Voting Systems

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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, ...

"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

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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....,.

SANDURA JA: I have read the judgment prepared by CHIDYAUSIKU CJ, but respectfully disagree with it.

The judgment is based on the principle that a peremptory enactment must be obeyed or fulfilled exactly, and that in respect of a directory enactment substantial compliance therewith will suffice.

That principle was disapproved of and abandoned by this Court, about twenty-two years ago, in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC).

At 301B-302B GUBBAY JA …, with the concurrence of McNALLY JA and MANYARARA JA, said the following:

"The categorisation of an enactment as 'peremptory' or 'directory', with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice, no longer finds favour.

As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380 the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by MILNE J in J.E.M. Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine – 328B.

This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A), where, after concluding that the provision with which he was concerned was imperative, VAN WINSEN AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:

'The enquiry, I suggest, is not so much whether there has been "exact", "adequate" or "substantial" compliance with this injunction, but, rather, whether there has been compliance therewith.

This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be. It is quite conceivable that a Court might hold that, even though the position as it is, is not identical with what it ought to be, the injunction has nevertheless been complied with.

In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'…,.

See also Shalala v Klerksdorp Town Council & Anor 1969 (1) SA 582 (T) at 587H-588B; Nkisimane & Ors v Santam Insurance Co. Ltd 1978 (2) SA 430 (A) at 433H-434E; and, more recently, Ex p Dow 1987 (3) SA 829 (D) at 831B-D.

Judges in this country also have not been slow to move away from the traditionally strict approach. See Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975 (2) RLR 226 (GD) at 228C-229C, 1976 (1) SA 827 at 828; Macara v Minister of Information, Immigration and Tourism & Anor 1977 (1) RLR 67 (GD) at 70H; Ex p Ndlovu 1981 ZLR 216 (GD) at 217F-G.

Testing the matter then in the manner approved by these authorities, one is constrained to discover the object of section 3(1) of the Regulations to determine whether that object is fundamental to the policy of the enactment, and, if it is, to decide whether it is defeated or frustrated by the non-compliance complained of. The degree of observance and non-compliance is another relevant consideration."

In that case, GUBBAY JA was considering whether section 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 ("the Regulations") (now repealed) had been complied with.

The facts in that case are set out in the headnote, which, in relevant part, reads as follows:

"In July 1987, the appellant, the respondent's employer, suspended the respondent from her employment without pay, pending the outcome of the appellant's request to the Ministry of Labour for her dismissal on the grounds of having stolen a confidential document from the company. The relevant section of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations required that (the) application be made to a labour relations officer, but, the appellant applied to an acting regional hearing officer in the Ministry…..,."

Having found that the object of the requirement of section 3(1) of the Regulations (i.e. that upon suspension of an employee without pay and other benefits the employer was to apply forthwith to a labour relations officer for an order or determination terminating the contract of employment) was predominantly the protection of the interests of the employee, that that object was not frustrated or materially impaired by the employer proceeding in the manner it did, and that the degree of non-compliance was by no means great, the Court held that section 3(1) of the Regulations had been complied with.

In my view, the principles set out in the above authorities are the principles which should be applied in the present case in order to determine whether Standing Order No. 6 ("the Standing Order") was complied with in the election of the Speaker.

In this regard, the following questions arise for consideration –

1. What is the object sought to be achieved by the Standing Order?; and

2. Was that object achieved in the election of the Speaker?

I shall deal with the questions in turn.

What is the object sought to be achieved by the Standing Order?

The Standing Order reads as follows:

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

In my view, the object sought to be achieved by this Standing Order is the same as the object sought to be achieved by the secret ballot system all over the world. It is to protect the voter, mainly against intimidation and victimisation, by enabling him or her to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she has voted.

The secret ballot system, in this country, has its origin in the Ballot Act 1872, which introduced a secret system of voting in Parliamentary and Municipal elections in Great Britain. Before the Ballot Act was enacted, in 1872, Britain had an open system of voting in Parliamentary and Municipal elections.

In Parliamentary elections, the voter would go onto a platform at the polling station and announce his choice of candidate to an officer, who then recorded it in what was called a Poll Book. Intimidation and victimization were rife. Employees were required, by their employers, to vote for particular candidates or lose their employment. The same applied to tenants. If they did not vote as the landlord wanted them to vote, they were evicted from the premises they occupied. In the circumstances, there was a growing demand for the protection of the voter against intimidation and victimisation by enabling him to vote freely and in secret. As a result, the Ballot Act 1872, which introduced a secret system of voting, was enacted in order to meet that demand.

The Act required that Parliamentary and Municipal elections be by secret ballot. Subsequently, when this country became a colony of Great Britain the secret ballot system was introduced in the country.

In my view, the object sought to be achieved by the secret ballot system in Great Britain is the same as the object sought to be achieved by the Standing Order. That object is fundamental to the policy of the Standing Order.

Was the object sought to be achieved by the Standing Order achieved in the election of the Speaker?

In my view, there can be no doubt whatsoever that the answer to that question is in the affirmative.

All the two hundred and eight Members of Parliament ("MPs") present marked their ballot papers in the secrecy of the polling booths. Each MP was protected against intimidation and victimization, and was enabled to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she had voted.

Some MPs emerged from the polling booths with their ballot papers folded, whilst others emerged from the polling booths not having folded their ballot papers. However, there was no evidence suggesting that any MP who had wanted to keep his or her ballot paper folded at all times outside the polling booth had been prevented from doing so. In addition, no MP ever complained to the Clerk of Parliament that he or she had been compelled to display his or her marked ballot paper to any other person.

However, assuming that it is correct that the six MPs who displayed their marked ballot papers did not comply with the Standing Order, the object sought to be achieved by the Standing Order was, nevertheless, not defeated or frustrated by the non-compliance complained of.

Of the two hundred and eight MPs who voted, only six (i.e. about 2.9 percent of the total) displayed their marked ballot papers before depositing them in the ballot boxes, whilst two hundred and two (i.e. about 97.1 percent of the total) voted in accordance with the provisions of the Standing Order.

Quite clearly, the degree of non-compliance was insignificant, whereas the degree of compliance was nearly one hundred percent.

In the circumstances, as the object sought to be achieved by the Standing Order was achieved and not defeated or frustrated by the non-compliance complained of, and, as the degree of the alleged non-compliance was insignificant, it follows that the Standing Order was complied with in the election of the Speaker.

Finally, I would like to comment on section 177 of the Electoral Act [Chapter 2:13] ("section 177 of the Act"). It reads as follows:

"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 has its origin in the Ballot Act 1872 ("the Ballot Act"), which introduced the secret ballot system in Britain. Section 13 of the Ballot Act provided as follows:

"No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election."

Subsequently, section 13 of the Ballot Act was reproduced, in almost identical language, by the Legislature of the Colony of Southern Rhodesia, in the Electoral Act 1928. Section 60 of that Act read as follows:

"No election shall be set aside by the court by reason of any mistake or non-compliance with the provisions of this Chapter, if it appears to the court that the election was conducted in accordance with the principles laid down in this Chapter, and that such mistake or non-compliance did not affect the result of the election."

Thereafter, section 60 of the Electoral Act 1928, was reproduced, in almost identical terms, in every Electoral Act enacted in this country, as can be seen from the following provisions –

1. Section 85 of the Electoral Act 1938;
2. Section 85 of the Electoral Act [Chapter 2];
3. Section 88 of the Electoral Act 1951;
4. Section 182 of the Electoral Act 1969;
5. Section 156 of the Electoral Act 1979;
6. Section 38 of the Electoral Amendment Act 1987;
7. Section 142 of the Electoral Act 1990;
8. Section 149 of the Electoral Act [Chapter 2:01]; and
9. Section 177 of the Electoral Act [Chapter 2:13].

Thus, the principle that an election will not be set aside by the court for non-compliance with the provisions of the electoral law if the election was conducted in accordance with the principles of the electoral law, and the non-compliance did not affect the result of the election, is well-established and has been part of the electoral law of this country for at least eighty-two years.

It is based on common sense, for there would be no good reason for setting aside an election on the basis of an irregularity which did not affect the result of the election.

However, as I have already determined that the election of the Speaker was conducted in accordance with the principles of the Standing Order, and, as it was common cause that the non-compliance complained of did not affect the result of the election, the only remaining issue for me to determine is whether the principle that the court would not set aside an election on the basis of an irregularity which did not affect the result of the election, applies to the election of the Speaker.

I have no doubt in my mind that it does. In fact, there is no logical reason whatsoever why it should not apply.

In my view, the fact that the Standing Order does not state the principle is of no significance. The principle is based on common sense, and common sense dictates that if an irregularity does not affect the result of the election, it cannot form a basis for the nullification of the election.

In addition, when the Standing Order was drafted, Parliament must have been aware that the principle had been part of the electoral law of this country for a very long time, and must have felt that there was no need to include in the Standing Order an obvious principle based on common sense. In any event, one would not expect the sort of details which usually appear in a statute to be set out in a Standing Order.

Finally, I would like to comment on the following statement in the majority judgment:

"It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance."

In my view, the description of the election as "shambolic and chaotic" is not borne out by the finding made by the learned Judge in the court a quo, which was as follows:

"As regards the conduct of the election in casu, generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent. In this situation, the approach to be adopted was explained by GUBBAY JA (as he then was) in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) at 339, as follows:

'It is, I think, well established that in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.'

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic. On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided.

Taking into account the usual volatility associated with the conduct of Parliamentary business generally, I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion."…,.

In any event, as the appellants elected to proceed by way of motion proceedings in the court a quo, any disputes of fact between the parties had to be resolved in favour of the respondents: see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

In this regard, it is pertinent to note that the allegation that the election was chaotic was denied by the respondents.

Accordingly, I would dismiss the appeal with costs.

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

Sections 54 to 70 of the Electoral Act [Chapter 2:13] contain measures that give effect to the principles that govern the conduct of elections in Zimbabwe. In terms of section 155 of the Constitution, elections must be peaceful, free and fair. They must be conducted by secret ballot and based on universal adult suffrage and ...

Transparency of the election process lies at the heart of its credibility. Section 54 of the Electoral Act requires that a presiding officer must ensure, not more than thirty minutes before the commencement of the poll at any polling station, on the day of the vote, that the ballot box is empty.

The check must be carried out in full view of other election officers present for the performance of their official duties, the candidates, the election agents and accredited observers. The ballot box itself is required to be translucent, a measure that is aimed at ensuring transparency in the voting process. The presiding officer is, nonetheless, required to show the interior of the ballot box to the persons present before sealing it, leaving open the aperture for the purpose of dropping the marked and folded ballot papers into the ballot box.

The voting process starts with a prospective voter entering a polling station and approaching the presiding officer to apply for the ballot paper. Section 56(2) of the Electoral Act gives the presiding officer a discretionary power to put to an applicant for a ballot paper such questions as he or she considers necessary to ascertain whether or not the applicant is registered as a voter on the voters roll for the ward in which the polling station is situated.

The presiding officer is obliged to require an applicant for a ballot paper to produce his or her voter's registration certificate or proof of identity. If the applicant is registered as a voter on the voters roll for the ward, and there is no indication that he or she has previously received a ballot paper or postal ballot paper for the election, the presiding officer is required to mark or otherwise deal with the certificate or proof of identify in a manner prescribed by the Chief Elections Officer.

After that, the presiding officer must hand the applicant a ballot paper for the Presidential Election, the Parliamentary Election and the Local Authority Election.

Before handing an applicant a ballot paper, a presiding officer is obliged to require the applicant to submit to an examination specified by the Chief Elections Officer to ascertain whether or not he or she has previously received a ballot paper at that election. If the applicant refuses to submit to such examination or if such examination shows that the applicant has previously received such a ballot paper, the presiding officer shall not hand him or her the ballot paper.

After handing an applicant a ballot paper, the presiding officer is required to mark him or her in the manner specified by the Zimbabwe Electoral Commission. The applicant would usually be required to dip his or her index finger in indelible ink. Before the ballot paper is handed to the applicant, the presiding officer is required to mark the ballot paper with the official mark.

The interaction between the applicant for a ballot paper and the presiding officer, from the time he or she enters the polling station, is under the observation of the candidate if he or she is present, the election agent, accredited observers, police officers and other electoral officers present for the performance of their official duties in the polling station.

When the person claiming the vote has received the ballot paper, he or she is required to take the ballot paper to the compartment provided for the purpose (“the booth”). The booth is designed to ensure that the voter can vote in secret. Once alone in the booth, the voter is free to signify the candidate for whom he or she votes by secretly placing a cross in the rectangle opposite the name of the candidate on the ballot paper. After voting, the voter is required to fold the ballot paper so that the official mark is visible but the names of the candidates and the cross made by him or her are not visible. He or she is required to drop the ballot paper in the translucent box placed in front of the presiding officer.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.

They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.

The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.

The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.

The relief sought is by way of a declaratory order in the terms that:-

1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.

3. The first respondent pays costs of suit.

The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.

The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

There are two distinct challenges to the passing of the Constitutional Bill.

The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.

In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.

In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.

The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.

The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.

The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.

The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.

The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.

The reasons for the decision now follow.

The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.

The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.

Before the proposed amendment, section 180 of the Constitution read as follows:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”

Section 180 of the Constitution would read as follows after the proposed amendment:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.

(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -

(a) Advertise the position; and

(b) Invite the President and the public to make nominations; and

(c) Conduct public interviews of prospective candidates; and

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.

(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(6) The President must cause notice of every appointment under this section to be published in the Gazette.

(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”

FACTUAL BACKGROUND

The main contention by the applicants was that there was no proper vote in Parliament.

The allegations of fact on which the applicants' cause of action was based had no support from the evidence produced.

That was the case in respect of what they alleged happened in the National Assembly.

NATIONAL ASSEMBLY

The applicants made the following allegations of fact.

There were 234 Members of the National Assembly present in the House on 25 July 2017 out of a total number of 270. This appears from the Order Paper. There was a debate on the Mid-Term Budget Review and the Economic Outlook Statement presented by the Minister of Finance on 20 July 2017.

The fourth respondent (Emmerson Mnangagwa) moved a motion to adjourn the debate in favour of the presentation of the Constitutional Bill.

There was argument between the second respondent (the Speaker of the National Assembly) and Members of the opposition. Eventually, the second respondent agreed with the fourth respondent. He ruled that the House was to proceed with the third reading of the Constitutional Bill.

The first applicant (Innocent Gonese) moved a motion in terms of Standing Order 152(3) that the Constitutional Bill be sent back to the Committee stage to ensure that it incorporated matters that had not been included in the text.

The motion was disallowed by the second respondent.

Bells rang so that voting could commence. According to the applicants, the House was not properly divided at this stage.

A point of privilege was raised to the effect that there had to be a secret vote.

The raising of the point, that the voting be by secret ballot, was based on the suspicion that some Members of the ruling party had been intimidated to vote for the Constitutional Bill. The contention was that a secret ballot was necessary in the circumstances.

The second respondent ruled that the vote was not going to be by secret ballot.

While the point of privilege was being considered, the tellers were counting Members. The Members who were sitting on the Government benches were counted as part of the “Aye” vote. Those who sat on the opposition benches were counted as being part of the “Noe” vote.

The tellers told the second respondent that the “Aye” votes were 187.

The first applicant raised an objection and pointed out that the second respondent had the obligation to ascertain whether there were more than 180 Members in the House. He argued that the second respondent was obliged, by Standing Order 127, to separate Members who voted in favour of the Constitutional Bill from those who voted against it.

The applicants aver that the process was not in accordance with Standing Order 127. They relied on the un-revised Hansard and the Order Paper to advance their argument.

According to the unrevised Hansard, there was commotion in the House following the communication to the second respondent by the tellers that 187 Members had voted in favour of the Constitutional Bill.

Some Members left the House.

The second respondent acceded to the request that the counted numbers should be verified.

The Sergeant-at-Arms was ordered, by the second respondent, to conduct a recount.

After the recount, the un-revised Hansard records that the second respondent said:

“After the verifications, the figure given of the results of the count is: Ayes – 182 and the Honourable Members who left are Honourable Matuke, Honourable Chinomona, Honourable Ruvai, Honourable Nyamupinga and Honourable Muchenje. Those against – 41. The number of affirmative votes recorded is not less than two-thirds of the membership of the House.

I, therefore, declare the final votes in the House on the Constitutional Amendment Bill to have been in accordance with the provisions of section 328(5) of the Constitution.”

According to the applicants, the irregularities in the vote were as follows -

1. When the bells were rung, the doors of the Chamber were closed. Before the vote was concluded, and before the verification was conducted, an Honourable Member walked in.

2. The second respondent breached the Standing Orders by opening the doors before the process of the vote was completed.

3. No vote took place and the verification process became the vote. The counting of the votes was based on an assumption that those on the Government benches supported the motion. This is not permitted by the Standing Orders and the Constitution.

