopped. No observer reports recording the occurrence of the event alleged by the applicant were made.

The only reasonable inference is that the counting of votes at polling stations across the country proceeded as prescribed by the Electoral Act, without any stoppages as alleged by the applicant.

The applicant alleged that, at the close of voting at 19:00 hours on 30 July 2018, sample results in the form of completed V11 Forms were released. He said they were all over social media. According to the applicant, the results showed that he was well ahead of the first respondent in all the Provinces of the country. He said when it was realized that he was leading in the Presidential election, the polling station returns were not released until 31 July 2018. To buttress the allegation that the V11 Forms circulating in the social media showed him leading in the Presidential election, the applicant attached to the founding affidavit only five V11 Forms.

There was a total of 10,985 polling stations in operation during the 2018 harmonised elections. There are ten Provinces in Zimbabwe. That meant that at least five Provinces were not represented on the V11 Forms produced by the applicant. Five V11 Forms out of 10,985 polling stations was by no means representative of the pattern that the applicant alleged.

The samples of the V11 Forms produced by the applicant were meant to buttress the hypothetical postulation that he won the Presidential election. Where the actual data on the Presidential election was available and accessible, the hypothetical postulation was unnecessary.

The fact that the V11 Forms were sourced from social media raised doubt about their authenticity. Polling stations returns are obtainable in terms of the provisions of section 64(1)(d1) of the Electoral Act [Chapter 2:13].

The applicant ought to have produced authentic completed V11 Forms collected from his political party's election agents and compared what they established to the Presidential election result with the figures announced by the Zimbabwe Electoral Commission. He did not do so….,.

The applicant claimed that there were 200,000 votes created in Mashonaland Central Province. He said less than 200,000 people voted in the Province, yet the Zimbabwe Electoral Commission announced votes in excess of 400,000. He said he based the conclusion that less than 200,000 people voted in Mashonaland Central Province on information emanating from a ZBC reporter, who said the Zimbabwe Electoral Commission had announced that at 17:30 hours 105,000 people had cast their votes.

The applicant did not state where he got the figure of 200,000 as the number of people who voted in Mashonaland Central Province. The Zimbabwe Electoral Commission proved that the Province has a total voter population of 531,984. With a voter turnout of 85.1% in the Presidential election, the number of votes cast in the Province would exceed 400,000.

The question whether more than 400,000 voters cast their votes in Mashonaland Central Province in the Presidential election could easily have been answered by consideration of the election residue. Without access to the evidence of the election residue, the applicant's allegations remained bald and un-substantiated allegations….,.

The allegation by the applicant that there were more votes announced for some polling stations than the voters registered for the polling station was unsubstantiated.

Every V11 Form has a ballot paper account. Immediately before the unsealing of the ballot boxes and commencement of counting, the presiding officer, at every polling station, accounts for the ballot papers received at the beginning of the poll.

The applicant did not put before the Court V11 Forms that showed higher numbers of counted ballots to those issued at the polling station. He did not place before the Court any affidavits from his election agents stating whether at certain polling stations the count yielded a higher number of cast ballots than those issued.

The Zimbabwe Electoral Commission proved that there were no polling stations where more people voted than appeared on the voters' roll for the polling station.

The allegation on over-voting was based on what the applicant described as G-series documents. The falsity of the nature of the information in the applicant's G-series was easy to expose.

The applicant's G-series alleged that a polling station at Mandara Primary School in Bikita West Constituency had 809 people who voted in the Presidential election out of a total registered voter population of 447. Contrary to the applicant's assertions, the V11 Forms in respect of Mandara Primary School polling station recorded that 371 people voted in the Presidential election.

The applicant's G-series alleged that at a polling station at Bikita Minerals Primary School in Bikita West Constituency 831 people voted in the Presidential election when the voter population was 341. Contrary to the applicant's assertions, the V11 Form for Bikita Minerals Primary School polling station recorded that 309 people voted in the Presidential election.

The applicant's G-series alleged that at a polling station at Nharira Primary School in Gutu North Constituency 536 people voted in the Presidential election out of a voter population of 271. Contrary to the applicant's assertions, the V11 Forms for Nharira Primary School polling station recorded that 236 people voted in the Presidential election.

The trend was the same in respect of polling stations in the G-series, which was produced as proof of the allegations of over voting. The conclusion by the Court was that the information contained in the documents produced as G-series was false….,.

The allegation by the applicant to the effect that identical figures of results in respect of polling stations can only be explained in terms of manipulation of votes proves nothing.

The actual returns from the polling stations concerned were available and accessible. They would have shown that identical results of votes cast at different polling stations were a real occurrence. In other words, there were polling stations that returned identical results.

To show that identical results do not have to be a result of manipulation, the Zimbabwe Electoral Commission produced copies of two V11 Forms, one for Mapengula Tent polling station in Tsholotsho North and one for Mashala Top Butiti Pre-school polling station in Hwange East. Each V11 Form for the respective polling station was signed by election agents for the Presidential election candidates.

The V11 Forms showed that at each polling station the applicant received 86 votes against the first respondent who received 52 votes. If the applicant's allegation of identical results being products of manipulation, the Zimbabwe Electoral Commission would have manipulated the results of the Presidential election at the two polling stations in his favour….,.

On 3 August 2018 the Zimbabwe Electoral Commission announced that the first respondent had received more than half of the votes cast in the Presidential election. The first respondent was declared to be duly elected as President of the Republic of Zimbabwe in terms of section 110(3)(f)(ii) of the Electoral Act [Chapter 2:13].

