ZIYAMBI JA:
At the end of the hearing of
this matter the following order was issued:
“IT IS ORDERED THAT:
1st Applicant takes all
the necessary steps to ensure that its officers and officers under the command
of the 1st, 2nd, and 3rd Respondents,
authorised to cast ballots in terms of section 81 of the Electoral Act [Cap
2:13] who failed to cast their ballots on the 14th and 15th
of July 2013 because of the unavailability of ballot papers, be and are hereby
allowed to cast their ballots on the 31st of July 2013.”
Below are set out the reasons for
this order.
FACTUAL
BACKGROUND
On 13 July 2013, the President of
Zimbabwe who is the ninth respondent herein issued a proclamation, in terms of
s 58 of the Constitution of Zimbabwe, setting the polling date for the 2013
general elections as 31 July 2013. In terms of the proclamation, SI
86/2013, the first applicant was enjoined to set aside two (2) days for the
holding of the special voting process provided for in Part X1VA of the
Electoral Act [Chapter 2:18] (“the Act”), the last of which must be at least
sixteen (16) days before the date set for the holding of the general elections
namely, 31 July 2013.
In compliance with the proclamation,
the first applicant duly set 14 and 15 July 2013 as the days for the special
voting exercise and invited the disciplined forces as well as officers of the
first applicant to apply to cast a special vote. A total of 63 268
successful applicants were authorised to cast a special vote. However,
due to certain logistical constraints, the first applicant was unable to post
the requisite ballot paper to each successful special voter within the time
frame fixed for the special vote with the result that 26 160 applicants
(representing 41.3% of the successful applicants for the special vote) were
unable to cast their special votes.
The applicants averred that,
conscious of their duty inter alia, to conduct elections efficiently,
freely, fairly, transparently and in accordance with the law, they then
issued a press statement advising that those who had not been able to
cast their special votes would be able to vote in the general elections on 31
July 2013.
The press statement sparked two
complaints. The first was from the Secretary General of the fourth respondent,
the Movement for Democratic Change– T (“the MDC-T”). He wrote to the
second applicant advising that the proposed action would be illegal in that
s 81B (2) of the Act disentitles a successful applicant for a special vote
from voting in any other manner than by casting a special vote.
The next complaint was from
the first respondent, the Commissioner of the Zimbabwe Republic Police. His
concern was in respect of members of the police force who were successful
applicants for special votes and who had been denied the opportunity to cast
their special votes on the days set aside for special voting. His letter read
in relevant part:
“The Constitution in section 239(g)
places an obligation on Zimbabwe Electoral Commission (ZEC) to design, print
and distribute ballot papers, approve the form of and procure ballot boxes and
establish and operate polling stations. Quite clearly therefore the failure by
the State to put in place the necessary measures as envisaged by sections
155(2)(b) and 239(g) of the Constitution can be deemed an impingement of the
right to universal suffrage.
I, on behalf of the officers and
members who could not cast their vote, therefore seek in terms of section
239(k) of the Constitution recourse with ZEC. Section 239(k) of the
Constitution empowers individuals who have failed to cast their vote on dates
specified in line with the Act to seek recourse with ZEC.
On the other hand section 81B(2) of
the Electoral Act provides that a voter who has been authorised to cast a
special vote shall not be entitled to vote in any other manner than casting a
special vote in line with the provisions of the Act. It is trite law that where
there is apparent conflict between the Constitution and Ordinary law, the
Constitution takes precedence because the Constitution is the grundnorm or
master rule against which all other laws are measured for validity.
It is therefore in the spirit of the
provisions of section 239(K) of the Constitution and a Public Notice that ZEC
put in the press regarding this subject matter that I am appealing to your
esteemed office to give us a written commitment that all our officers and
members who were unable to cast their vote will be catered for to ensure that
they are not disenfranchised.”
The applicants were, so they
averred, faced with the dilemma that their compliance with the law and
specifically with s 81B (2) of the Act would, in essence,
facilitate the undue deprivation of the rights provided in terms of s 67 of the
Constitution to the 26 160 special voters who failed to cast their votes on 14
and 15 July 2013.
THE
APPLICATION
Section 239 of the Constitution of
Zimbabwe provides:
“239
Functions of Zimbabwe Electoral Commission
The Zimbabwe Electoral Commission
has the following functions—
(a) To prepare for, conduct
and supervise—
(i) elections to the office of
President and to Parliament;
(ii) elections to provincial and
metropolitan councils and the governing bodies of local authorities;
(iii) elections of members of the
National Council of Chiefs established by section 285; and
(iv) referendums; and to
ensure that those elections and referendums are conducted efficiently,
freely, fairly, transparently and in accordance with the law …”
It was in view of its mandate set
out above and out of due regard for the following provisions of the
Constitution, that the applicant has felt constrained to make this
application.
“155
Principles of electoral system
- ….