4. The second respondent failed to properly divide the House, as is required by the Rules.

5. The second respondent did not allow the Chief Whips and the Sergeant-at-Arms, together with the tellers, to move around to make the necessary verifications after the vote.

6. Honourable Pedzisayi was counted twice for the “Aye” votes according to the Order Paper.

The applicants averred that the names of those alleged to have voted with the “Ayes” appear in both the un-revised Hansard and the Order Paper. According to both sources, there were 182 “Aye” votes. Those who voted with the “Ayes” included the names of Honourable Beremauro G, Honourable Mukanduri and Honourable B Tshuma. These Members were not in Zimbabwe on 25 July 2017. They were in Uganda on a Parliamentary visit.

The allegation was also that Honourable D Marapira and Honourable G Mabuwa, who were recorded as part of the Members who voted in favour of the Constitutional Bill, were absent on official leave.

The applicants said that Honourable M Chikukwa, Honourable M Hlongwani, Honourable P Dutiro, Honourable Y Simbanegavi and Honourable D Ndlovu were not present. They were, nonetheless, recorded as being part of the “Aye” vote.

According to the applicants' calculation, there were 171 “Aye” votes against a required threshold of 180 votes in favour of the proposed amendment to the Constitution.

There was a contradiction in the averments.

The applicants alleged that voting did not take place in the National Assembly. They also said that the vote was conducted in an irregular manner. They averred that the required minimum threshold of 180 votes in favour of the Constitutional Bill was not reached in the National Assembly....,.

On the merits, the first and the third respondents averred that the procedural requirement that there must be an affirmative two-thirds vote for a valid Constitutional amendment was complied with.

The second respondent averred that he acted in accordance with Standing Order 127 in the conduct of the vote.

The bells were rung, and all Members present moved into the Chamber. He then appointed tellers and divided the House, by directing that the “Ayes” should go to the right and the “Noes” should go to the left. An objection was raised when the House had already been divided. The unrevised Hansard relied on by the applicants did not capture everything that transpired. The revised Hansard and the audio recording show that voting was conducted properly. There were 182 “Aye” votes as recorded in the corrected Hansard, unlike the numbers relied on by the applicants which are based on the unrevised Hansard.

The first and the second respondents relied on the Journal of the House (“the Journal”) and alleged that it was the correct record of the proceedings of the House. They alleged that the un-revised Hansard, relied upon by the applicants, was subsequently corrected after reconciliation with the audio recording.

Their position was that, contrary to the allegations made by the applicants, the audio recording captured both the division of the House and the conducting of the vote.

The first and the second respondents contended that the applicants' case was based on the report in the unrevised version of the Hansard. The names of those Members who voted were corrected in the Journal in terms of Standing Order 131. They explained that, in terms of the procedure of the Journals Office and the Hansard Operational Manual, the corrected version of the Hansard and the corrected Votes and Proceedings were filed in the Journal of the House, which is bound at the end of each Session.

The Master Copy of the Hansard was prepared by the Hansard Reporters after they had gone through the un-revised version of the Hansard while listening to the audio recording.

The Order Paper relied on by the applicants contained errors, which were corrected using this method.

The second respondent conceded that, according to the corrected records, Honourable Mukanduri, Honourable Beremauro and Honourable Tshuma were out of the country. However, he maintained his position that Honourable Marapira and Honourable Mabuwa were present during the proceedings in the House relating to the voting on the Constitutional Bill. Their inclusion on the list of Members absent with leave was an error which was corrected.

The second respondent maintained that, whilst the Hansard is the official report of the proceedings in Parliament, it does not necessarily constitute an accurate record of what transpired on the day in question. The accurate record is contained in the Journal, which is bound at the end of each Session after it has been proof-read and corrected if necessary. The Journal is a security item and is kept by the Clerk of Parliament.

The second respondent stated in the opposing affidavit, in part, as follows:

“I conducted the vote in terms of Standing Order 127. The un-revised Hansard relied upon by the applicants did not capture that part. The audio record recording at minute 01:58:16-20 (which audio will be played at the hearing if required) and the corrected Hansard (vide 'CC' hereto) clearly show that the voting was done properly…,.

It is also important for this Court to note that, unlike the unrevised Hansard, the Journal (vide Annexure 'BB' hereto) is the correct record of proceedings. See also the alterations of the Master Copy of the Hansard (vide Annexure 'CC') before submitting it to the printers to produce Annexure 'DD' hereto which forms part of the Journal….,.

These allegations are denied.

The audio recording clearly shows what transpired…,. The applicant relied on the 'Unofficial Report Un-revised' Hansard as shown on its cover and the 'Advance copy - Uncorrected Votes and Proceedings' which the applicant is referring to as the 'Order Paper', which may, at times, contain errors, as in this case, and such errors in the names of the division list were corrected in the Journal of the House in terms of Standing Order 131 of the Standing Rules and Orders of the National Assembly.”

The second respondent took the argument further.

He averred that the unrevised Hansard left out four Members, Honourable Muchinguri, Honourable Mukupe, Honourable Madzinga and Honourable D Mpofu, who were present and voted with the “Ayes”. This was confirmed by the Attendance Register and the corrected copy of Votes and Proceedings.

According to this record, the “Aye” votes remained at 182.

It was also the second respondent's contention that the Attendance Register and the corrected copy of the Votes and Proceedings showed those Members who were present and voted for the proposed amendment of the Constitution. According to these records, Honourable Chikukwa, Honourable Hlongwani and Honourable Dutiro were present and voted “Aye”.

In terms of the Attendance Register compiled by the Sergeant-at-Arms, Honourable Simbabegavi was marked absent but she came late and participated in the voting and voted with the “Ayes”.

The second respondent alleged that the Sergeant-at-Arms failed to correct the error.

As for Honourable D Ndlovu, the second respondent said there was an error. The intended entry was Honourable A Ndlovu.

In regard to the issue that Honourable Pedzisayi was counted twice, he admitted that there was an error, which was corrected in terms of Standing Order 131.

The second respondent maintained that the Journal confirmed that 182 Members voted in favour of the Constitutional Bill. He contended that the Constitutional Bill was passed in accordance with the procedure prescribed by section 328(5) of the Constitution.

Finally, the first and the second respondents averred that, at the verification of the votes, the five Members who had voted, but subsequently left the House, were not included in the 182 “Ayes”. They had initially been counted as part of the 187, but were excluded following the verification exercise because they had left before the verification was conducted.

The applicants alleged, in their answering affidavits, that the documents relied on by the first, the second and the third respondents were fabricated, doctored, and tampered with.

The applicants relied on the unrevised Hansard and the Order Paper. They rejected the corrections made to the documents.

The first applicant averred, in the answering affidavit, as follows:

“I also wish to state that the recordings of Parliament, on the 25th of July 2017, must have been recorded and captured on video.

Surely, this Honourable Court has powers, which I do not have, of summoning both the video recording of what happened in Parliament which I notice the respondents do not refer to in their papers.”...,.

The interpretation and application of the provisions of section 328 of the Constitution, in the context of the effect of the principles on the amendment of the Constitution, disclose the invalidity of the passing of the Constitutional Bill in the Senate.

The process confirms the constitutionality of the conduct of the National Assembly....,.

Section 328 of the Constitution provides, in part:

“328 Amendment of Constitution

(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;…,.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly, in terms of section 131, unless the Speaker has given at least ninety days' notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted, without delay, to the President, who must assent to and sign it forthwith.”...,.

The amendment of different Constitutional provisions is not done by the same process.

An amendment of a provision other than Chapter 4, Chapter 16 and section 328 of the Constitution requires affirmative votes to be not less than two-thirds of the membership of each House of Parliament.

An amendment of a provision under Chapter 4, Chapter 16 and section 328 requires a referendum in addition to the special majority referred to in section 328(5) of the Constitution.

The Constitution thus follows the tradition whereby certain subjects are too important to be amended by a special majority in Parliament. This means that the issue of constitutional amendment is not an ordinary provision. It is one which enjoys special protection by the Constitution itself.

When interpreting section 328(5) of the Constitution, this underlying principle ought to be borne in mind.

INTERPRETATION OF SECTION 328(5) OF THE CONSTITUTION

The question for determination is whether section 328(5) of the Constitution requires that the amount of the votes in support of the Constitutional Bill must not be less than two-thirds of the total number of persons the Constitution declares that the House consists of. Does the subsection mean that the votes must not be less than two-thirds of the Members of the House who are alive and capable of voting at the time the voting is conducted?

The two Houses of Parliament interpreted the phrase “the membership of each House”, as used in section 328(5) of the Constitution, differently.

The National Assembly interpreted the words to mean the total number of persons the Constitution has declared the House to consist of as its Members. The Senate interpreted the phrase to mean the number of Members of the House who are alive and capable of voting at the time the vote on the proposed amendment to the Constitution is taken at the third reading.

The interpretation must take into account the language used, the context, the subject-matter, the purpose, and the object of section 328(5) of the Constitution. The Court must bear in mind that it is the Constitution it is construing.

Section 328(5) of the Constitution is a fundamental law which prescribes the procedural and substantive requirements for a valid amendment of the Constitution. It sets out an objective standard for the determination of the validity of the amendment. The words “the membership of each House”, as used in section 328(5) of the Constitution, refer to an element of the prescribed requirements of the objective standard for the measurement of the validity of the amendment of the Constitution which is peculiar to each House.

The requirement that the amount of the vote in favour of the Constitutional Bill must be not less than two-thirds of the membership of the House is applicable to votes by each House. The only factor of the requirement of the objective standard for the measurement of the validity of the proposed amendment which differentiates one House from the other, and relates to its membership, is the total number of persons the Constitution declares to be what each House consists of.

Section 120(1) of the Constitution provides that the Senate consists of eighty Senators, who become its members by being elected by the electorate in the manner prescribed. Section 124(1) of the Constitution provides that the National Assembly consists of two hundred and seventy Members, who are elected in the manner prescribed.

It is necessary to consider the meaning and purpose of other provisions of the Constitution that have a bearing on the subject of section 328(5) of the Constitution. No single constitutional provision may be taken out of its context and interpreted by itself.

The fundamental principle is that a Constitution is a mode of limited government, characterised by the apportionment and distribution of powers. The powers concerned must be exercised for the benefit of the people as a whole in accordance with the constitutionally prescribed procedures.

Section 117(2)(a) of the Constitution expressly provides that the power to amend the Constitution conferred on the Legislature must be exercised in accordance with section 328 of the Constitution.

Sections 120(1) and 124(1) of the Constitution are the laws governing the composition of the Houses. The contents of each provision provide the meaning of the words “the membership of each House”, as used in section 328(5) of the Constitution.

The subject-matter of section 328(5) of the Constitution is the objective standard for the measurement of the validity of the amendment.

As an element of the standard by which the validity of the amendment of the supreme law of the land is to be measured, the membership of each House has to be a constant element enjoying a degree of permanence. Considering the fact that amendment of section 328(5) of the Constitution is rendered more difficult by the requirements of section 328(9) of the Constitution, the membership of each House, in the context of section 328(5) of the Constitution, is a constant factor.

Section 138(1) of the Constitution provides that all questions proposed for decision in either House of Parliament are to be decided by a majority of the votes of the Members of that House present and voting.

The provision of a special procedure, under section 328 of the Constitution, for the exercise of the power to amend the Constitution, means that the procedure prescribed by section 138(1) of the Constitution is not applicable to the special process of amending the Constitution.

The exclusion of the procedure for deciding questions proposed for decision in either House of Parliament, prescribed in section 138(1)(a) of the Constitution, from the special process of amending the Constitution is evidence of the intention of the makers of the Constitution to protect the Constitution from fluctuating standards for the measurement of the validity of the amendment of the Constitution.

The effect of the contention by the respondents that the words “the membership of each House”, as used in section 328(5) of the Constitution, mean the total number of Members of the House who are alive and capable of voting at the time the vote is taken is the importation of the procedure prescribed by section 138(1)(a) of the Constitution into the special process of amending the supreme law of the land.

The interpretation of the words “the membership of each House”, as used in section 328(5) of the Constitution, to mean the total number of persons the Constitution declares each House to consist of is consistent with the object of the provision.

The purpose and object of the requirements of the procedure for the exercise of the power to amend the Constitution, prescribed by section 328(5) of the Constitution, is to ensure that the amendment of the Constitution is of common benefit to the people. The procedural and substantive requirements of section 328(5) of the Constitution ensure that there is representation of the people and protection of their interests in the process of the amendment of the Constitution.

In making the Constitution, and committing themselves to it as the supreme law of the land, the people imposed on themselves the obligation to accept an amendment of the Constitution effected by a vote in accordance with the standard of validity prescribed by section 328(5) of the Constitution.

The meaning of the words “the membership of each House” as the whole number of persons the Constitution has declared the House to consist of receives support from the provisions of section 344(3) and (4) of the Constitution. The section reads, in relevant part, as follows:

“344 Quorum and effect of vacancies in Constitutional bodies

(1)…,.;

(2)…,.;

(3) Any reference in this Constitution to the votes of —

(a) Half of the membership of a body whose membership is not a multiple of two;

(b) Two-thirds of the membership of a body whose membership is not a multiple of three; or

(c) Three-quarters of the membership of a body whose membership is not a multiple of four; is to be interpreted to mean that the number of votes must be not less than the whole number next above one-half, two-thirds or three-quarters, as the case may be, of the body's membership.

(4) Any reference to the total membership of Parliament is a reference to the total number of persons who, for the time being, are Members of Parliament.”

Counsel for the applicants argued that the Constitution maintains a distinction between section 344(4) and section 328(5).

He submitted that the Constitution must be interpreted purposively and not in the abstract.

He took the point further and argued that section 344 is not a substantive section. It is a definition section. There is a difference in the construction of the two. Any other interpretation would render section 328(5) meaningless. The provision is meant to make constitutional amendment difficult.

He finally argued that section 328 of the Constitution grades different provisions based on how important they are.

Counsel for the first, second, and third respondents a contrary view.

He argued that the first port of call is the definition of “Member of Parliament” in the Constitution. 'Membership' is derived from 'Member of Parliament'. Hence, in order to understand what “membership” means, regard has to be had to the definition of “Member of Parliament”. Membership depends on the construction of 'Member of Parliament'.

He further contended that the law does not allow for a vacuum.

The interpretation to be given to the provision must be one which best achieves the intention of the lawmakers.

Counsel for the first, second, and third respondents urged the Court to find, in respect of the Senate, that the relevant number is 79. He said the reason was that section 328(5) of the Constitution relates to “membership”, which is derived from “Member”. 'Member of Parliament' relates to a person who is alive and is able to carry out Parliamentary business.

Section 344(4) of the Constitution is related to sections such as section 109(1), which relates to a vote of no confidence in Government, section 114(2), which relates to the revocation of a declaration of war, section 113(2), which relates to the approval of a declaration of a State of Emergency, section 122(8)(f), which relates to the vacation of office by the President of the Senate, and section 126(8)(f), which relates to the vacation of office by the Speaker.

The provisions, which give substance to section 344(4) of the Constitution, show that its application is determined by the subject-matters to which the specific provisions relate and is confined to those provisions. The provisions of section 344(4) cannot be interpreted as giving meaning to section 328(5) of the Constitution. To the contrary, section 344(4) of the Constitution sheds light on what section 328(5) of the Constitution does not mean.

There is no provision which is similar to section 328(5) in the Constitution.

The contrast can be seen in section 113(6) of the Constitution, which provides:

“113(6) If, by a resolution passed by a majority of the members present at a joint sitting of the Senate and the National Assembly, Parliament resolves that a declaration of a State of Public Emergency —…,.”…,.

This provision relates to Members “present”.

The majority that carries the day depends on the Members actually present and voting.

Another example of a similarly worded provision is section 138 of the Constitution, which provides:

“138 Voting and right of audience in Parliament

(1) Except where this Constitution provides otherwise —

(a) All questions proposed for decision in either House of Parliament are decided by a majority of the votes of the Members of that House present and voting;…,.”

The provision under which the Constitution is amended does not relate to the presence of the Members. Its provisions are an exception referred to in section 138(1) of the Constitution.

It means that, in terms of section 328(5) of the Constitution, the controlling concept is the membership of the House, which relates to the total number of persons the House is declared, by the Constitution, to consist of. The number does not fluctuate since it is fixed by the Constitution.

It is a definite number.

When the provisions are contrasted, it becomes apparent that “the membership of each House”, as used in section 328(5) of the Constitution, does not mean persons who are, at any given time, Members of Parliament.

Section 328(5) of the Constitution has two references to membership of the House. The first relates to the exercise of the power to vote. The vote can only be cast by Members of Parliament who are present and voting. The second reference is to the objective standard for the measurement of the votes cast in favour of the proposed amendment to the Constitution. It is the requirement of that objective standard that the votes in favour of the proposed amendment must not be less than two-thirds of the membership of the House concerned.