The declaration can only be changed or altered by the Court in terms of section 110(3)(i) of the Electoral Act, which reads:

“(i) A declaration by the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) under paragraph (h) shall be final, subject to reversal on petition to the Electoral Court that such declaration be set aside or to the proceedings relating to that election being declared void;…,.”

The declaration itself is final subject to the requirements of reversal.

The Zimbabwe Electoral Commission made the admission that the figures initially announced had mathematical errors. Minor adjustments were made after data capturing errors were corrected. It was submitted that this affected the figures relating to the first respondent's win by 0.1% but did not affect the result of the Presidential election.

The applicant alleged that there were discrepancies between the Presidential election result, as announced by the Zimbabwe Electoral Commission, and that arrived at by adding figures on the V11 and V23 Forms.

The calculations by the applicant were wrong. They were based on an incorrect figure of voter turnout. The total voter population for the purposes of the 2018 harmonised elections was 5,695,936. It was not 5,659,583 as indicated by the applicant.

The previously announced number on the polling day had been 5,695,706. The figure was adjusted by the addition of 230 voters who had been registered during a BVR registration exercise in Chegutu, Mashonaland West Province, prior to the cut-off date for the registration of voters for the 2018 harmonized elections. The number of 230 voters had not been uploaded into the database.

The final voter turnout in the Presidential election was 85.1%. When applied to the total voter population, it equated to 4,847,233. The results of the Presidential election announced by the Zimbabwe Electoral Commission totalled 4,847,996. There was a variance of 763 votes from the actual 85.1%. The variance was accounted for by mathematical errors in the data capturing exercise.

The computation by the applicant was based on a voter turnout of 72%. This did not yield a correct result, reflective of what happened on the polling day. As a result of the use of 72% as the final voter turnout in the Presidential election, instead of the correct 85.1%, the applicant arrived at the figure of 700,000 votes that he alleged were unaccounted for.

Using 72% of the total voter population to calculate the voter turnout, the applicant arrived at the figure of 4,032,000. By necessary implication, the figure would include votes that would, during the counting process, be deemed to be invalid for one reason or another. The applicant then gave the figure of 4,775,640 as votes announced by the Zimbabwe Electoral Commission.

The figures of 4,032,000, on the one hand, and 4,775,640, on the other, represented two different things. The former figure included all votes, whether valid or invalid. The latter figure would have represented valid votes only. The applicant proceeded to subtract, in turn, the elements of the latter category of votes from the former category of votes. As a result of the use of 72% as the final voter turnout in the Presidential election instead of the correct voter turnout of 85.1%, the applicant fell into error and made wrong conclusions on figures that he brought to Court as the basis of his argument. The error by the applicant in the computation of the total voter turnout, amongst other errors, would have caused him to come up with the variance of the figure of 700,000. He did not take into account in the computation the difference between the two sets of votes he had subtracted from each other.

The applicant's computation did not establish the 700,000 allegedly un-accounted for votes.

In terms of the applicant's G-series documents, he identified a variation in the result of the Presidential election of 0.1%. That gave him 44.4% of the total votes cast. The first respondent received 50.7%. The variation did not affect the outcome of the Presidential election. The first respondent still passed the statutory threshold of 50% plus one vote.

Any mathematical error that may have occurred in the process of verification of the Presidential election result, in terms of section 110 of the Electoral Act, was not gross or sufficient to overturn the outcome of the election. It cannot be a ground for the vacation of the declaration made in terms of section 110(3)(f)(ii) of the Electoral Act.

It is important to understand what the result of the Presidential election is within the meaning of section 93(1) of the Constitution and section 110(3)(f)(ii) of the Electoral Act. The result of the Presidential election is the declaration of a winner having received more than half of the votes cast in the election. The winner only has to receive 50% plus one vote of the number of votes cast in the Presidential election. Any votes after that point have no bearing on the question whether or not one must be declared the winner of the Presidential election.

The correction of the mathematical errors in the number of the votes announced as having been received by the first respondent by the Zimbabwe Electoral Commission had no effect at all on the result of the Presidential election and the declaration of the first respondent to be duly elected as President of the Republic of Zimbabwe.

An error in counting and amendment of figures is envisaged by the Electoral Act itself, which makes the provisions of section 110 subject to those of section 67A. Section 67A(4) of the Electoral Act provides that the Zimbabwe Electoral Commission may, on its own initiative, order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the alleged miscount of votes occurred and that, if it did occur, it would have affected the result of the Presidential election. The law allows for the adjustment, where it is found necessary to do so.

If the applicant was aggrieved by the verification, he should have utilised the remedies availed to him by statute to get the relevant evidence. The applicant needed more evidence than just the mere admission by the Zimbabwe Electoral Commission of the mathematical inaccuracy of the figures to show that the result was affected.….,.

The applicant did not so much rely on the allegation that the Presidential election was not free, fair and credible on the basis of the generalised and unproved allegations he made against the Zimbabwe Electoral Commission. The essence of the case was that the applicant was the winner of the Presidential election - that is the allegation he failed to prove.

It is an internationally accepted principle of election disputes that an election is not set aside merely on the basis that an irregularity occurred. There is a presumption of validity of an election. This is so because as long as the election was conducted substantially in terms of the Constitution and all laws governing the conduct of the elections it would have reflected the will of the people. An election can only be set aside if it is proved, on a balance of probabilities, that the irregularities shown by clear and credible evidence to have been committed by officers of the body charged with the duty to conduct the election in accordance with the law of elections affected the result.

It is not for a court to decide elections; it is the people who do so. It is the duty of the courts to strive, in the public interest, to sustain that which the people have expressed as their will.