(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) …
(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;”
“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;”
The application was opposed by the
fourth respondent. Mr Hwacha, while acknowledging the right
of the recipients of the special vote to cast their vote, submitted that
consideration was also to be given to the rights of the six (6) million voters
who are entitled to free, fair and transparent elections. He submitted
that had there been a challenge to s 81B(2) of the Act, the applicant
would have been able to argue that the derogation was not justifiable. As
it is, the wrong procedure had been adopted by the applicant. He
drew the Court's attention to s 81H of the Act which makes it a criminal
offence for special voters to vote in a general election.
However, Mr Kanengoni
expressed surprise that the MDC-T had opposed the application since it was made
as a result of consultation with all the political parties involved as to the
way forward as far as the special voters were concerned.
It was submitted on behalf of the
applicants that for the fundamental right to vote provided for in s 67 of the
Constitution to be of any effect, the obligations placed on the applicant in
terms of s 239 of the Constitution and the measures highlighted under s 155 of
the same Constitution must be met with respect to every election and
referendum. Where these standards are not met, the rights of every Zimbabwean
citizen enshrined in s 67 of the Constitution will have been violated.
Thus the failure by the first applicant, albeit through no fault of its own, to
discharge the obligations placed on it by the Constitution, resulted in
thousands of potential voters, authorized to cast their ballots on 14 and 15
July 2013, being unable to vote equally through no fault of their
own. In terms of s 81B of the Act, these potential voters are prohibited
from voting “in any other manner than by a special vote in terms of this
Part”.
THE SPECIAL
VOTE
Section 81B of the Electoral Act
provides as follows:
“81B Where
special voters must vote; special voters not entitled to vote in any other way
(1) An electoral officer or
member of a disciplined force who is authorized to cast a special vote in terms
of this Part must cast his or her vote at the special polling station for the
district in which he or she is performing duties away from the constituency in
which, or the polling station at which, he or she would ordinarily be required
to vote.
(2) A voter who has been
authorized to cast a special vote shall not be entitled to vote in any other
manner than by casting a special vote in terms of this Part.”
In view of the failure by the
applicants to facilitate the casting of their votes, the effect of
s 81B(2) would on the face of it be that the special voters were denied
their constitutional right to vote. There is, therefore, on a reading of subs
(2), an apparent conflict between s 81B of the Act and s 67(3) of the
Constitution. In this connection, the provisions of s 2(1) of the
Constitution, set out below, are relevant.
“2 SUPREMACY OF CONSTITUTION
- 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”.
THE
PRESUMPTION OF CONSTITUTIONALITY
It appears to me however that on a proper construction of s 81B, no conflict
exists. One commences the process of interpretation of the provision with the
presumption of constitutionality. Every statute is presumed to be
constitutional, that is to say, the Legislature is presumed to have acted
within the parameters of the Constitution. Thus, where a provision in a statute
is capable of two possible interpretations, one contrary to the Constitution
and the other in keeping therewith, the Court conducting the inquiry into the
constitutionality or otherwise of the provision must adopt the meaning which
will give effect to the Constitution.
The presumption of constitutionality
was explained thus by GEORGES CJ in Zimbabwe Township Developers
v Lou's Shoes (Pvt) Ltd 1983(2) ZLR 376 at 381F :
“Arguments have also been addressed
at some length on the presumption of constitutionality. It is a phrase
which appears to me to be pregnant with the possibilities of misunderstanding.
Clearly a litigant who asserts that an Act of Parliament or a Regulation is
unconstitutional must show that it is. In such a case the judicial body charged
with deciding that issue must interpret the Constitution and determine its
meaning and thereafter interpret the challenged piece of legislation to arrive
at a conclusion as to whether it falls within that meaning or it does not. The
challenged piece of legislation may, however, be capable of more than one
meaning. If that is the position then if one possible interpretation falls
within the meaning of the Constitution and others do not, then the judicial
body will presume that the law makers intended to act constitutionally and uphold
the piece of legislation so interpreted. This is one of the senses in
which a presumption of constitutionality can be said to arise. One does not
interpret the Constitution in a restricted manner in order to accommodate the
challenged legislation. The Constitution must be properly interpreted, adopting
the approach accepted above. Thereafter the challenged legislation is examined
to discover whether it can be interpreted to fit into the framework of the
Constitution”.
The learned Judge referred to the
case of Attorney General of Trinidad and Tobago v Ramesh Mootoo
(1974) 28 WLR 304 in which the following passage from Crowell v Benson
(1931) 285 US 22 at 26 (per HUGHES CJ) was quoted with approval:
“when the validity of an Act of
Congress is drawn in question, and even if a serious doubt of constitutionality
is raised, it is a cardinal principle that this court will first
ascertain whether a construction of the statute is fairly possible by which the
question may be avoided.”
While I am mindful that no challenge
has been raised as to the constitutionality of s 81B(2), the need to ascertain
the meaning of the provision has arisen because of the apparent conflict with
the Constitution which arises from the interpretation of the section advanced
by the respondents, an interpretation which, if adopted, will amount to a
violation of the constitutional right of the special voters to vote in the
general election. As will be shown below, s 81B(2) is capable of a
construction which does not offend against the Constitution.