For the purposes of the objective standard for the measurement of the validity of amendment of the Constitution, in terms of section 328(5) of the Constitution, the makers of the Constitution decided to fix the minimum threshold to be reached by the votes in favour of the proposed amendment by reference to the constant constitutive element of each House. They were free, in the exercise of the power of sovereignty, to do so. They were not under delegated authority, as the Legislature is.

Section 328(5) of the Constitution is not in conflict with any other provision of the supreme law. The matters it regulates are exclusive to its provisions.

“The membership of each House” is an essential element of the requirement of the objective standard fixed by the fundamental law. It is therefore binding on all Members of the House, individually and collectively, in the exercise of the power to amend the Constitution.

The people decreed, by the supreme law, that the validity of the exercise of the power to amend its provisions be determined by application of an objective standard, which takes into account the representation and the protection of their interests.

When searching for the true construction of a constitutional provision, a court must constantly bear in mind that its authors were not executing a delegated authority, limited by other constitutional constraints. They were establishing a fundamental law. To that extent, the people, in the exercise of the power of sovereignty, were intent upon establishing such principles as seemed best calculated to produce good government and promote public happiness. They did so at the expense of any, and all, existing institutions which might stand in their way.

The objective standard for the determination of the validity of the proposed amendment of the Constitution is applied to the amount of votes in favour of the amendment at the third reading. It is that vote which decides the question whether the Constitutional Bill is passed by the House concerned. Compliance with all the procedural requirements prescribed by section 328 of the Constitution is obligatory.

In enacting the provisions of section 328(5) of the Constitution, the people deliberately chose the formulation of the objective standard for the determination of the validity of an amendment of the Constitution. The objective standard subjects the votes in favour of the proposed amendment to a minimum threshold fixed by reference to the whole number of persons fixed by the Constitution itself as the anchor for the standard. The people settled for the formula prescribed by section 328(5) of the Constitution because they were satisfied that its application would secure the object of protection and promotion of their interests. It is a means of affording indirect popular participation in the process of amending the fundamental law.

Section 344(3) of the Constitution relates to provisions which use the formula for determining the validity of decisions on any questions for decision by the House by requiring the votes in favour of what is proposed to reach a minimum threshold fixed by reference to the membership of the body. The sub-section prescribes what should happen when “the membership of a body” is not a multiple of the denominator to the vulgar fraction to express the minimum threshold.

The words “membership of a body”, as used in section 344(3) of the Constitution, relate to the whole number of members the body is declared by the Constitution to consist of.

It is clear, from section 344(3) of the Constitution, that reference to the “membership of a body” in any provision of the Constitution is reference to the total number of persons the Constitution has declared the body to consist of.

It is important to note, for the purpose of the determination of the question before the Court, that section 344(3) of the Constitution refers to “the membership of a body” when used in the Constitution in reference to the votes of a constitutional body.

Section 328(5) of the Constitution falls into the category of provisions in which the formula fixing the minimum threshold for votes in favour of the proposed action by reference to the membership of the body concerned is used.

The words “the membership of each House” are used in section 328(5) of the Constitution in a constitutive sense to refer to what constitutes each House, as prescribed by the fundamental law. The words refer to what constitutes the full strength of each House.

The correctness of the construction of section 328(5) of the Constitution, linking the minimum threshold the votes in favour of the proposed amendment of the Constitution have to reach to the whole number of Members making up each House, as fixed by the Constitution itself, is supported by the provisions of section 344(4) of the Constitution.

Section 344(4) of the Constitution provides that any reference in the Constitution to “the total membership” of Parliament is reference to the total number of persons who for the time being are Members of Parliament.

The definition of the total membership of Parliament is given immediately after the provisions of section 344(3), where reference is made to “the membership of a body”.

The effect of section 344(4) of the Constitution is that where reference is made in a provision of the Constitution to the “membership of a body”, and that body is one of the Houses of Parliament, reference is not being made to the total number of persons who for the time being are Members of Parliament.

Section 332 of the Constitution defines “Member of Parliament” to mean a Senator or a Member of the National Assembly.

The people decided that the objective standard for the determination of the validity of an amendment of the Constitution should not include an essential element which would depend on the effects of unpredictable occurrences of such events as death or removal from office of Members of either House. This self-restriction in the Constitution serves to guarantee stability and respect for the established constitutional order.

The amendment of the Constitution must not be an easy process.

Section 328 of the Constitution prescribes the procedure for amending the Constitution, reflecting different degrees of difficulty depending on the provision sought to be amended. The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of Constitutional Law.

The Constitution would not occupy the special place it occupies today in the country's legal system.

Changing provisions of the Constitution, without following the special procedure provided for in section 328, would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law. See BRYCE “The American Commonwealth” Vol 1…,.

The effect and substantive value of the foundational principle of supremacy of the Constitution is that, once ordained by the people, the Constitution and its provisions bind the people themselves. The people must respect and obey the dictates of what has been done by Parliament within the ambit of the limited powers they would have conferred on it and in accordance with the procedure they would have prescribed for its conduct.

Democracy is a limited form of government. The principle of supremacy of the Constitution is to the effect that, once the people have given the representatives they would have put in Parliament, the power to make the final decision by the prescribed amount of votes in favour of the amendment of the Constitution in accordance with the prescribed procedure, they would have bound themselves to accept the amendment as being in the common interests of the entire people.

Therein lies and governs the principle of the rule of law.

It is to the effect that law is the master to be obeyed by the State, every person, and every institution and agency of Government at every level.

When a Member of a House of Parliament casts a vote in favour of the proposed amendment to the Constitution, he or she is discharging a democratic mandate. He or she is not casting the vote for personal interests. The principle of representative democracy guarantees every Member of Parliament not only freedom in the exercise of his or her mandate but also equal status as a representative of the entire people.

In principle, each House complies with its function as a body of representation in its entirety. The law does not differentiate votes in favour of the proposed amendment to the Constitution according to the political affiliation of the Members casting the votes. The voter acts as a Member of the House who is required to act in accordance with his or her conscience within the confines of the duties of the office of membership.

The fact that a political party with a majority of Members of Parliament manages to secure the requisite special majority of two-thirds of the membership of the House to amend the Constitution does not change the fact that, at law, the affirmative votes for the amendment of the Constitution represent the entire citizenry.

The reason is that, although cast by an individual, the vote is an exercise of the power belonging to Parliament as a constitutional body established for the purpose of exercising legislative authority for the common good of the entire people. The people established Parliament as a means by which they would exercise, through representatives, the legislative authority they vested it with for their common interests. The Constitution creates a representative democracy, under-girded by the doctrine of separation of powers.

The interpretation of section 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.

Section 328 of the Constitution does not only prescribe the procedures that those entrusted with the power to amend the fundamental law have to keep in mind and bear the obligation to act according to their requirements in the exercise of the power. The duty-bearers must also appreciate the rationale behind the limitation on the exercise of the power conferred on them in the context of the dynamism of the relationship with the people. They have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by section 328 of the Constitution.

ANALYSIS OF THE FACTS

NATIONAL ASSEMBLY

The parties agreed that the applicable figure with regards the National Assembly is 270. They agreed that two-thirds of that number is 180.

The agreement was based on the interpretation of section 124(1) of the Constitution which provides for the composition of the National Assembly.

The question was whether the applicants established, on a balance of probabilities, that there was no vote in Parliament.

The cause of action, as pleaded, was the alleged complete failure by the Speaker to conduct voting proceedings in the House to enable the Constitutional Bill to be passed. In the same breath, the applicants accepted that the voting did take place.

The cause of action, on this version of pleadings, was that the votes cast in favour of the Constitutional Bill failed to reach the minimum threshold of 180 votes required by the provisions of section 328(5) of the Constitution.

The finding of the facts in issue depended on the finding on the accuracy of the sources of information produced as evidence by the parties.

It is necessary to make a finding on the credibility of the evidence adduced by the parties.

Counsel for the applicants argued that the unrevised Hansard and the Order Paper showed that the votes in favour of the Constitutional Bill did not reach the required minimum threshold of 180. He said the 182 votes relied upon by the respondents to prove compliance with the procedural and substantive requirements of section 328(5) of the Constitution included Members who were in Uganda on official duties and those who were absent for undisclosed reasons.

When asked why the records of Parliament were later corrected, counsel for the applicants argued that the “correction” was not a correction; it was a “creation” because the error in the original documents had not been identified. He went on to argue that “the so-called correction” went to the substantive business of Parliament.

He said it introduced a record that differed materially from the one reflective of the contemporaneous objections made by the first applicant during the proceedings of 25 July 2017.

The contention was that the correction was designed to cover up the irregularities in the proceedings conducted by the Speaker.

Counsel for the first, second, and third respondents took the view that there was compliance with the Constitution.

He argued that the applicants' cause of action was premised on the un-revised Hansard and Order Paper, documents subsequently lawfully corrected. He argued that the amended documents of Parliament remain extant until they are set aside. He reasoned that there was a need for an application for a declaration of invalidity of the amended documents because they are an official record of Parliament.

The contention was that there was nothing in the applicants' case on which reliance could be placed for rebuttal of the presumption that the contents of the official documents in the revised version represent the truth.

The Court noted that the applicants produced documents, the contents of which supported some of the averments they made. The respondents did not take issue with the authenticity of the documents produced by the applicants to support their case. The second respondent accepted that the documents were authentic.

The point of departure was that the second respondent took the view that the documents relied upon by the applicants were inaccurate. They were subsequently lawfully corrected. The applicants, on the other hand, rejected the corrections made to the documents, describing them as “creations”.

The evidence showed that the Hansard recorders recorded at ten minute intervals. In addition, there was an audio recording of proceedings. There was also a video recording process which was contemporaneous with both the manual and audio recordings. A closer analysis of the scenario suggests that Parliament had realised that it could not rely on the Hansard recorders' record only. The fact that there were contemporaneous audio and video recordings of the proceedings was an indication of the fact that there was an acceptance of the fact that a manual recording process is potentially inaccurate.

It was difficult to understand why the applicants sought to rely on the manual recording of the Hansard recorders, which was the basis of the unrevised Hansard. It is the audio and video recordings which are used to correct the un-revised Hansard record so that it reflects accurately what transpired in the National Assembly.

The second respondent stated that the un-revised Hansard and the Order Paper used by the applicants were corrected in terms of Standing Order 131. The applicants did not deny that those documents could be lawfully corrected in terms of Standing Order 131.

Standing Order 131 provides that:

“…, if the numbers have been inaccurately reported or an error occurs in the names of the division lists, the chair, on being informed of such errors, must order the Journal of the House to be corrected.”

Standing Order 199, on the Journal of the House, provides:

“199 (1) The Clerk must produce the Votes and Proceedings of the House which must be printed and distributed to Members from day to day.

(2) The Votes and Proceedings so printed, bound, and signed by the Speaker, must constitute the Journal of the House.”

KATHERINE SWINTON, in an article titled “Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege”, Osgoode Hall Law Journal, Vol 14, No.2 (October 1976)…, while writing on Parliamentary practice, said:

“Therefore, the enrolled copy of an Act would appear to be the original copy retained by the Clerk of the Parliaments. This makes no reference to the number of votes recorded nor the number of readings in the passage of the bill, showing only that the House of Commons and Senate passed the bill and royal assent was recorded on stated dates.

To learn of the exact number of votes in favour of a bill and the number of readings, it is necessary to refer to the Journals of the respective Houses or to Hansard.

The Journals are the official record of the proceedings of the House. They are compiled daily from the 'scroll' of the Clerk. The scroll, in reality, foolscap sheets written in longhand by the Clerk, records the events of the House, whether the tabling of documents, the readings of a bill, or the votes on a bill or an amendment.

The Journals made up from the scroll are more comprehensive, as they include the text of amendments and the results of recorded divisions, as well as the date of royal assent to bills, the Speaker's rulings on procedure and questions of privilege, and the text of royal recommendations.

According to BEAUCHESNE, any conflict between the scroll and the Journals would be solved by reliance on the Journals.

The Journals do not serve the same purpose as Hansard, although there is some slight degree of overlap in their content.

Hansard records the verbatim proceedings of the House, that is, the speeches and comments in the Chamber. The Journals are much more cryptic and are similar to minutes of a meeting. Their judicial treatment is also potentially different: the Journals are admissible evidence, whereas Hansard is normally excluded.

In practice, it may be that the Journals can rarely be admitted due to Parliamentary privilege, but, they are at least potentially open to judicial scrutiny.”…,.

When the second respondent produced documents that corrected some of the errors, it was incumbent on the applicants to rebut the respondents' version by tendering evidence which showed that the respondents' version of events could not be possibly true.

In paragraph 58.4 of the first applicant's answering affidavit, he averred:

“This is why, even at this late stage, the second respondent has failed to produce affidavits from the two Honourables Mabuwa and Marapira to prove that they were in Parliament. They were not. I do not recall seeing them there and the Hansard confirms this.”

The second respondent denied the averment and produced documents that proved that the two Members were in the House during the time the voting for the proposed amendment of the Constitution was conducted.

It was not for the second respondent to prove the presence of the Members concerned. It was for the applicants to prove their absence.

The applicants obtained an affidavit from the Honourable Brian Tshuma, who said that at the relevant time he was away in Uganda on Parliamentary business.

That fact did not take the applicants' case any further.

It was confirmed by the corrected record of proceedings.

The applicants did not allege that they had correlated the manual recording and the audio recording in order to verify the accuracy of what the respondents alleged. On the other hand, the second respondent took the trouble to go through the audio recording in order to satisfy himself that the unrevised Hansard tallied with it. As a result of the process, the second respondent made corrections to the master copy of the un-revised Hansard to create documents that accurately reflected what transpired in the House on 25 July 2017.

The applicants cannot deny the correctness of the audio recording without themselves having correlated their unrevised Hansard to the audio recording.

One cannot deny the correctness of a superior recording mechanism on the strength of a document prepared using a potentially inaccurate method of recording without first verifying the contents of the more superior method of recording.

Before criticising the revised Hansard, the applicants needed to correlate the manually prepared Hansard with the audio recording.

The version backed by the evidence with more probative value is the one to be preferred.

The probative value of evidence is impacted upon, negatively or positively, as the case may be, when regard is had to the manner in which the evidence was compiled. The documents produced by the second respondent are corroborated by the audio recording, the more accurate of the means of recording.

The Court would lean towards the party who took the trouble to revisit the audio recording.

The National Assembly is a creature of the Constitution and it is one of the constituent parts of Parliament. There is a presumption of constitutionality as regards the conduct of business of the House. It has been said that the presumption is in favour of every legislative act, and that the whole burden of proof lies on the party who denies its constitutionality: Brown v Maryland 25 US 419, 436 (1827); Lawrence v State Tax Commission of Mississippi 286 US 276, 283 (1932).

Having made the finding that the revised Hansard is the true record of what ensued in the National Assembly, regard must be had to the contents of the revised Hansard in an effort to establish whether or not a vote did take place in the House.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

“180 Appointment of judges

FACTUAL BACKGROUND

The main contention by the applicants was that there was no proper vote in Parliament....,.

The applicants alleged that the Constitutional Bill was passed in the Senate by 53 votes. They alleged that the minimum two-thirds threshold for votes in favour of a Constitutional Bill, in the Senate, is 54 votes....,.

On the merits, the first and the third respondents averred that the procedural requirement that there must be an affirmative two-thirds vote for a valid Constitutional amendment was complied with....,.

THE SENATE

The vote in the Senate was conducted on 1 August 2017.

The applicants relied on Order Paper 75, titled “ADVANCE COPY - UNCORRECTED”, to outline the events that took place in the Senate on the day in question.

The applicants' position, regarding the proceedings in the Senate, was that there was a vote. The contention was that the vote in favour of the proposed amendment to the Constitution did not reach the minimum two-thirds majority required by section 328(5) of the Constitution.

The Order Paper, and the un-revised Hansard, showed that 53 Senators voted in favour of the Constitutional Bill. The composition of the Senate is eighty Members. The applicants contended that the minimum threshold to be reached by votes in favour of a proposed amendment of the Constitution, in accordance with the requirements of section 328(5) of the Constitution, was fixed by reference to the total number of eighty Senators prescribed by section 120(1) of the Constitution.

Two-thirds of 80 is 54 and not 53.

The applicants argued that the Constitutional Bill was not passed by the Senate in accordance with the procedure prescribed by section 328(5) of the Constitution.

The third respondent opposed the application insofar as it related to the Senate. Her argument was as follows:

The Constitutional Bill was passed with the requisite minimum two-thirds majority. The membership of the Senate was reduced from eighty to seventy-nine after the death of Senator Alfina Juba on 09 July 2017.

In their answering papers, the applicants averred that the membership of the Senate, for the purpose of compliance with the requirements of section 328(5) of the Constitution, does not fluctuate. It remains at eighty. They contended that there is need to protect the integrity of the Constitution by requiring a two-thirds majority calculated against a complement of eighty Members, notwithstanding the death of a Senator....,.

