Alex T. Magaisa
Last week, on 9th July 2015, The High Court made an important ruling compelling the Zimbabwe Electoral Commission to comply with its constitutional obligation to register voters on the voters’ roll. This ruling is consistent with the position that we have always championed on this site, namely that Zec has always had a constitutional duty to register voters under the new constitution and was therefore wrong to argue, as it did for many months, that it could not carry out its mandate pending the realignment of legislation.
Further, in this regard, and as this article will demonstrate, the ruling has great significance beyond Zec’s constitutional duties and has implications for the enforcement of constitutional obligations pending legislative realignment. Nevertheless, in tying its constitutional duties to the availability of resources, the ruling is also problematic and regrettable in that it affords room for Zec to wriggle out of its constitutional obligations.
Duty to register voters
The case started when Dumiso Dabengwa, the President of Zapu, an opposition political party brought an application compelling Zec to comply with its constitutional duties under s. 239 of the constitution. These include duties to register voters and to compile and maintain the voters’ roll. These duties had been transferred to Zec under the new constitution. Previously, they were exercised by the Registrar-General, in his capacity as Registrar of Voters.
The state of the voters’ roll under the management and supervision of the RG had been a subject of severe criticism by the opposition. Transfer of these functions to an independent Zec was hailed as a positive development which would help bring credibility to the voters’ roll. However, disappointingly, Zec had failed and/or refused to carry out voter registration and attendant duties relating to the voters’ roll since the inception of the new constitution. Their main argument was that there was a gap in the legislation which still made reference to the RG and that it was necessary for the legislation to be realigned with the new constitution before they could start executing their constitutional functions.
This argument was flawed and at the time we pointed out its weaknesses, arguing that Zec’s constitutional obligations were supreme and Zec did not have to wait for legislative realignment before their could start performing their constitutional obligations.
It is therefore not surprising that on this question, the High Court found in favour of Dabengwa and Zapu, holding that Zec must carry out its mandatory obligation to register voters and to compile the voters’ roll.
“It is clear from the undisputed law and facts of this case, that the Commission has a mandatory constitutional obligation to register voters in every ward and constituency in this country in terms of the constitution and related subordinate legislation,” the court said in its judgment.
The court rightly agreed that the applicants had the right to demand that Zec complies with its constitutional functions. The importance of this is that it reaffirms the position that any person with an interest has the right to compel the state or its agencies to comply with clear constitutional obligations. If a person believes there is a constitutional obligation which is being infringed, they have a right to approach the courts to compel compliance.
Continuous Registration
The judgment also reaffirms the important principle that voter registration is a continuous and on-going exercise.
“… the law requires is that there be a continuous system of registration of voters … This is a mandatory duty from which the commission and its chairperson cannot abdicate or postpone as it is an ongoing process which they cannot suspend” the court said.
Again, this is a point that we had always insisted upon, that Zec could not abdicate its constitutional duty to provide a facility for on-going registration of voters. This is important because all too often, voter registration is seen as an exercise that only comes near or towards election periods. By then, however, there will be too little time and fewer facilities to meet demand, which leaves many would-be voters unregistered. Since voter registration is an on-going and continuous exercise, political parties and civil society must encourage people to register as voters and Zec itself must make the facility available and also encourage people to register as part of its constitutional mandate.
Lack of Resources
The regrettable part of the judgment is where the court appears to tie Zec’s constitutional obligations to the availability of its resources.
“The Commission has also raised the defence that it does not have adequate resources to carry out its mandate. While it might be so, one is obliged to cut his garment according to his cloth. What this means is that the Commission is obliged to carry out its constitutional functions in accordance with available resources” the court stated in its judgment.
The court goes further to state,
“It is an established principle of our legal system that the law does not compel the impossible. The Commission wiII not be expected to carry out its functions beyond what is feasible within the confines of available resources. … it is necessary for this court to issue a mandatory order directing it to do so within the confines of the available resources using the methods in its view best suited for the purpose.”
These remarks are not helpful and seem to qualify and water-down Zec’s mandatory constitutional obligations. The constitution does not qualify Zec’s constitutional duties to register voters and to compile the voters’ roll. It simply requires Zec to carry out its mandatory duties. In tying the mandatory constitutional duties to the “confines of the available resources”, the court is basically giving Zec an easy excuse to limit performance of the constitutional obligation or to avoid it altogether.