INTERPRETING
THE STATUTORY PROVISIONS
Various rules have been formulated to assist the Court in the interpretation of
statutes. One of these often referred to as the cardinal rule of
construction, is the literal rule which requires that the words of a statute
must be given their ordinary, literal and grammatical meaning. [1]
However, the object of such
interpretation or construction is to ascertain the intention of the legislature
in enacting the provision concerned and, even where the words employed in the
statute are clear and unambiguous, a Court may depart from the ordinary effect
of the words in order to remove an absurdity and to give effect to the true
intention of the legislature “if to do otherwise would lead to an absurdity so
glaring that it could never have been contemplated by the legislature, or where
it would lead to a result contrary to the intention of the legislature as shown
by the context or by such other considerations as the Court is justified in
taking into account.”[2]
INTENTION OF
PARLIAMENT
The task before this Court is
therefore to ascertain the intention of Parliament in enacting the provision
under scrutiny. Was it intended that in circumstances such as obtain in
casu the successful applicants for special voting would be denied their
constitutional right to vote? For then that would be absurd viewed from the
context of the unqualified right to vote conferred upon such persons by the
Constitution.
The right to vote is absolute. No
derogation therefrom is provided for by the Constitution. The Court must
proceed from the premise that Parliament intended to act constitutionally and, in
casu, to respect the sacred right of the special voters to vote. It
therefore could not have intended to deprive special voters of their right to
vote should the necessary measures not be put in place by the State to enable
them to cast their special votes on the dates prescribed.
Another rule of construction, the
mischief rule, can be called in aid at this juncture. In order to assist the
court in deciding on the true intention of the legislature, the Court may have
regard to 'the mischief' that the Act was designed to remedy. Thus the
Court may look not only at the language of the statute, but also at the
surrounding circumstances, and may consider its objects, its mischiefs, and its
consequences[3]. In this
regard, in S v Meredith 1981(3) SA 29 (ZAD) at 33, BARON JA had this to
say:
“It is trite that words and
phrases cannot be construed in vacuo; their meaning can be
discerned only in the context in which they are used. I think it is worth
citing the words of Viscount SIMONDS in Attorney-General v HRH Prince Ernest
Augustus of Hanover (1957) 1 All ER 49 at 53:
“For words, and particularly general
words, cannot be read in isolation; their colour and content are derived from
their context. So it is that I conceive it to be my right and duty to examine
every word of a statute in its context, and I use context in its widest sense
which I have already indicated as including not only other enacting provisions
of the same statute, but its preamble, the existing state of the law, other
statutes in pari materia, and the mischief which I can, by those
and other legitimate means, discern that the statute was intended to remedy.”[4]
A reading of the provisions relating to the special vote discloses that
the mischief designed to be remedied by these provisions was the possibility of
double voting by persons authorised to cast a special vote.
It appears to me that subs (2) of s 81B was predicated upon a situation where
all facilities were available to enable the special voters to vote.
Thus s81 of the Act provides for the dates for special voting; the
places where the votes may be cast; the form of applications for special voting
and requirements therefor; the drawing of lines on the voters' rolls in the constituencies
where the names of the special voters appear and marking them “SV”; the conduct
of the special poll and the handling of the ballots. It does not, in my
view, envisage a state of affairs, such as presently obtains, where the State
or the applicants have failed to put in place the necessary measures to ensure
that the special voters would be able to cast their ballots upon presentation
of themselves at the polling station for that purpose. Indeed, it
seems clear that Parliament did not intend that this provision would apply in a
case such as the instant one where the special voters attended at the
designated polling stations in order to cast their votes and waited all day to
do so only to be turned away because the proper measures were not put in place
by the State. Such an intention would clearly be contrary to the
Constitution.
We are, for the above reasons, of
the view that s 81B(2) was intended by Parliament to apply only in
circumstances where all measures necessary to enable successful applicants to
cast their special votes had been taken by the responsible agents of the
State.
There was, therefore, no impediment
to the grant of the order sought by the applicants, as amended, so as to cover
only those special voters who failed to vote through no fault of their
own.
CHIDYAUSIKU
CJ: I agree.
MALABA
DCJ:
I agree.
GWAUNZA
JA:
I agree.
GARWE
JA:
I agree.
GOWORA
JA:
I agree.
HLATSHWAYO
JA: I agree.
PATEL
JA:
I agree
CHIWESHE
AJA:
I agree.
Nyika
Kanengoni & Partners,
applicants' legal practitioners
Dube,
Manikai &Hwacha,
fourth respondent's legal practitioners
[1] See G.M COCKRAM Interpretation of Statutes 3ed at p 36
[2] Cockram supra at p 46
[3] Cockram supra at p48
[4]
Cockram supra at p49