Section 328 of the Constitution provides, in part:

“328 Amendment of Constitution

INTERPRETATION OF SECTION 328(5) OF THE CONSTITUTION

“344 Quorum and effect of vacancies in Constitutional bodies

“138 Voting and right of audience in Parliament

ANALYSIS OF THE FACTS

SENATE

The parties disagreed when it came to the interpretation of the provisions of section 120(1) of the Constitution, which provide for the composition of the Senate.

It is not in dispute that, at the time the vote was conducted, the Senate had only 79 Members.

The question is whether, in calculating the minimum two-thirds threshold, the constitutive number, that is eighty, or the functional number of Senators who are able to participate and cast their votes should be used.

It was common cause that section 344(3)(b) of the Constitution refers to the formula used in section 328(5) of the Constitution.

In terms of section 120 of the Constitution, the Senate consists of eighty Senators. Section 328(5) of the Constitution requires that the votes in the Senate in favour of an amendment of the Constitution be not less than two-thirds of its membership.

Eighty is the only number specified in the Constitution which relates to the membership of the Senate in a constitutive sense.

In terms of section 344(3)(b) of the Constitution, eighty is the membership of the Senate. There is no provision in the Constitution which refers to seventy-nine or any other number other than eighty in relation to the membership of the Senate.

Now that it has been resolved that the relevant figure is eighty, another question arises. The question relates to whether 53 is two-thirds of 80.

This is answered by section 344(3)(b) of the Constitution.

Eighty is not a multiple of three. The next multiple of three after 80 is 81. One-third of 81 is 27, and two-thirds of 81 is 54. Two-thirds of 80 is 54 in terms of section 344(3) of the Constitution.

It is not in dispute that the “Aye” votes in the Senate were 53. They were one short. The “Aye” votes in the Senate did not reach the required minimum two-thirds majority to pass the Constitutional Bill....,.

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii)...,.

(iv) Whether the first respondent conducted the election of the Speaker properly and procedurally and whether Members belonging to the MDC-T party displayed their votes to their colleagues in Parliament.

(v) Whether the requirements of a secret ballot, as enjoined by the Standing Orders and the Constitution, were violated.

(vi) Whether the above irregularities, if any, justify setting aside the election of the second respondent as Speaker....,.

Conduct of Election

At the beginning of the election in casu, the first respondent laid out, in some detail, the procedure to be followed. However, during the election process, there were several deviations from the procedure prescribed, as appears from the papers and exhibits filed herein. In particular, some Members folded their completed ballot papers outside the polling booth and several MDC-T Members openly displayed their ballot papers to their colleagues. Again, most of the Members did not leave the Chamber after casting their votes.

All in all, it would appear that the first respondent did not stamp his authority on the conduct of the proceedings and was unable to prevent or stop the above-mentioned irregularities.

In his opposing papers, the first respondent explains that the membership of the House of Assembly had increased from 150 to 210 Members, all of whom were now elected and the majority of whom were opposition MDC Members. These factors contributed to a more exuberant atmosphere in the House which affected the dynamics of the election process. However, according to the first respondent, the proceedings were not disorderly or chaotic and all the Members in the House were able to vote freely and without any impediment.

Violation of Secret Ballot Requirements

Counsel for the applicants submits that the displaying of votes by participants in any election, as a matter of principle, violates the secrecy of the ballot because the votes displayed become known and influence the voting behaviour of the other participants.

In the specific case of an election to the position of Speaker, there are several compelling reasons for maintaining the secrecy of the ballot. On the one hand, the person elected to that position should remain unaware of how particular Members voted in order to retain his or her impartiality in the proceedings of the House. On the other hand, Members should be able to elect a Speaker endowed with the requisite authority and independence without fear of sanction from their political party or constituency. Moreover, according to the Lectric Law Library Lexicon (at www.lectlaw.com), the term “secret ballot” is defined as:

“The expression by ballot, voting machine, or otherwise but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”

As against this, counsel for the first respondent contends that only 6 out of the total number of 208 Members were specifically identified by the applicants as having displayed their votes. Therefore, there was substantial compliance with the secret ballot requirement. In any event, she submits that the definition relied upon by the applicants is overly theoretical and technically deficient. A more functional definition is provided in Webster's New College Dictionary with the following essential elements:-

The provision of official ballot papers printed at public expense; on which the names of the nominated candidates appear; which are distributed only at the polling place; and which are marked in secret.

Again, in Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD)…, the requirements for a secret ballot were held to be as follows:-

Only those qualified must vote; the number of votes cast and the votes for and against must be counted; each voter must be able to vote privately and in secret; only the votes of eligible voters must be counted.

In essence, so long as voters are able to cast their votes in secret, they are entitled to voluntarily display their votes to others, in keeping with the freedom of expression guaranteed by section 20 of the Constitution.

Counsel for the second respondent also relies on Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD) for the proposition that the requirements of a secret ballot are designed to protect voters from having to display their votes. Therefore, a voter can waive the secrecy of his own vote by free choice. This is a right vested in the voter himself.

In the instant case, the crucial question is whether or not it was reasonably possible for the Members in the House to cast their votes in secret.

In this regard, he submits that all the Members marked their ballots in secrecy within the polling booths provided. None of the Members complained of having been coerced or pressurised to expose their votes. Moreover, the applicants' claim that the majority of the MDC-T Members displayed their votes is not borne out by the evidence. In any event, those Members who did display their votes did so purely voluntarily without complaining that their voting rights had been violated. In short, such voluntary disclosure did not violate the secrecy of the election vote.

Whether Setting Aside of Election Justified

As regards the conduct of the election in casu generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent.

In this situation, the approach to be adopted was explained by GUBBAY JA in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, as follows:

“It is, I think, well established that, in motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.”

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic.

On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided. Taking into account the usual volatility associated with the conduct of Parliamentary business generally, I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion.

Turning to the open display of votes by at least six (6), or possibly more, of the voting Members, I agree with counsel for the applicants that the provisions of section 39(2) of the Constitution, as read with Standing Order No.6, are peremptory and must be strictly complied with.

Thus, if it is shown that the requirements of a secret ballot have been violated in any election to the position of Speaker, the election result should, in principle, be declared a nullity. This would be so unless it is shown that nullification would lead to great injustice or public inconvenience: see Pio v Franklin N.O. & Another 1949 (3) SA 442 (CPD); Trans-Afrika Credit and Savings Bank Ltd v Union Guarantee and Insurance Co. Ltd 1963 (2) SA 92 (CPD).

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.

On the evidence before this Court, there is nothing to show that any of the Members in the House did not cast their votes in secret or that the Members who did display their votes did so under any threat or duress.

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.

In the present context, it is necessary to bear in mind that declaratory relief of the nature sought in casu is always discretionary. This is clearly recognised in section 14 of the High Court Act [Chapter 7:06].

In principle, suitable circumstances must be shown to exist to justify any exercise of the Court's declaratory discretion.

As I have already stated earlier, Parliament is generally at large to regulate its own proceedings without external interference. As a rule, the courts should be loathe to interfere with the internal proceedings of Parliament unless there is a failure to comply with Constitutional strictures.

In the instant case, I do not perceive any such failure and am unable to find any other basis for setting aside the election of the Speaker.

Disposition

It follows from all of the foregoing that the applicants have failed to establish any justification, either as regards the general conduct of the impugned election or with respect to the secrecy of the votes cast, or otherwise, for setting aside or nullifying the election of the second respondent as Speaker of the House of Assembly.

On the other hand, I am unable to discern any valid ground for penalising any one, or all, of the applicants with a punitive award of costs as is claimed by the second respondent. I do not understand this application to be merely frivolous or vexatious or to have been actuated by malice or other ulterior motive.

In the result, the application is dismissed with costs on the ordinary scale.

CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application in terms of section 85(1)(a) of the Constitution and the background to the matter is as follows:-

The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites economic reasons, while the third applicant alleges his absence is premised on economic and political reasons.

The applicants state that they wish to participate in the country's harmonized general elections due later this year, 2018, but are precluded from doing so by certain sections of the relevant law. They accordingly seek the following relief:-

“IT IS DECLARED THAT:

1. The failure to afford voting facilities to the applicants and similarly placed Zimbabweans based abroad be and is hereby declared unconstitutional in that it violates applicants' rights as enshrined in section 67 and 56 of the Constitution.

ACCORDINGLY, IT IS ORDERED THAT:

1. Section 23 of the Electoral Act [Chapter 2:13] be and is hereby declared constitutionally invalid as far as it excludes citizens not resident in Zimbabwe from registering as voters in contravention of section 67(3) as read with paragraph 2 of the 4th Schedule to the Constitution of Zimbabwe.

2. Section 72 of the Electoral Act [Chapter 2:13] is hereby declared constitutionally invalid as far as it excludes citizens of Zimbabwe who are not in Government service from exercising their right to vote in contravention of sections 56(1), 56(3), 56(4) and 67(3) of the Constitution of Zimbabwe.

3. The respondents are hereby ordered to put in place all appropriate measures to enable the applicants and any other Zimbabweans based abroad to participate in the 2018 Presidential, Parliamentary, and Local Authority elections as voters.”

As is evident from the draft relief sought, that, it is the applicants' case that sections 23 and 72 of the Electoral Act [Chapter 2:13] infringe their right to vote as enshrined in section 67(3) as read with paragraph 1(2) of the 4th Schedule to the Constitution.

It is also their argument that section 72 of the Electoral Act [Chapter 2:13] violates their rights in terms of section 56(1), (3) and (4) of the Constitution.

Section 67 of the Constitution deals with 'Political Rights' and its subsection (3) confers the right to vote on every Zimbabwean citizen of 18 years and above. Section 56 and the sub-sections cited relate to equality and non-discrimination.

The applicants argue that, in terms of section 67(3) of the Constitution, every citizen over the age of eighteen (18) years is entitled to vote regardless of where they reside or resident. In their opinion, the residency requirements set out in section 23(3) of the Electoral Act (“the Act”) should not, and cannot, negate the right of any Zimbabwean above the age of 18 years to vote.

Because the Electoral Act does not facilitate the registration and voting of Zimbabweans based abroad, the applicants contend that the result is a negation of section 67(3) as read with paragraph 1(2) of the 4th Schedule to the Constitution.

They further aver that sub-section 23(3) and section 72 of the Electoral Act are discriminatory for the reason that they restrict the right to vote only to persons physically in Zimbabwe, to the prejudice of absent voters. They contend that the benefit extended to a certain class of people, under section 72 of the Electoral Act, unjustly discriminates against them because they are not in Government service nor are they spouses of such civil servants.

The applicants, in addition, allege that denial of the diaspora vote is contrary to international law, that is, Article 13 of the African Charter on Human and Peoples' Rights, sections 4.1.1, 4.1.8 and 5.1.8 of the SADC Principles and Guidelines Governing Democratic Elections, and Article 25 of the International Covenant on Civil and Political Rights.

Counsel for the applicants further argues that the right to vote, given under section 67(3) of the Constitution, does not depend on anything other than citizenship and age.

He also relied on section 155(1)(c) of the Constitution which he described as an 'executionary provision'. The contention in this regard is that all voters are equal, regardless of where a person is residing for a particular period.

Counsel for the applicants further contends that the right accorded in the Constitution cannot be attenuated by legislation, and that, in terms of section 35(3)(a) of the Constitution, the State is obliged to 'follow' its citizens wherever they are; this obligation not being informed by the location of the citizen but by the citizenship of the person.

In terms of section 67(3) of the Constitution as read with the 4th Schedule to the Constitution, it is further argued, everyone not disqualified from voting is entitled to vote. Citizens in the diaspora are not disqualified from voting. The 4th Schedule is different from its equivalent under the erstwhile Constitution and does not detract from sections 67, 35 and 155 of the Constitution.

He postulates that the according of a right to vote can only have meaning if it is given to a person who would otherwise not have voted. Once a citizen remains outside the constituency for the relevant period, there is no provision for the equitable use of discretion by the Zimbabwe Electoral Commission. Reference was made to the fact that South Africa, Mozambique, Senegal, Rwanda, Ghana, Kenya, Botswana, Namibia, India, United States of America, and Australia all grant their citizens in the diaspora the right to vote.

Finally, counsel for the applicants argues that there was no need to amend the Constitution but that the Government needed to amend its attitude.

The second (Chairperson, Zimbabwe Electoral Commission) and third (Zimbabwe Electoral Commission) respondents filed papers indicating that they would abide by the order of the Court.

The first (the Minister of Justice, Legal, and Parliamentary Affairs), fourth (the Minister of Foreign Affairs), fifth (the Minister of Finance and Economic Development) and sixth (the Attorney General of Zimbabwe) respondents opposed the application and did so, generally, on the basis that anyone who wishes to exercise their right to vote can bring themselves into the confines of the law as currently worded and exercise the right to vote.

They also allege that the impugned provisions are not restrictive.

As regards section 72 of the Electoral Act, the first, fourth, fifth and sixth respondents allege that it is a justified differentiation between Government employees outside the country and those pursuing their own interests abroad because Government employees are required to be outside Zimbabwe on the polling day. They also allege that there is no obligation on the State to establish polling stations outside Zimbabwe.

The first, fourth, fifth and sixth respondents also contend that the impugned sections are administrative in nature and are consistent with the Constitution.

Counsel for the first, fourth, fifth and sixth respondents argues, in addition, that the arguments by counsel for the applicants have already been dealt with in Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17.

Her position is that the provisions under the erstwhile Constitution, and the provisions in the current Constitution, are similar. Section 67(3) is subject to the rest of the Constitution.

A person has the right to be retained only on the 'most appropriate roll'.

The 4th Schedule provides for an additional requirement of residency. The Constitution does not provide for external constituencies.

There is a presumption of coherence of the Constitution and the provisions of the Constitution should not be read in isolation.

Further, that the residency requirements have constitutional 'parentage' and are not unreasonable requirements.

A person can only lose their right to vote in terms of section 23(3) as read with section 33 of the Electoral Act [Chapter 2:13].

Section 33 of the Electoral Act provides for the procedural steps to be taken before a person is dis-entitled to vote.

In order to be entitled to vote in a constituency, a person has to have an interest in the relevant constituency and this is only safeguarded by the residency requirement.

Counsel for the first, fourth, fifth and sixth respondents contends that section 72 of the Electoral Act is justified for the reason that it relates to persons re-assigned by the Government. Persons abroad, on Government service, cannot vote in the hosting nations but applicants may be able to vote in their countries of residence depending on their circumstances.

Notwithstanding that there are other countries which permit the diaspora vote, it is her contention that Zimbabwe has to be guided by the wording of its Constitution, which clearly did not anticipate the diaspora vote. Thus, if the applicants feel strongly about the diaspora vote, they should petition Parliament to amend the Constitution....,.

In resolving this matter, it is apparent that four questions arise for determination, that is:-

1. Whether the Constitution of Zimbabwe, directly or indirectly, allows for the 'diaspora vote.'

2. Whether section 23 of the Electoral Act [Chapter 2:13] violates section 67(3) of the Constitution.

3. Whether section 72 of the Electoral Act [Chapter 2:13] violates subsections 56(1), (3) and (4) of the Constitution.

4. Whether international conventions and electoral laws have any influence in the interpretation of our electoral laws as currently phrased.

Whether the Constitution of Zimbabwe, directly or indirectly, allows for the 'diaspora vote'

The papers before the court point to one major point of dissent between the parties, and that is whether or not the Constitution, in the way it is worded in relevant parts, or in the import of such wording, envisages or anticipates a situation where Zimbabweans based abroad, by dint of their own volition, can vote during the country's harmonized general elections.

In other words, does the Constitution allow or not allow the so-called diaspora vote?

The applicants' view is in the affirmative while the respondents firmly subscribe to the opposite view.

My view is that this is the issue that must be determined first before one can consider the question of whether or not the impugned provisions of the Electoral Act violate the relevant provisions of the Constitution. This is particularly so where it is alleged, as in casu, that certain statutory provisions violate a particular constitutional provision, and where the meaning of such provision is the subject of dispute between the parties.

Section 67 of the Constitution deals with 'Political Rights' and in its sub-section (3) reads as follows:

“67 Political rights

(1)…,.

(2)…,.

(3) Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right —

(a) To vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret; and

(b) To stand for election for public office, and, if elected, to hold such office.”…,.

Paragraph 1(2) of the 4th Schedule to the Constitution provides as follows:

“(2) The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll, but, any such requirements must be consistent with this Constitution, in particular with section 67.”

As is apparent from the above, sub-section (3) confers the right to vote in all elections, on 'every Zimbabwean who is of or over eighteen years of age'. This right, however, is not absolute, since the same provision is prefixed with the words 'subject to this Constitution', whose effect is to limit this very right.