In other words, Zec can always argue in return to a demand for voter registration that they do not have the resources. This would, in effect, allow Zec to abdicate its constitutional obligation using the cover of lack of resources. If Government does not want Zec to carry out continuous registration, they can simply starve it of resources and Zec can always argue that it does not have the resources.
The court’s qualification of Zec’s mandatory constitutional obligation is, with respect, legally unsound for two reasons:
First, s. 239 of the constitution, which imposes these constitutional duties upon Zec, does not include a qualification based on the availability of resources. The court’s duty is to interpret the constitution, not to re-write it. The court cannot, as it has done, write in the resources-based qualification into s. 239 of the constitution.
Second, where the constitution imposes obligations and the performance of these obligations is tied to the availability of resources, it says so in clear and certain terms. For example, many of the obligations imposed upon the state under chapter 3 of the constitution are qualified by the availability of resources. For instance, the obligation to provide social welfare under s. 30 states as follows, “The State must take all practical measures, within the limits of the resources available to it, to provide social security and social care to those who are in need”.
This resources-based qualification is repeated in various other sections under chapter 3. The important thing in this regard is that where the Parliament wanted there to be a resources-based qualification on the duties of the state, it made that qualification clear and certain. The fact that there is no such qualification in regard to the constitutional duty to register voters and to compile and maintain the voters’ roll under s. 239 must mean that Parliament never intended that there should be such a qualification and the court has no power to invent one. The duties under s. 239 are absolute and the court was wrong to insinuate a resources-based qualification on the performance of that duty.
Use of previous voters’ rolls
Another issue raised by the applicants was whether or not Zec should be barred from using the voters’ rolls sued previously by the RG. As we have noted earlier, the state of the voters’ roll as maintained by the RG was the subject of much controversy and criticism. The applicants wanted Zec to start on a clean slate and therefore wanted an order that Zec should not simply copy and paste the old voters’ roll. However, in this regard, the court held that Zec has “unfettered discretion to use or not to use previous voters’ rolls in its registration and compilation of current voters’ rolls”. This is probably a harder argument for the applicants. However, one would expect Zec to be reasonable in its compilation of the voters’ roll, taking cognisance of the criticisms of the previous voters’ rolls.
Constitution and legislative realignment
A very important constitutional point which the judgment reaffirms is in regard to the supremacy of the constitution and the fact that its application is not dependent upon legislative realignment. For a long time, Government has given the impression that constitutional rights and obligations are dependent upon the completion of the on-going and seemingly endless legislative realignment process. Sadly, civil society and opposition parties and commentators have bought into this flawed and false reasoning, hence the widespread mantra over legislative re-alignment. It has given the misleading impression that the applicability of the constitution is suspended until such time that the legislative realignment process is complete. This view needs to be quashed because it is wrong.
The truth of the matter is that once the constitution became fully operational in 2013, it became the supreme law of the land, a position made clear in s. 2(1) of the constitution which states that, “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.” Further, s. 10 of the Sixth Schedule of the constitution states that, “Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution.”
The collective effect of these provisions is that the constitution is not and cannot be subordinated to legislation. All existing legislation must be read in line with the new constitution. You do not have to await the completion of the legislative realignment process before you start enforcing constitutional rights and obligations. This applies in all cases, without exception. Lawyers and civil society activists must look to the constitution and use constitutional arguments to require enforcement of obligations enshrined in the constitution. One cannot argue that the legislation is not yet realigned to the new constitution as a basis for avoid existing constitutional obligations. In short, right now, the constitution is applicable here and now because it IS the law. It will take many years before the Government realigns legislation to comply with the constitution. In fact, it is not practically possible for the Government to amend and realign all the thousands of laws on our statute books.
This, however, does not mean the rights and obligations enshrined in the constitution are dependent upon some legislative realignment process. The law is what the constitution says it is and it must be enforced as such. This is why Zec was wrong to duck its constitutional responsibility because of lack of realignment. Indeed, this is why the Government or anyone is wrong if they ever argue that they cannot perform constitutional duties because there is no legislative realignment.