The clear meaning of this provision is that it must not be read in isolation but must 'subject' itself to other provisions of the Constitution that have a bearing, no matter how tangential, on the issue of electoral voting. The provision must, in other words, cohere or be consonant with all such other constitutional provisions.

Of these other provisions, the applicants specifically mention paragraph 1(2) of the 4th Schedule to the Constitution.

This provision, as already indicated, provides leeway for 'the Electoral Law' to prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll. However, any such requirements must be consistent with the Constitution, in particular with section 67 (it hardly needs mention that whether or not such residential requirements violate section 67 of the Constitution will depend on how that section itself is interpreted).

Paragraph (2) follows directly after paragraph 1(1) and must, logically, not be read independently from it, as the appellants seek to do. Doing so is to interpret paragraph 1(2) out of context (this would run counter to basic principles of statutory interpretation, which require that all relevant provisions in a statute, that deal with the subject for interpretation, must be considered together (see Tsvangirai v Mugabe & Others CC24-17)), with the possible result of giving it an unintended, if not erroneous, import.

The whole of paragraph 1 therefore reads as follows:

“1. Qualifications for registration as voter

(1) Subject to subparagraph (2) and to paragraph 2, a person is qualified to be registered as a voter on the voters roll of a constituency if he or she —

(a) Is of or over the age of eighteen years; and

(b) Is a Zimbabwean citizen.

(2) The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll, but, any such requirements must be consistent with this Constitution, in particular with section 67.”…,.

If this whole provision is read together with section 67(3) of the Constitution, as it should since it addresses the same issue, the simple meaning is that while paragraph 1(1) of the 4th Schedule to the Constitution gives the right to vote to every Zimbabwean citizen of or over 18 years of age, that right alone is not enough. It merely qualifies the citizen for registration as a voter, something that he is then required to do. The registration must be effected on a voter's roll, and that voters' roll must relate or 'belong' to a given constituency.

However, by virtue of paragraph 1(2) of the 4th Schedule to the Constitution additional residential qualifications may be prescribed, and these would, as it were, complete the package of voting requirements to be met before a citizen is allowed to vote.

This point was, in my view, correctly made in Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17 where MALABA DCJ…, had this to say in relation to Zimbabwe's electoral system:

“Under the Zimbabwean electoral system, a voter votes not only as a citizen of this country but also to protect his or her rights and interests as a resident of the constituency in which he or she is registered.”

In that judgment, the Court dealt with a challenge to the restriction of postal voting to Government officials and the residency requirements in the Electoral Act, albeit under the old Constitution. The issues are, however, the same as the ones in this case. The applicants have not challenged the correctness of this judgement nor established that it was distinguishable.

It should be noted that paragraph 1(1) is made 'subject to' paragraph 1(2). The import of this prefix, in my view, is simply to restate the fact that the requirements for eligibility to vote as outlined in paragraph 1(1) must take on board any additional residential requirements that may be prescribed in terms of paragraph 1(2).

The caution contained in paragraph 1(2) against these additional requirements violating the political rights guaranteed in section 67, especially subsection (3) thereof, is not to be interpreted narrowly, since this sub-section is made 'subject to' other provisions of the Constitution that deal with voting rights.

The clearest suggestion as to what 'constituency' for purposes of voting in general elections refers to, is given in section 160(1) of the Constitution.

The section falls under the heading 'DECLARATION OF ELECTORAL BOUNDARIES', and the subtitle 'Number of constituencies and wards'. It reads as follows:-

“(1) For the purpose of electing Members of Parliament, the Zimbabwe Electoral Commission must divide Zimbabwe into 210 constituencies.”…,.

It is not in dispute that Harmonised General Elections are held in order for the electorate to vote, among others, for Members of Parliament, a President, and Local Government representatives of their choice.

There can, in my view, therefore, be no doubt that the reference to 'constituency' in paragraph 1(1) of the 4th Schedule relates to any one of the 210 constituencies which the Zimbabwe Electoral Commission (ZEC) is constitutionally mandated to divide Zimbabwe into.

To facilitate the registration of a voter on the most appropriate voters' roll of a constituency, paragraph 1(2) of the 4th Schedule gives the discretion to prescribe additional residential requirements to the Electoral Law.

Clearly, in my view, the 'most appropriate voters roll' envisaged in this paragraph must be related to, and not exist outside, the specific constituency applicable to the voter in question.

The respondents argue, effectively, that one measure of this appropriateness is the voter's physical or 'deemed' residency in the constituency concerned.

The 'deemed' residency applies, with respect, to postal votes provided for under section 72 of the Electoral Act…,. Such residency must be related to a constituency and the postal voter must be registered on its voters' roll before he can vote from wherever, in or outside Zimbabwe, he might be located.

The constituency-based residential requirements for voting, I find, extend to the election of the President and Vice Presidents.

Counsel for the applicants argued that if the residential requirements are constitutional, they would only relate to Parliamentary and Local Government elections. He contended that, with regard to Presidential elections, the residential requirements are of no consequence because there is only one constituency in Presidential elections.

I am not persuaded by this argument in view of the provisions of section 92 of the Constitution which reads as follows:-

“92 Election of President and Vice Presidents

(1) The election of a President and two Vice-Presidents must take place within the period specified in section 158.

(2) Every candidate for election as President must nominate two persons to stand for election jointly with him or her as Vice-Presidents, and must designate one of those persons as his or her candidate for first Vice-President and the other as his or her candidate for second Vice-President.

(3) The President and the Vice-Presidents are directly elected jointly by registered voters throughout Zimbabwe, and the procedure for their election is as prescribed in the Electoral Law.

(4) The qualifications for registration as a voter and for voting at an election of a President and Vice-Presidents are set out in the 4th Schedule.

(5) The election of a President and Vice-Presidents must take place concurrently with every general election of Members of Parliament, provincial councils and local authorities.”…,.

In terms of section 92(4), the qualifications for registration as a voter, and voting, are prescribed in the 4th Schedule to the Constitution.

This is the very same Schedule that speaks to a constituency-based election and directs one to section 23 of the Electoral Act.

One significant provision of section 92 is paragraph (3) which makes reference to registered voters 'throughout Zimbabwe'.

This phrase delineates geographical parameters for the Presidential election, and, since the election is held concurrently with the rest of the harmonised elections, it (the phrase) is in perfect harmony with section 160 of the Constitution which relates to electoral boundaries.

The clear meaning is that the Presidential election is to be conducted in Zimbabwe, and, in order for a person to participate in it, he has to be in Zimbabwe, or deemed so, and, also, must be registered as a voter in terms of the 4th Schedule to the Constitution.

When the foregoing is considered, it becomes evident that the contention made for the applicants, that the right to vote given under section 67(3) of the Constitution, does not depend on anything other than citizenship and age, is not legally sustainable.

While it is, in some cases, correct, as contended for the applicants, that a right accorded in the Constitution cannot be attenuated by legislation; in casu, it is the Constitution itself which appears to attenuate, in a later provision, a right that it accords in an earlier one.

Further, the argument by counsel for the applicants that in terms of section 35(3) of the Constitution, the State is 'obliged' to follow its citizens wherever they are in the world to enable them to vote, and that its obligation to do so is not informed by the location of the citizen but his being a citizen, finds no support in the Constitution.

It is important to note that while a right granted by the Constitution may not always be limited through legislation; legislation itself cannot confer rights which the Constitution, in related provisions, specifically excludes.

Other provisions of the Constitution touch directly or indirectly on the issue of elections and the right of Zimbabwean citizens to participate in them.

Section 124 relates to the composition of the National Assembly and mentions 210 members elected from the same number of constituencies 'into which Zimbabwe is divided'.

Section 161 refers to delineation of electoral boundaries 'into which Zimbabwe is divided'.

With regards to section 155 of the Constitution, the applicants argue that the provision entitles them to cast their votes from abroad. The section provides as follows:

“155 Principles of electoral system

(1) Elections, which must be held regularly, and referendums, to which this Constitution applies must be —

(a) Peaceful, free, and fair;

(b) Conducted by secret ballot;

(c) Based on universal adult suffrage and equality of votes; and

(d) Free from violence and other electoral malpractices.

(2) The State must take all appropriate measures, including legislative measures, to ensure that effect is given to the principles set out in subsection (1), and, in particular, must —

(a) Ensure that all eligible citizens, that is to say the citizens qualified under the 4th Schedule, are registered as voters;

(b) Ensure that every citizen who is eligible to vote in an election or referendum has an opportunity to cast a vote, and must facilitate voting by persons with disabilities or special needs;

(c) Ensure that all political parties and candidates contesting an election or participating in a referendum have reasonable access to all material and information necessary for them to participate effectively;

(d) Provide all political parties and candidates contesting an election or participating in a referendum with fair and equal access to electronic and print media, both public and private; and

(e) Ensure the timely resolution of electoral disputes.”

Section 155(1)(c) of the Constitution relates to 'universal adult suffrage and equality of votes'.

The question is whether the provision necessarily means that every person without further requirements for qualification is entitled to vote.

It appears to me that the answer, in the negative, lies in sub-section 2(a) of the same provision. It restates the requirement for every voter to be qualified to vote in terms of the 4th Schedule to the Constitution.

Equality of votes, in my view, simply relates to the fact that no vote is more important or weightier than the other.

Section 155 is still subject to the rest of the Constitution, and, in particular, the 4th Schedule, and, therefore, the constituency-based residential requirements are still applicable.

Section 155(2)(b) clearly provides that every citizen eligible to vote must be availed the chance to vote. The key is in the eligibility to vote. The section itself is a secondary provision. It only applies after a person has brought himself within the strictures of section 67 and the 4th Schedule of the Constitution.

I find, in the result, that, since it cannot stand alone, section 155 of the Constitution does not assist the applicants' case.

It is trite that the Constitution is a legal instrument which falls to be interpreted, generally, according to the same principles that govern the interpretation of any other legislation.

In this respect, it is important to note, as stated in the case of Rushesha and Others v Dera and Others CC24-17, that the Constitution evinces one singular document, one singular law which is consistent within itself. This principle is aptly explained as follows in Tsvangirayi v Mugabe and Others CC24-17:

“The preferred rule of interpretation is that all relevant provisions having a bearing on the subject for interpretation must be considered together as the whole in order to give effect to the objective of the Constitution, taking into account the nature and scope of the rights, interests, and duties forming the subject matter of the provisions.”

In the South African case of State v Zuma and Others 1995 (2) SA 642 (CC), cited in the respondents' heads of argument, it was stated as follows:

“…,. We must heed LORD WILBERFORCE's reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to values the result is not interpretation but divination…,.”

When these principles are applied to the circumstances of this case, it becomes evident that an interpretation of all the provisions of the Constitution, as discussed above, that deal with the question of who may vote, where, and how, makes it abundantly clear that the Zimbabwean electoral system is constituency-based.

The constituencies, in terms of section 160 of the Constitution, are 210 in number and are located within the boundaries of the country.

The Constitution does not mandate the setting up of constituencies outside the borders of Zimbabwe.

This, in my view, directs attention to what the true intention of the Legislature was in this respect.

It appears to be clear that the exclusion of the diaspora vote, as can be evinced from the constitutional provisions referred to, was consciously contrived and therefore intended.

As stated in State v Zuma and Others 1995 (2) SA 642 (CC) the language used by the Legislature in effecting this result is not one that this Court can ignore in favour of values, no matter how meritorious, pertaining to the desirability or otherwise of permitting the diaspora vote. This is because the language is clear in its meaning and does not admit of any ambiguity.

In its wisdom, and for reasons that are not apparent, the Legislature chose to expressly exclude Zimbabwean citizens not in Government service, but based abroad, from voting in the country's harmonised elections. Had the intention been not to so exclude this group of citizens from voting, the Legislature would have clearly stated so.

This Court, dealing with constitutional interpretation, in Rushesha and Others v Dera and Others CC24-17, made the point that even what is not said has its own implications. The court remarked:

“The interpretation of a statute, and indeed a Constitution, is based not only on what the provision says but also on what the provision does not say…,.”

That the exclusion of the diaspora vote might have been intended is further demonstrated by the fact that this is not the first time that the issue of the diaspora vote has been brought before this Court.

There is a presumption that Parliament is aware of court judgments; Dodson v Potomac Mack Sales & Serv, 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); Waterman v. Halverson 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001).

When enacting laws that might impact on a certain area, the Legislature is presumed to be aware of the judgments of the courts on those issues.

As far back as 2002 and 2005, in the cases of Registrar General of Elections & Ors v Morgan Tsvangirai 2002 (1) ZLR (S) and Madzingo and Others v Minister of Justice and Others 2005 (1) ZLR 171 (S), respectively, this Court held that the diaspora vote is not provided for in the law and that the impugned sections were not unconstitutional.

The current Constitution was enacted in 2013, by which time the Legislature already knew that the law did not provide for a diaspora vote. However, no provision was inserted into the Constitution to expressly reverse this status quo.

Against this background, the only interpretation that accords with the Constitutional structure is that there is no legislative framework set out therein for the diaspora vote.

Bearing the foregoing in mind, I now turn to consider the other questions raised by this application.

Whether sections 23 and 72 of the Electoral Act violate section 67(3) of the Constitution

Section 23 of the Electoral Act [Chapter 2:13], which is one of the impugned provisions, provides:

“23 Residence qualifications of voters

Subject to the Constitution and this Act, in order to have the requisite residence qualifications to be registered as a voter in a particular constituency, a claimant must be resident in that constituency at the date of his or her claim:

Provided that if a claimant satisfies the Registrar-General of Voters that he or she is or intends to be a candidate for election as a Member of Parliament for a particular constituency in which he or she is not resident, the claimant may be registered as a voter in that constituency.
[Subsection amended by Act 17 of 2007]

(2) For the purposes of subsection (1), a claimant shall be deemed to be residing in a constituency while he or she is absent therefrom for a temporary purpose.

(3) A voter who is registered on the voters roll for a constituency, other than a voter who has been registered in that constituency in terms of the proviso to subsection (1), shall not be entitled to have his or her name retained on such roll if, for a continuous period of twelve months, he or she has ceased to reside in that constituency:

Provided that nothing in this sub-section shall prevent his or her name from being struck off such voters roll —

(a) On his or her being registered in another constituency; or

(b) If he or she becomes disqualified for registration as a voter.

(4) The Chief Elections Officer, Registrar-General of Voters, any Constituency Registrar, or any officer of the Commission may demand from any voter who is registered on the voters roll for a constituency proof of identity or proof of residence in that constituency or both of the foregoing.

(5) For the purposes of subsection (4), the Commission may prescribe documents that shall constitute proof of identity, and, additionally or alternatively, proof of residence:

Provided that the prescribing of such documents shall not preclude a person from proving his or her identity or residence by other means.”…,.

Section 23 of the Electoral Act deals with residency requirements for eligibility to participate in elections as a voter. It is an additional requirement to the contents of paragraph 1(1) of the 4th Schedule to the Constitution.

The power to make residency requirements is derived from the Constitution itself.

It is apparent that the concept of additional residential requirements is lawful and constitutional.

What has to be determined is whether the residency requirements under section 23 of the Electoral Act contravene section 67(3) of the Constitution in their extent.

In view of my determination that the import of constitutional provisions dealing with national elections (section 67(3) of the Constitution included) is to create a constituency-based electoral system, I do not find that the provision in any way violates section 67(3) of the Constitution.

As argued for the respondents, the provision is administrative in nature and serves to facilitate implementation of the constituency-based electoral process.

An 'appropriate roll' for the purposes of paragraph 1(2) of the 4th Schedule relates, therefore, to a roll of the constituency in which the voter actually resides.

Since the Constitution does not envisage constituencies beyond the borders of Zimbabwe, it follows that no voters roll can exist outside the 210 constituencies into which Zimbabwe is divided for voting purposes.

It should be noted that the residency requirement does not affect only the diaspora vote, since it also affects those who live in Zimbabwe. For example, a person who has ceased to live in Mount Pleasant for the relevant period will not be allowed to vote in Harare North elections notwithstanding that they still live in Zimbabwe, albeit in a different constituency, eg. Harare West. In this regard, the residency requirements are not directed only at the diaspora vote.

In any event, the applicant's case was premised on an interpretation of the constitutional provisions in question that allowed for the diaspora vote and made them eligible to vote. Their case is not based on a challenge to the constituency-based nature of our electoral system. Such a challenge can, in my view, only be mounted in the context of lobbying the Legislature to amend the Constitution so as to allow the diaspora vote. This is in fact what the respondents in casu urge the applicants to do. However, given that a determination contrary to their interpretation of the Constitution has been made, I find that the proverbial rug has, so to speak, been pulled from under the applicants' feet.

This point is accordingly decided against the applicants.

Whether section 72 of the Electoral Act violates section 56(1), (3) and (4) of the Constitution

The constituency-based nature of the electoral system is maintained in relation to the postal vote. Section 72 of the Electoral Act [Chapter 2:13] provides as follows:

“72 Persons who may vote by post

Where an election is to be held in a constituency, a person who is registered as a voter on the roll for that constituency shall be entitled to vote by post in terms of this Part, if, on all polling days in the election, he or she will be outside Zimbabwe —

(a) On duty as a member of a disciplined force or as an electoral officer; or

(b) On duty in the service of the Government; or

(c) As the spouse of a person referred to in para (b); and so unable to vote at a polling station in the constituency.
[Section substituted by Act 6 of 2014]."…,.

In terms of this provision, the starting point is an election due to be held in a given constituency.

Next, is the person who is registered on the voters' roll of that constituency.

Then follows the question of whether or not, on the day of voting, such voter is physically present not only in Zimbabwe, but within the constituency in order to cast his vote.

Only if he is absent from the country will he be able to cast his vote by post. However, such person's absence must be attributable to the call of duty in the service of the State or to being the spouse of such a person.

This, in my view, points to an attitude on the part of the Legislature that this type of person would be interested in the affairs of his constituency and would have voted but for his absence due to the State posting abroad. Accordingly, the person is deemed to be resident in his constituency for purposes of voting in the general elections.

Given the constituency based nature of the electoral system, as set out in the Constitution, there can be no doubt that this person would not be able to cast his vote by post if he is not registered on the voters' roll of his constituency.

The applicants do not assert that they are registered on the voters' roll of any constituency in Zimbabwe, a constitutionally mandated pre-requisite for casting the vote through the post, and indeed through any other means.

They allege a violation of their rights under section 56 of the Constitution, on the basis that section 72 of the Electoral Act bestows the privilege of voting outside the boundaries of Zimbabwe to a certain class of people, State employees, in a manner that excludes them from voting and is also 'highly discriminatory' against those based in the diaspora who are not State employees or their spouses.

The applicants allege this also violates their right to protection of the law.

Section 56 of the Constitution provides, in part:-

“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if —

(a) They are subjected, directly or indirectly, to a condition, restriction, or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.”

The right to equal protection of the law was discussed by ZIYAMBI JCC in Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1) ZLR 113 (CC) when the learned judge…, found:

“The right guaranteed under section 56(1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position.

It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.

In order to found his reliance on this provision, the applicant must show that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection: that is to say, that certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”…,.

The applicants have shown that there are other citizens, that is, State officials, who are allowed to use postal voting, which they are denied by law. What they have not shown is that they are in the same position as those State officials. In this respect, I find to be persuasive the following argument by the respondents, found in their heads of argument:

“…,. Section 72 applies to persons who are ordinarily resident in Zimbabwe and are registered voters who are actually on the voters' roll. They are however outside the country because their duties require that they be outside Zimbabwe on polling day (and) are permitted. in terms of section 72, to vote by post.

This is a class of people who have themselves not made a conscious decision to leave the country but do (sic) so on national duty. They are a different class of persons from applicants who have voluntarily left the country, are not ordinarily resident in Zimbabwe, are not registered, and have no constituency. The two are not in similar positions and cannot be compared.”…,.

As already determined, in terms of the Constitution, no person may vote without being registered on the voters roll of a constituency.

The applicants would be automatically excluded from voting if they are not so registered, and if they are not resident (or deemed to be so) in such constituency for the time periods specified in section 23 of the Electoral Act.

A person entitled to postal voting is deemed to be resident in the constituency for which he or she is enrolled as a voter; see Madzingo and Others v Minister of Justice and Others 2005 (1) ZLR 171 (S). This is in terms of section 23(2) of the Electoral Act. It is that deeming which entitles them to utilise postal voting. They are so deemed because, while they are on national assignments, their stay outside their constituency is regarded as temporary.

The situation is different as regards people who have left their constituencies on their own accord.

If they do not stay in their constituency, as is required by section 23 of the Electoral Act, they are taken to have left their constituency for a duration which is not temporary. They are not deemed resident in that constituency, and, for that reason, cannot vote in the constituency.

Once it is found, as I have done, that the residency requirements under section 23 of the Electoral Act are not unconstitutional in that they do not interfere with the constituency-based nature of our electoral system, it must follow that there is no obligation on the part of the Zimbabwe Electoral Commission to set up polling stations outside the country.

The same point has been stressed before, by this Court.

In Registrar General of Elections & Ors v Morgan Tsvangirai 2002 (1) ZLR (S) the court found that electoral authorities are not under a legal duty to provide machinery in foreign countries to record votes of Zimbabwean citizens registered as voters who live there and are unable to attend personally at polling stations in their constituencies on polling day. The exception was the category of persons specified under section 72 of the Electoral Act.

The applicants have not challenged the correctness of that judgment.

In Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17…, MALABA DCJ…, said, in part:

“The Constitution did not place an obligation upon the State to make arrangements for voters who, for personal reasons, were unable to attend at the polling stations to vote.”

I find that the applicants have not established, as correctly argued for the respondents, that they are in a similar position as the persons referred to in sections 72 and 73 of the Electoral Act.

They have not argued that they remain ordinarily resident in their constituencies in Zimbabwe.

As already determined, residency in a constituency located in Zimbabwe (actual or deemed) is a sine qua non for eligibility to vote in national elections.

It may be observed, in this respect, that residency requirements are not peculiar to Zimbabwe, as other jurisdictions have had occasion to address the same issue.

The Court of Appeal for Ontario (Canada) dealt with the rationale for and the constitutionality of residency requirements in the Canada Elections Act in Frank v Canada (Attorney General) 2015 ONCA 536. STRATHY CJO., with whom BROWN JA concurred, found, in part:

“…,. [5] Canada's political system is based on geographically defined electoral districts.

The citizens living in each residency elect a Member of Parliament to represent them. Their representative serves the interests of the community, speaks for the community, and participates in making laws that affect the daily activities of all residents of the community. The electorate submits to the laws because it has had a voice in making them. This is the social contract that gives the laws their legitimacy.

[6] Permitting all non-resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives. This would erode the social contract and undermine the legitimacy of the laws.

The legislation is aimed at strengthening Canada's system of government and is demonstrably justified in a free and democratic society.

While the impugned legislation violates s.3 of the Charter, it is saved by s.1.

Denying the right to vote to non-resident citizens whose absence exceeds five years is a reasonable limit on the Charter right…,.

[123] Residence is a determinant of voter eligibility in all provinces and territories, with most requiring a minimum period of residence.

The Saskatchewan Court of Appeal, the Yukon Territory Court of Appeal, and the Nunavut Court of Justice have found a rational connection between these residence requirements and the fairness and integrity of the electoral process: Storey v Zazelenchuk (1984), 1984 CanLII 2426 (SK CA), 36 Sask.R. 103 (C.A.); Anawak v Nunavut (Chief Electoral Officer), 2008 NUCJ 26 (CanLII), 172 A.C.W.S. (3d) 391; Re Yukon Election Residency Requirements (1986), 1 Y.R. 23 (C.A.)…,.”

It is not in dispute that the provisions challenged effectively hamstring citizens who are resident in the diaspora. Not only these, but also those who have ceased to reside in their registered constituencies but continue to live elsewhere in Zimbabwe.

There is no doubt, therefore, that the provisions effectively make voting for those resident in the diaspora, who are not State employees, harder.

Regardless, in interpreting the Constitution, the court must uphold the overall principles upon which the Constitution, in relevant parts, is founded.

The right to vote is not more important than the need to safeguard the legitimacy of elections in the case where only those who are relevant to a certain constituency are given the opportunity to vote in a particular election.

The electoral system is constituency based and the constitutionally-mandated residence requirement is the safeguard that is in place to ensure that the electoral system maintains this character. This objective is one that furthers compliance, and, therefore, resonates with the Constitution.

The contrary interpretation, favoured by the applicants, would, in my view, result in undermining the principle that Zimbabwean elections are constituency-based.

As already determined, this principle emerges from a consideration of the relevant provisions of the Constitution, as a whole, especially section 67, section 93, section 155, section 161 and the 4th Schedule.

Even if it were to be assumed that the applicants were in a similar situation with the State employees mentioned in section 72 of the Electoral Act, based solely on the fact that they are all Zimbabwean citizens over 18 years of age and resident abroad; it is evident that the Legislature chose to treat these two categories differently.

It has been held that this type of differentiation does not always amount to discrimination.

MALABA CJ, in Greatermans Stores (1979) (Private) Limited t/a Thomas Meikles Stores and Another v Minister of Public Service, Labour and Social Welfare and Another CC02-18 dealt with the difference between discrimination and differentiation in the following terms:

“In V.M. Syed Mohammad and Company (supra) a complaint was made to the effect that an impugned Act singled out for taxation purchasers of certain specified commodities only but left out purchasers of all other commodities.

In interpreting the right to equal protection of the law, the court stated as follows:

'It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question.

As pointed out by the majority of the Bench which decided Chiranjitlal Chowdhury's case ([1950] S.C.R. 869), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins.'”

The differentiation in this case is based on the fact that the categories of persons given a privilege in terms of section 72 of the Electoral Act are persons who have been posted to stations outside the country by the State to conduct State business.

The applicants are people who have left Zimbabwe of their own accord.

The rationale for the differentiation is that State servants cannot be disadvantaged on the basis of where they have been posted. They have been assigned by the State to take up positions at stations outside Zimbabwe in order to conduct the business of the State. The latter is accordingly under an obligation to ensure that they are not prejudiced of their right to vote.

The differentiation, in my view, meets the constitutionality test.

Accordingly, this point is determined against the applicants.

CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

The influence, if any, of International Conventions and Electoral LawsThe first applicant approached the African Commission on Human and Peoples' Rights in 2012 arguing that Zimbabwe was in violation of Articles 2, 3(1), (2), 9 and 13(1) of the African Charter on Human and Peoples' Rights for the reason that ...

The influence, if any, of International Conventions and Electoral Laws

The first applicant approached the African Commission on Human and Peoples' Rights in 2012 arguing that Zimbabwe was in violation of Articles 2, 3(1), (2), 9 and 13(1) of the African Charter on Human and Peoples' Rights for the reason that the erstwhile Constitution as read with section 72 of the Electoral Act restricted his right to vote.

The African Commission gave the following order:

1. That Zimbabwe allows Zimbabweans living abroad to vote in the referendum of 16 March 2013 and the general elections thereafter, whether or not they are in the service of the Government;

2. That Zimbabwe provides all eligible voters, including Gabriel Shumba, the same voting facilities it affords to Zimbabweans working abroad in the service of the Government; and

3. That Zimbabwe takes measure to give effect to its obligations under the African Charter in accordance with Article 1 of the African Charter, including in areas of free participation in Government.

Section 327(2) of the Constitution provides as follows:

“(2) An international treaty which has been concluded or executed by the President or under the President's authority —

(a) Does not bind Zimbabwe until it has been approved by Parliament; and

(b) Does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.”

The applicants argue that Zimbabwe is bound to implement the findings of the African Commission.

However, the country has not domesticated the African Charter on Human and Peoples' Rights in the manner outlined in section 327(2) of the Constitution. This section has to be read in light of section 46 of the Constitution which provides:-

“46 Interpretation of Chapter 4

(1) When interpreting this Chapter, a court, tribunal, forum or body —

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section 3;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law; in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.

(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”

(Although the African Chapter has not been incorporated into our law, through an Act of Parliament, many of its substantive provisions accord with the rights and freedom guaranteed in our Constitution. These, however, do not include any provision addressing the issue of the diaspora vote).

Zimbabwe is a dualist State as evidenced by sections 327(2) and 34 of the Constitution which exhorts the State to ensure incorporation into our domestic law of all international conventions and treaties to which Zimbabwe is a party.

The African Charter is not a self-executing treaty, and, as such, it has to be specifically incorporated into Zimbabwean law, that is, the Constitution of Zimbabwe.

This, I find, reinforces the respondents' argument that the solution to the applicants' problem in casu lies in them lobbying the Government to amend the Constitution, including domestication of relevant treaties and conventions, so that it allows the diaspora vote. The relevance of this course of action is highlighted in the case of Foster & Elam v Neilson 27 U.S. (2 Pet.) 253, (1829)…, where MARSHAL CJ had this to say:

“Our Constitution declares a treaty to be law of the land. It is, consequently, to be regarded in Courts of Justice as equivalent to an act of legislature, whenever it operates of itself, without the aid of any legislative provision. But, when the terms of the stipulation import a contract – when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule of law for the Court.”

The Constitutional Court remains guided by the wording of the Constitution, and has interpreted its provisions as expressly excluding the diaspora vote.

Amendments to the Constitution are the prerogative of the Legislature. In other words, the court does not dictate to the law maker what the content of the law should be. It can only declare what such content should not be.

The parties, in their heads of argument, made reference to the state of electoral laws in a number of countries.

It is evident that different countries impose different laws to regulate the right of their citizens, based locally or abroad, to vote in their general elections. While there are some countries that do not admit of, or even address, the diaspora vote in their law, (eg. Uganda, Zambia, Nigeria) there are many others that allow it, to differing degrees and on different pre-conditions (eg. South Africa, Germany, Mozambique, New Zealand and others).

What is clear, however, in respect of the international electoral systems cited, is the fact that the right to vote is regulated by law. Different countries have different methods employed to allow or not allow the diaspora vote depending on the provisions of their Constitutions.

The determination has already been made that Zimbabwean law does not provide for the diaspora vote. This should be a basis for agitating for the amendment of the Constitution at the request of any aggrieved party.

The fact that other countries have the diaspora vote provided for in terms of their laws would be an effective lobbying tool in that respect. Such laws, however, do not entitle this Court to interpret legislation in a manner that confers on the applicants a right which does not arise from the Constitution. The only benefit to this Court, of these laws, might lie in their persuasive effect in the interpretation of any similar or related law that may be passed by our Legislature to regulate the right of those based abroad to vote.

In the result, I find that the international treaty cited by the applicants, not having been appropriately incorporated into our domestic legislation, has no binding effect in the determination of the dispute in this matter.

I find, too, that the international electoral laws which the applicants have made reference to offer little, if any, assistance in the interpretation of the Constitutional provisions, as currently phrased, that pertain to our national elections.

DISPOSITION

When all is considered, and on the basis of the foregoing, I find that the application cannot succeed.

It is accordingly ordered as follows:

'The application be and is hereby dismissed with no order as to costs.'

CC12-17 : TAVENGWA BUKAIBENYU vs CHAIRMAN, ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL OF VOTERS and MINISTER OF CONSTITUTIONAL AND LEGAL AFFAIRS and MINISTER OF JUSTICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and CHIWESHE AJA

At the end of hearing argument for both parties, the Court dismissed this application with no order as to costs. It was indicated at the time that reasons for the decision would follow in due course. These are they.

The applicant approached the Court in terms of section 24(1) of the former Constitution of Zimbabwe (“the Constitution”) which gave any person alleging that the Declaration of Rights has been, is being, or is likely to be contravened in relation to himself, the right to apply to the Supreme Court for redress.

The applicant challenged the constitutional validity of sections 23(3) and 71 of the Electoral Act [Chapter 2:31] (“the Act”) as interfering with his right to vote as enshrined in section 23A(2) of the Constitution. More specifically, the applicant alleged that section 23(3) of the Electoral Act, which required that a voter be resident in a constituency in order to vote, and, that, if such voter was absent from the constituency for a period of over twelve months his or her name be removed from the voters roll, infringed his right to vote.

The applicant further contended that section 71 of the Electoral Act, limiting the right to postal voting to any person who, on all polling days in the election, would be outside Zimbabwe on duty in the service of the Government or as the spouse of such a person and would be unable to vote at a polling station in his or her constituency, violated his right to vote.

His contention was that every voter who is outside the country on polling days in an election must be afforded the opportunity to vote at a designated place in the country where he or she is at the time.

The applicant's personal circumstances made it evident why he had launched the application.

The applicant averred that he is a Zimbabwean by birth residing in South Africa. He said he was gainfully employed in that country. The applicant did not say when he went to South Africa and how long he had been living in that country. He did not disclose the nature of employment he was engaged in. He was, however, emphatic that he was unlikely to return to Zimbabwe in the foreseeable future, or, at least, until the economy recovered enough to guarantee him employment if he returned.

The applicant further alleged that he was a registered voter in the Mabvuku constituency. The extract from the voters roll he provided as proof of the averment, however, indicated that his residential address at the time of registration as a voter was in Kadoma.

At the hearing of the application, counsel for the applicant argued, that, the provisions of section 23(3) of the Electoral Act, by requiring that a voter be resident in his or her constituency and must not have been absent therefrom for more than a continuous period of twelve months in order to vote at a polling station in the constituency, imposed an unjustifiable limitation on the right to vote.

It was his submission, that, section 71 of the Electoral Act, by restricting the right to vote by postal ballot only to those who were outside the country on duty in the service of the Government or their spouses, infringed the applicant's right to vote.

Counsel for the applicant argued that section 23A(2) of the Constitution gave every Zimbabwean who was a registered voter the right to vote. As such, the State had an obligation to put in place mechanisms in every country where there are Zimbabwean citizens to enable them to cast the ballot in every election. It was his suggestion, that, every Zimbabwean embassy should be turned into a polling station on election day to allow Zimbabwean citizens in the diaspora to vote.

The respondents opposed the application.

The second respondent denied the allegation that sections 23(3) and 71 of the Electoral Act deprived a registered voter of the right to vote.

He pointed out that the purposes of the provisions of section 23(3) of the Electoral Act were administrative in that they related to the conduct of the election. They were not intended to limit the right to vote. In his view, the provisions gave effect to the right to vote by prescribing the way that right was to be exercised. He argued that nothing stopped a registered voter, who had voluntarily left the country, from coming back to exercise his or her right to vote at a polling station in the constituency in which he or she is registered to vote.

The fourth respondent argued, that, the State was not under any legal duty to establish polling stations outside Zimbabwe or to extend the postal ballot to Zimbabwean citizens who left the country of their own accord and were unable to attend personally to cast their ballots at polling stations in the constituencies in which they were registered to vote.

Section 23A of the Constitution provided:

“23A Political Rights

(1) Subject to the provisions of this Constitution, every Zimbabwean citizen shall have the right to -

(a) Free, fair, and regular elections for any legislative body, including a local authority, established under this Constitution or any Act of Parliament;

(b) Free, fair, and regular elections to the office of the President and to any other elective office;

(c) Free and fair referendums whenever they are called in terms of this Constitution or an Act of Parliament.

(2) Subject to this Constitution, every adult Zimbabwean citizen shall have the right -

(a) To vote in referendums and elections for any legislative body established under this Constitution and to do so in secret; and

(b) To stand for public office, and, if elected, to hold office.”

The above section could not be read in isolation. It had to be read together with section 3(1) of the Third Schedule to the Constitution which provided:

“Qualifications and disqualifications for voters

(1) Subject to the provisions of this paragraph and to such residence qualifications as may be prescribed in the Electoral Law for inclusion on the electoral roll of a particular constituency, any person who has attained the age of eighteen years and who –

(a) Is a citizen of Zimbabwe;…,. shall be qualified for registration as a voter.”

Reading the two sections together makes it obvious that the right to vote is not an absolute right that can be exercised without limitation.

The Constitution limited the exercise of the right to vote to a citizen who had attained the age of eighteen. Consistent with the provisions of section 3(1)(g) of the Third Schedule to the Constitution, the Legislature added the residence qualification as one of the conditions of the exercise of the right to vote. It required that the prospective voter be registered on the roll of voters for the constituency in which he or she ordinarily resided.

There can be no doubt that the provisions of section 23(3)(g) of the Electoral Act were authorised under section 3(1)(g) of the Third Schedule of the Constitution.

Section 23 of the Electoral Act provided:

“23 Residence qualifications of voters

(1) Subject to the Constitution and this Act, in order to have the requisite residence qualifications to be registered as a voter in a particular constituency, a claimant must be resident in that constituency at the date of his or her claim:

Provided, that, if a claimant satisfies the Registrar-General of Voters that he or she is or intends to be a candidate for election as a member of Parliament for a particular constituency in which he or she is not resident, the claimant may be registered as a voter in that constituency.

(2) For the purposes of subsection (1), a claimant shall be deemed to be residing in a constituency while he or she is absent therefrom for a temporary purpose.

(3) A voter who is registered on the voters roll for a constituency, other than a voter who has been registered in that constituency in terms of the proviso to subsection (1), shall not be entitled to have his or her name retained on such roll if, for a continuous period of twelve months, he or she has ceased to reside in that constituency….,.”…,.

Section 71 of the Electoral Act also provided:

“71 Applications for postal ballot papers

(1) When an election is to take place in a constituency, a voter ordinarily resident in Zimbabwe who is resident in that constituency, or was, within twelve months preceding the polling day or first polling day, as the case may be, fixed in relation to that constituency, resident therein and has good reason to believe that he or she will be absent from the constituency or unable to attend at the polling station by reason of being:

(a) On duty as a member of a disciplined force or as an electoral officer or monitor; or

(b) Absent from Zimbabwe in the service of the Government of Zimbabwe; or

(c) A spouse of a person referred to in paragraph (a) or (b); may apply to the Chief Elections Officer for a postal ballot paper.”

The two sections are clear and unambiguous.

Section 23(3) of the Electoral Act required that a voter be ordinarily resident in the constituency in which he or she was to vote for purposes of being qualified for registration on the voters roll for that constituency. If the voter became absent from the constituency in which he or she was registered as a voter for a continuous period of twelve months, his or her name had to be removed from the voters roll of that constituency as he or she would be deemed to have ceased being a resident of that constituency.

The postal ballot was reserved for a specific class of registered voters who, because they would be on duty in the service of the Government, would be forced to be absent from their constituencies on the polling days in the election.

The class of registered voters with the right of access to the use of the postal ballot was clearly defined.

The definition was exclusive of any other registered voter not belonging to that class. The applicant and other registered voters who would have been outside the country on polling days in the election and unable to attend personally to cast their votes at the polling stations in the constituencies where they were registered as voters are excluded because they did not satisfy the prescribed criteria for the members of the class entitled to the use of the postal ballot.

There could be no serious argument that the Legislature acted unlawfully in enacting the two sections, when the Constitution specifically vested it with the power to impose residence qualifications on voters and thus limit the exercise of the right to vote. The Legislature clearly had the power to prescribe conditions for the exercise of the right to vote.

In support of the contention that the restriction of the right to the use of the postal ballot to the specific class of registered voters specified in section 71 of the Electoral Act was an unjustifiable limitation of the right to vote, the applicant referred to the case of Richter v The Minister of Home Affairs and Others (with the Democratic Alliance and Others Intervening and with Afriforum and Another as Amici Curiae) [2009] ZACC 3.

In that case, the Constitutional Court of South Africa held that section 33(1)(e) of the South African Electoral Act constituted an unjustifiable limitation of the right to vote by restricting classes of registered voters who were absent from the Republic on election day who were afforded the opportunity to participate in the election. In that case, the Constitutional Court of South Africa held that such a limitation infringed the right to vote.

The applicant argued, on the authority of Richter v The Minister of Home Affairs and Others (with the Democratic Alliance and Others Intervening and with Afriforum and Another as Amici Curiae) [2009] ZACC 3, that, the right to vote is a democratic right and no law limiting the right could be justifiable in a democratic society. He urged the Court to hold that every registered voter was entitled to exercise the right to vote where he or she was and the State had to ensure that facilities were made available to record his or her vote.

The Court was not persuaded by the argument.

Richter v The Minister of Home Affairs and Others (with the Democratic Alliance and Others Intervening and with Afriforum and Another as Amici Curiae) [2009] ZACC 3 could not be applied to the applicant's case.

Zimbabwe and South Africa have different electoral systems.

The South African electoral system is based on the concept of proportional representation. This means that voters vote for a political party - not individuals. The political party then gets a share of seats in Parliament in direct proportion to the number of votes it got in the election. Each party then decides on members who fill the seats it won. As such, no matter where the voter casts his or her vote from, he or she would not be voting for an individual to represent him or her as a resident of a constituency.

The Zimbabwean electoral system is different. It is based on the concept of constituency representation.

Section 38 of the Constitution provided that there shall be 210 members of the House of Assembly, each elected by and representing 210 constituencies. Registered voters vote for individual candidates, even though they may belong to political parties that sponsor them. Any person who is qualified to stand for elected office can offer himself or herself for election in the capacity of an independent candidate and be voted for as such.

Under the Zimbabwean electoral system, a voter votes not only as a citizen of this country but also to protect his or her rights and interests as a resident of the constituency in which he or she is registered. He or she votes for a candidate best suited to address the developmental problems of the constituency.

The constituency-based electoral system requires that a candidate should campaign in the constituency for which he or she seeks to be elected. If a voter is not resident in the constituency, and has not been so resident for a continuous period of twelve months, the presumption is that he or she has lost touch with the constituency and has insufficient information about the candidate's ability to address the developmental problems of the constituency.

A distinction must be drawn between a situation where there is no right to vote and one where the right to vote is provided for under the law but a voter chooses not to exercise the right.

In Registrar General of Elections & Ors v Morgan Tsvangirai SC 2002 (1) ZLR (S) 204, CHIDYAUSIKU CJ, in a case in which the applicants alleged that failure by the State to put in place mechanisms to enable voters outside their constituencies to vote violated their right to vote, said…,:

“The contention that the failure to provide the above facility amounts to the disenfranchisement of a voter is simply untenable. The voter does not lose his right to vote. He is disabled from exercising the right by being in a wrong constituency at the time he is expected to vote. The disability would not, in the circumstances, have resulted from any action by the Registrar General.”

The Constitution did not place an obligation upon the State to make arrangements for voters who, for personal reasons, were unable to attend at the polling stations to vote.

In Madzingo and Others v Minister of Justice and Others 2005 (1) ZLR 171 (S)…, it was said that:

“It is important to appreciate the fact, that, there is no express provision in the Constitution and the Act requiring electoral authorities to establish machinery in foreign countries to record votes of Zimbabwean citizens registered as voters on voters rolls for constituencies who live in those countries. The provisions that are there require a registered voter to attend, personally, on polling day, to cast his or her ballot at a polling station in the constituency for which he or she is enrolled. The requirement applies to every registered voter and its object is to give effect to the entitlement to vote provided under section 3 of Schedule 3 of the Constitution. The only exception to this general rule is created in section 71 of the Act.”

It was for these reasons that the Court was satisfied that sections 23(3) and 71 of the Electoral Act did not violate the applicant's right to vote, and, consequently, dismissed the application with no order as to costs.

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...

MAKARAU AJCC:

Introduction

On 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.

The two applications, filed separately, and on different dates, were brought in terms of section 167(2)(d) of the Constitution as read with Rule 27 of the Constitutional Court Rules 2016, alleging, that, the second applicant had failed to fulfil the obligation to pass Constitutional Bill (No.1) of 2017 in accordance with the Constitution.

The first application was filed in September 2017, before Constitutional Amendment Bill (No.1) of 2017 was presented to the President for assent, whilst the second application was filed in December 2017, after the Bill had been assented to and had been gazetted as an Act of Parliament.

In view of the fact, that, the allegations made in the two applications were the same and raised the same issues for determination, the applications were consolidated and heard as one.

No import was attached to the different legislative stages through which the amendment Bill passed as the singular order that was issued by the Constitutional Court, under judgment number CC04-20, in respect of both applications, reads:

“(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside, for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017, in para 1(a), shall become final.

2. The applicant's allegations, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicant's allegation, that, a two thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

The one hundred and eighty days stipulated in paragraph (b) of the order commenced to run on 1 April 2020 and expired on or about 28 September 2020.

The directive in that order was not complied with for reasons that are set out in the applicants founding affidavit.

On 25 September 2020, upon realising that the one hundred and eighty days would expire shortly thereafter, the applicants filed an urgent ex parte chamber application in this Court, securing, on 28 September 2020, a provisional order extending the period and concomitantly further suspending the coming into effect of the order of invalidity of the amendment to a date following the determination of this application.

On 6 October 2020, the provisional order was confirmed with the consent of the parties.

Simultaneously with the urgent ex parte application referred to above, the applicants filed this application, seeking an order for the extension of the 180 days within which the second applicant had to comply with the directive of the court.

The draft order did not seek an extension of the suspension of the order of invalidity of Constitutional Amendment Bill (No.1) of 2017.

The application was set down before us for determination....,.

The Application

In the founding affidavit, the applicants made one material averment.

They averred, that, the judgment of the court, number CC04-20, was handed down one day before a national lockdown was imposed in response to the threat of and to contain the spread of the corona virus.

They further averred, that, the Regulations that were enacted to enforce the lock-down, initially, banned the sittings of the Senate totally as the second respondent was not classified as an essential service provider. It was barred from convening at all for any business.

Later, the Regulations were relaxed to allow the second applicant to convene for business, but, restricted the number who could lawfully attend any one sitting to less than 50 Senators, a number below the requisite quorum for the passing of a Constitutional Amendment Bill.

As a result, the applicants averred, that, the Senate could not sit to comply with the directive of the court within the period stipulated in the order.

Only the first respondent opposed the application.

On 20 October 2020, counsel for the third and fourth respondents wrote to the Registrar of this Court advising that he did not file opposing papers for the third and fourth respondents as they did not intend to oppose the order sought by the applicants.

The letter was a courtesy to the Court.

In addition to opposing the application on its merits, the first respondent raised two preliminary issues:

(i) It was contended, firstly, that, the applicants had no locus standi to procure the relief sought.

It was argued, both in the opposing affidavit and in the oral submissions by counsel, that, the passage of Constitutional Bills in the Senate is, in accordance with the principles of the separation of powers among the three arms of State, the prerogative of the Executive, which is given the function to prepare, initiate, and to implement national legislation by section 110 of the Constitution.

The argument proceeded to urge us to hold, that, the applicants, representing the Legislative organ of State, could not procure the relief sought as they lacked the mandate to initiate national legislation.

(ii) Secondly, it was argued, again in limine, that, the order sought in this application is unconstitutional, as it will offend against the provisions of section 147 of the Constitution.

Section 147 of the Constitution provides, that, upon the dissolution of Parliament, all proceedings pending at the time of dissolution are terminated and every Bill, motion, petition or other business lapses.

It was thus pressed upon us, that, Constitutional Amendment Bill (No.1) of 2017 lapsed when the 8th Parliament was dissolved to make way for the general elections of 2018.

The argument concluded by urging us to find, that, the Bill cannot be legitimately voted into an Act of Parliament by the 9th Parliament which is currently in session.

Regarding the merits of the application, the first respondent argued, that, the Senate had more than twenty sittings between the date of the judgment and the expiry of the stipulated one hundred and eighty days and could have, had it so desired, complied with the order of the Court during any one of these sittings.

The dates of such sittings, and the number of Senators in attendance at each sitting, were given.

It was thus argued, that, the restrictions imposed by the lock down regulations on the business of the Senate were but an excuse for the indifference of the Senate to the court order.

The Issues

The issues that arise for determination in this application are clear cut. Two arise in limine. These are:

(i) Firstly, whether the applicants have locus standi to bring this application; and

(ii) Secondly, whether the order of extension sought in this application is unconstitutional.

On the merits, there is only one issue. This is whether the applicants have made out a case for the extension of paragraph (b) of the order.

I now turn to discuss the issues in seriatim....,.

Whether the Applicants have made out a case for the extension of time within which the Senate is to vote Constitutional Amendment Bill (No.1) in accordance with the Constitution

The applicants case is simple. It is based on facts that are largely common cause.

The order of this Court was handed down on 31 March 2020. A national lockdown, in response to the coronavirus pandemic took effect on 1 April 2020. The Senate commenced sitting on 5 May 2020, after the second applicant was declared to be an essential service. The Regulations in force then did not allow gatherings of more than 50 persons.

On the basis of these facts, the applicants seek for more time within which to comply with the directive.

An application for time within which to comply with an order of court is akin to an application for extension of time within which to comply with a rule of court.

The factors that a court takes into consideration are well known. They include the length of the delay and the reasonableness of the explanation for the delay.

The argument by the first respondent, that the Senate did meet with the requisite quorum on a number of days, loses sight of the fact, that, the relevant Regulations did not permit such meetings, and, any business transacted at such meetings risked being challenged as being in violation of the law.

This court cannot recognise that Parliament could have met in violation of the law.

In my view, the delay by the applicants was not inordinate and the explanation for the delay is reasonable.

The extension must be granted.

Regarding costs, there appears to be no justification for departing from the general rule against making an order of costs in constitutional matters. None has been pressed upon us by the applicants.

Disposition

In view of the delay that has already ensued in deciding the fate of Constitutional Amendment Bill No.1 of 2017, it is not desirable that the uncertainty in the supreme law remains for much longer. A period of ninety days will be sufficient to enable the second applicant to put its house in order regarding the proper constitutional procedures to adopt in the circumstances of this matter.

Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in paragraph (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs....,.

GOWORA AJCC:

I have perused the judgment of my learned sister MAKARAU AJCC. I do not intend to set out the facts pertaining to the application before the court as she has set those facts out succinctly.

I am constrained to disagree with my learned sister judge on certain aspects of the application and the conclusions she has reached in respect of the same.

I agree with her conclusions as to the jurisdiction of the court as constituted to hear the matter. In my view, her conclusions, as to the jurisdiction of the court as constituted, is in accordance with the provisions of section 166 of the Constitution.

I turn to the substance of the matter.

The first respondent raised two points in limine:

(i) The first being, that, the applicants herein lack the requisite the locus standi to bring the application.

(ii) The second point in limine raised was to the effect, that, the application is itself unconstitutional.

MAKARAU AJCC found, that, the applicants do in fact have the necessary locus standi to bring the application and I have no further comments to make on that issue.

As to the second point, my learned sister dismissed the challenge to the constitutionality of the application and went on to find, that, the applicants had made out a case for the grant of the application.

It is the finding of the constitutionality of the application, and the consequential grant of the order sought, that I respectfully disagree with.

In my respectful view, the application is unconstitutional, as argued, and the grant of the application consequent thereto cannot be sustained.

My reasons for dissenting with my learned sister are the following.

It is not in dispute, that, on 31 March 2020, the Constitutional Court, sitting as a full Bench, declared that the passing of Constitutional Amendment Bill No.1 of 2017, by the Senate, on 1 August 2017, was inconsistent with the provisions of the Constitution.

The proceedings by the Senate, of the day in question, were set aside.

The Senate was directed to conduct a vote in accordance with the procedure for amending the Constitution within one hundred and eighty days from the date of the order.

This was not done; which is the reason for the application to court for an extension of time to conduct the vote….,.

In my view, the order of 31 March 2020 is not an issue for determination before the court. What is critical is the effect that section 147 of the Constitution has on the application before us.

In its judgment of 21 March 2020, the full Bench found, as a fact, that, Amendment Bill Number 1 had not been passed in accordance with the requirements of the Constitution. The required number of votes to pass the Bill were short resulting in the Bill failing to pass the test. As a result, the Bill did not become law.

The first respondent has raised, as a point in limine, the application of section 147 of the Constitution to this application.

He contended, that, as the Bill never became law, in essence, it must be considered as a pending Bill under section 147 of the Constitution.

On a proper construction of the section, once it is accepted, that, it was pending; did not pass into law; it therefore stands to reason, so the argument goes, that, the Bill must have lapsed when Parliament was dissolved in July 2018.

It is common cause, that, Parliament was dissolved in July 2018 to make way for general elections which took place on 31 July 2018.

Section 147 of the Constitution, which the first respondent relies on the argument that the order sought is unconstitutional, reads as follows:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

As a result of the declaration of invalidity by this Court, Constitutional Amendment Bill No.1 never became law. By parity of reasoning, it would then revert to a Bill pending before the Senate for the conduct of a proper vote as directed by this court.

It was inevitably affected by the dissolution of Parliament in that it automatically lapsed.

I am not dwelling on when the order was granted. It was invalid by process of law from not having been passed in accordance with the Constitution. Thus, there is no Bill to debate and vote on. The Senate would have to commence the process afresh following the setting aside of the proceedings by which the invalid votes were garnered.

Section 147 of the Constitution must be given effect to.

There is no Bill left to debate. Any attempt by the Senate to debate and vote a Bill that has lapsed, by operation of law, is in violation of the Constitution itself. The Constitution protects itself.

Section 2 of the Constitution tells us so in clear and unequivocal terms. It provides:

“2 Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

On a proper construction of the above section, if Senate is availed the opportunity to sit, debate, and vote on a Bill that is no longer in existence would be to violate the Constitution itself.

A vote on a Bill that has been declared, by section 147 of the Constitution, as having lapsed by virtue of the dissolution of Parliament, would, in my view, be inconsistent with section 147 of the Constitution.

I wish to quote, with respect, the view expressed by PATEL JA in Judicial Services Commission v Zibani & Ors SC68-17 to the following effect:

“Supremacy of the Constitution

It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications and obligations are codified in section 2 of the Constitution as follows:

'(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.'

Section 3 of the Constitution enshrines the founding values and principles of Zimbabwe. In its relevant parts it provides that:

'(1) Zimbabwe is founded on respect for the following values and principles —

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…;

(f)…;

(g)…;

(h) Good governance; and

(i)….;

(2) The principles of good governance, which bind the State and all institutions and agencies of government, at every level, include —

(a)…;

(b)…;

(c)…;

(d)…;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…;

(i)…;

(j)…;

(k)…; and

(l)….'

By virtue of the foregoing principles, the Constitution demands strict compliance with its substantive provisions and all laws enacted under its aegis. It also demands meticulous adherence to the procedures and processes prescribed under the Constitution. These principles bind everyone, including the appellant, which, as an executive institution, is expressly bound to comply with the substantive and procedural requirements of the Constitution.”

When one has regard to the comments of PATEL JA above, it becomes obvious, that, the Constitution demands strict compliance with all its provisions and one such provision is section 147.

It impacts on procedures in Parliament.

Where processes demanded of Parliament are found not to be in strict adherence with the requirements of the Constitution, then, those processes must be adjudged as having been inconsistent with the Constitution.

CURRIE & De WAAL, The Bill of Rights Handbook 6ed…, in discussing section 2 of the South African Constitution, an exact replica of section 2 of our own Constitution, make the observation that:

“The first principle, constitutional supremacy, dictates, that, the rules and principles of the Constitution are binding on all branches of the State and have priority over any other rules made by government, the legislature, or the courts. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of Constitutional supremacy. It states, that, the 'Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.'”

The process by which the Senate passed Amendment Bill No.1 of 2017 was found, by the Court, as having been in violation of the strict requirements of the Constitution.

In this instance, to order the Senate to conduct “a vote on Bill No.1 of 2017” would be to order, as a court, the doing of conduct which the Constitution itself has proscribed as being inconsistent with its own provisions.

In effect, it would be a negation of the principle of constitutional supremacy.

There is no Bill to debate or conduct a vote on.

Section 2(2) of the Constitution requires that all persons, including judicial institutions, observe and abide by the obligations set out in the Constitution.

Therefore, to the extent, that, the court would be inclined to grant an order extending the time frame in which the Senate is given leave to debate a Bill that is no longer in existence by virtue of section 147 of the Constitution would be to give effect to an order that is inconsistent with section 147 of the Constitution.

This, in my view, is impermissible.

Turning to the issue of the finality of orders of the court, I would not disagree with my learned sister on her conclusions.

The orders of the court are final.

However, in this instance, the order of 31 March 2020, by this court, is not an issue for debate. Neither party sought to depart from the order. The applicants approached the court seeking an indulgence for the due performance by them of certain directions emanating from the order in question.

The contention, on the part of the first respondent, as I understand it, is that the direction can no longer be given effect to by virtue of the lapse of the Bill by operation of law. The order is not being interfered with in any manner. It is extant. The time-frame within which the applicants could have availed themselves of the lifeline given to them under the order having elapsed, and the Bill itself having lapsed, the direction cannot be given effect to.

This application cannot resuscitate something that has expired.

The first respondent has not touched on the order itself. All that has been argued is that the indulgence sought can no longer be granted due to the provisions of section 147 of the Constitution. Therefore, the contention made is that the grant of the indulgence is itself inconsistent with the Constitution.

I must agree with the first respondent.

The order of invalidity, as regards the Bill cannot be ignored. This is the first premise in the consideration of the application. It was adjudged as being invalid. That said, the Bill cannot be resuscitated through this application. It lapsed by operation of law. The grant of the application, in these circumstances, would be inconsistent with the Constitution. A refusal to grant the application has no impact on the order of 31 March 2020.

For the above reasons, it is my view, that, the application should be dismissed with no order as to costs....,.

PATEL AJCC:

I have read and carefully considered the lead judgment and dissenting opinion of my learned sisters, MAKARAU AJCC and GOWORA AJCC, respectively.

I find myself in the invidious position of having to agree with both, substantially in respect of the former, and partially as regards the latter.

The critical issue in contention concerns the second point in limine taken by the first respondent, to the effect, that, the order sought in this application is unconstitutional as it will offend the provisions of section 147 of the Constitution.

Section 147 of the Constitution stipulates that:

“On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”

In dismissing the second point in limine, MAKARAU AJCC concludes that “the constitutionality of the order sought in this application does not arise for determination in this matter, as, any such determination will entail revisiting and reviewing the earlier decision of this Court made in the same matter.”

On the other hand, GOWORA AJCC takes the position, that, the Constitution Amendment Bill (No.1) of 2017 “was inevitably affected by the dissolution of Parliament, in that, it automatically lapsed” and that “there is no Bill to debate and vote on.”

The learned judge accordingly concludes that “the Bill cannot be resuscitated through this application. It lapsed by operation of law. The grant of the application, in these circumstances, would be inconsistent with the Constitution.”

I cannot but agree with GOWORA AJCC, that, the supremacy of the Constitution, as enshrined in section 2 of the Constitution, dictates that any law, practice, custom, or conduct that is inconsistent with the supreme law is invalid to the extent of the inconsistency.

The ineluctable consequence of this principle, is that, anything done by Parliament that is contrary to the provisions of the Constitution, including section 147 of the Constitution, would be invalid and unconstitutional to the extent of such inconsistency.

Nonetheless, in the particular circumstances of this matter, despite the clear substantive implications of section 2 of the Constitution, I am inclined to concur with the predominantly procedural stance adopted by MAKARAU AJCC in the determination of this application.

I do so for the following reasons, and in accordance with the principles that she has fully and ably expounded.

It must be emphasised, that, the order granted by this Court, on 31 March 2020, is nothing less than a final order. As such, it may only be reviewed or overruled by this Court in a separate and distinct matter that might arise for determination in the future, where such departure is appropriate and justified.

It cannot be departed from in the same matter, as is the case with the application before us, wherein the original cause of action has remained unaltered.

In my view, the same considerations must also apply to any extension of the original order, founded on the same cause of action and granting essentially the same relief.

It follows, that, the constitutionality of the order sought by the applicants in casu cannot be challenged or debated in this particular application. It also follows, that, there is nothing to preclude the grant of the indulgence and relief sought by the applicants - which relief is apparently unassailable on the merits.

Having taken the position that I have, I am nevertheless constrained to caution, that, their success in this application does not constitute any licence for the applicants to violate the requirements of the Constitution or to disregard any of its provisions.

This point was aptly underscored in the case of Nkomo & Ors v T M Supermarkets (Private) Limited CC04-19, where this Court held, that, anything done in contravention of the Constitution is a nullity.

Therefore, any act or conduct by the applicants, in direct violation of the Constitution, will remain a nullity - even if carried out purportedly in compliance with the order of this Court.

Consequently, in the event that they decide to proceed with the Constitution Amendment Bill (No.1), they would be obligated to do so, not only in accordance with the voting requirements prescribed in section 328 of the Constitution, but, also in conformity with any other relevant and applicable constitutional injunction - including the legal ramifications of section 147 of the Constitution.

Finally, although this aspect is not directly pertinent in casu, I should point out, for the sake of completeness, that, certain provisions in the Constitution Amendment Bill (No.2) of 2019, relating to judicial appointments, under section 180 of the Constitution, are predicated on the provisions of the earlier Constitution Amendment Bill (No.1) having been duly enacted in their present form.

This is an aspect that the applicants would need to consider and take into account in proceeding with either or both of the Bills concerned.

To conclude, I would, for the aforestated reasons, grant the present application in accordance with the order made by MAKARAU AJCC as set out above.

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

FACTUAL BACKGROUND

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

APPLICANT'S SUBMISSIONS

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

RESPONDENTS CASE BEFORE THIS COURT

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

AMICUS CURIAE'S SUBMISSIONS

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

ISSUE ARISING FOR DETERMINATION

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

WHETHER THE CONSTITUTIONAL AMENDMENT BILL (NO. 1) 2017 HAD BECOME AN ACT OF PARLIAMENT WHEN PARLIAMENT WAS DISSOLVED

The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:

(i) Parliament must have been dissolved.

(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.

(iii) The proceedings must have been pending at the time of dissolution.

(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.

The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.

Turning to the necessary facts which trigger the application of section 147 of the Constitution.

All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.

That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).

The applicant accepts this fact.

The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.

In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.

Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.

It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.

That order obviously does bear upon the status of the Bill at the time Parliament was dissolved.

Therefore, one must look at the terms of the order in CC04-20 to find out whether that order had the effect of returning the Bill to its status quo ante rendering it susceptible to the provisions of section 147 of the Constitution.

THE IMPORT OF THE ORDER IN CC04-20

Until the passage of the order in CC04-20, no person could have disregarded Constitution of Zimbabwe Amendment (No.1) of 2017. That Act, as already stated, was presumed to be constitutional and valid.

Pertinently, after declaring the passage of Constitutional Amendment Bill (No.1) of 2017 to have been inconsistent with section 328(5) of the Constitution, this Court went further to set out the point at which the declaration of invalidity would take effect:

“The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”

The above excerpt from the order in CC04-20 entertains one interpretation only.

The invalidity of the Constitution of Zimbabwe Amendment (No.1) Act took effect from the date of the order – 31 March 2020.

Thus, despite the subsequent declaration of invalidity, the Bill was not susceptible to the effect of section 147 of the Constitution, on 29 July 2018, because it was an Act at that date. Its invalidity takes effect in accordance with the order of this Court above.

However, the constitutionality of the above order is, in fact, what the applicant is challenging.

But, that order was made in terms of a provision of our Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.

By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.

This is known as the blue pencil rule.

The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.

The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.

So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

As already noted, the section does give the Court discretion, where it is just and equitable, to suspend a declaration of invalidity, conditionally or unconditionally, for any period to allow the competent authority to correct the defect.

The corrective or remedial power exercised by the Court is not incompatible with the object of section 147 of the Constitution nor any other provision of the Constitution at large. It permits this Court to curtail the retrospective effect of an order of invalidity as it did in CC04-20.

An order made in terms of section 175(6)(b) of the Constitution is, by the Constitution's own architecture, constitutional — provided that it is just and equitable.

The formative opinion on the utility of section 175(6)(b) of the Constitution was set out in M & Anor v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) ZLR 45 (CC); CC12-15…,.

This Court held, that, an exercise of the power bestowed by section 175(6)(b) of the Constitution is done with the appreciation of “the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid.”

I note, that, the purpose of section 175(6)(b) of our Constitution is remarkably similar to section 172(1)(b) of the South African Constitution, even though the two provisions are not worded in the exactly the same manner. The South African equivalent reads as follows:

“Powers of courts in constitutional matters

172(1) When deciding a constitutional matter within its power, a court —

(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) May make any order that is just and equitable, including —

(i) An order limiting the retrospective effect of the declaration of invalidity; and

(ii) An order suspending the declaration of invalidity for any period, and on any conditions, to allow the competent authority to correct the defect.”

In this light, MADLANGA J, writing for the majority in the South African case of Corruption Watch NPC & Ors v President of the Republic of South Africa & Ors [2018] ZACC 23…, concluded:

“There is no pre-ordained consequence that must flow from our declarations of constitutional invalidity. In terms of section 172(1)(b) of the Constitution, we may make any order that is just and equitable. The operative word 'any' is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity. This Court has laid down certain principles in charting the path on the exercise of discretion to determine a just and equitable remedy.”

Dealing with the effect of Article 25(1)(a) of the Namibian Constitution, which is the equivalent of our section 175(6)(b), DAMASEB DCJ, in CRAN v Telecom Namibia Ltd & Ors NASC 18/2018 concluded, that, the Article in question:

“…, empowers the court to suspend the order of invalidity to afford the legislature the opportunity to correct the defect identified by the court. During the period of suspension, the implicated provision continues to have the full force of the law.”

Given the wide jurisdiction that the Court has in making orders in terms of section 175(6)(b) of the Constitution, it has invoked its power in several instances other than in CC04-20.

For instance, in Democratic Assembly for Restoration and Empowerment & Ors v Saunyama & Ors CC09-18…, the Court suspended the order of invalidity of a law to enable the competent authorities to attend to the defects, while in Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CC01-19, the Court suspended, conditionally, its order declaring the engagement of members of security services in the National Prosecuting Authority as unconstitutional to avoid paralysing its operations.

The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution.

When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming.

Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.

Thus, section 175(6) of the Constitution is inserted into our Constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.

The Canadian case of Re Manitoba Language Rights 1985 CanLII 33 (SCC); [1985] 1 SCR 721 exemplifies the far-reaching effects that orders of invalidity carry.

The brief facts of that case are that the Governor in Council referred questions to the Supreme Court of Canada relating to language rights under the Manitoba Act 1870 and the Constitutional Act 1867. The two Acts provided, that, the use of both the English and French languages in the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba was mandatory.

The Supreme Court of Canada found, that, statutes that were not printed and published in both the English and French languages were invalid by reason of section 23 of the Manitoba Act 1870. The result of the finding of invalidity was that statutes that were enacted in close to a century prior to the declaration were invalid. Consequently, the Court deemed them temporarily valid.

Relying on the de facto doctrine, being a doctrine of necessity, the Court held…, as follows:

“The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws.

It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.

Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.”

Therefore, in light of the above authorities, and, upon examination on the powers of this Court in terms of section 175(6) of the Constitution, I am both compelled and bound to restate, without saying anything further, that, the order in CC04-20 was validly passed as it accords with justice and equity.

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Law Portal
Zimbabwe

Voting Systems

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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Law Portal Zimbabwe

Voting Systems

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

View Appeal HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO Ruled By: PATEL J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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Law Portal
Zimbabwe

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC