News / Local
Court clears ZEC to receive postal votes by 20 August
11 Aug 2023 at 18:48hrs | Views
Justice Tawanda Chitapi has this afternoon dismissed with no order as to costs an urgent application by Saviour Kasukuwere asking the High Court in Harare to set aside Statutory Instrument (SI) 140A of 2023 on grounds that it is unconstitutional in that it violates section 157(5) of the Constitution which provides that no change to the Electoral Law or to any other law relating to elections has the effect for the purpose of an election that has been called.
Justice Chitapi found and ruled as follows:
I am of the view that the law was not changed, and that any periods provided by the Act can be altered. My view is that the passage of SI 140A is administrative, exercised as and when necessary to do so. It cannot be held that the exercise of the power given is alteration of the law.
SI 140A therefore amounts to a conduct of implementation of the law, not changing the law. My view is that the Electoral law remains extant: it is the same law which says implement me in this way, an exercise which makes sure that the implementation is done properly.
I am not persuaded that this matter has merits to stand. The application is dismissed with no order as to the costs.
On Kasukuwere's locus standi, raised by ZEC as a point in limine, in an effort to block the application, Justice Chitapi found that:
Respondent's contention that the applicant has no locus is of no interest to me, I was not really concerned with that, however the applicant had substantial interest in the matter, whether or not he is in contempt of court, I do not make a ruling on that it's done in another court.
ZEC gazetted Statutory Instrument 140A of 2023 on 3 August 2023 to extend the deadline for the submission of postal votes to ZEC from August 9 to August 20, owing to delays in the finalisation of the unprecedented high number of court cases and appeals that arose from the Nomination Court which sat on 21 June 2023.
More than 18 000 registered voters who include members of the defence forces, police and intelligence services, as well as electoral officers, diplomatic and consular officials working outside the country and their spouses applied for postal voting by the deadline of 5 July 2023. Out of these, 17,483 were approved by ZEC to vote by post in the forthcoming harmonised general election.
But, because it was unable to print ballot papers on time, ZEC failed to send postal ballot papers within the prescribed time, to these postal voters, who should have returned their votes by 9 August 2023.
The fact that majority of the 17,483 approved postal voters are from the defence forces, police and intelligence services, makes the issue of postal voting particularly sensitive.
Disenfranchising the uniformed force in the month of August, because of inefficient management of the electoral process by ZEC would be unacceptable. This is why ZEC is now pulling all the stops to make the postal voting happen, even though it's now a hectic if not impossible race against time for the electoral body.
With 12 days to go before polling day, it remains to be seen whether all the 17,483 registered voters who qualified to vote by post will in fact receive their ballot papers, and whether they will manage to get their voters back to ZEC to reach it by 20 August; and whether ZEC will manage to get the postal votes to the relevant polling stations across the 210 constituencies before vote counting starts.
It's going to be a nerve-racking ordeal for ZEC.
Below are notes from the extempore judgment delivered by Justice Chitapi at the High Court in Harare this afternoon:
Following the submissions between the parties and the consideration from the papers, I have decided to give a short extempore judgment. The order which the applicant seeks is set out in full on pages 14 and 15 of the record.
The applicant contends that the SI 140A is unconstitutional as it contravenes with section 157(5). It's common cause that the SI was promulgated after the proclamation of the election date. It is common cause that the SI is made for the upcoming elections on 23rd of August 2023.
Respondents deny that this is a new law.
They contend that the provisions of the Electoral Act being section 192(4) and (5) are not being challenged. They say they did not make a new law; and they contend that they only changed the dates.
The applicant's contention is that whilst the 1st respondent is empowered by section 192(4) and (5) to change dates, must however not change the law after proclamation of the election date.
The 1st respondent however changed the law through the promulgation of SI 140A, they also contend that not shifting the dates will disenfranchise voters who have qualified for postal voting, although they're not cited on the application.
Counsel for the applicant agreed that the disenfranchisement will affect voters, who must kiss goodbye to these upcoming elections.
The Applicant's submission is that the SI changes the law.
The 1st respondent says that the court must consider the existing law, which is protected by the section 157(5) of the Constitution.
First respondent contends that section 192(4) and (5) is there to ensure that the election is free, fair and efficient. The 1st respondent is mandated to ensure that rights of postal voters are promoted and protected and given to registered voters whose applications for voting by post were approved.
It is common cause that section 192 alters periods as read with section 75 of the Electoral Act. What we must ask is whether the enabling law was changed by the SI.
I am of the view that the law was not changed, and that any periods provided by the Act can be altered. My view is that the passage of SI is administrative, exercised as and when it is necessary to do so. It cannot be held that the exercise of the power given is alteration of the law.
SI 140 therefore amounts to a conduct of implementation of the law, not changing the law. My view is that the Electoral law remains extant: it is the same law which says implement me in this way, an exercise which makes sure that the implementation is done properly.
Respondent's contention that the applicant has no locus is of no interest to me, I was not really concerned with that, however the applicant had substantial interest in the matter, whether or not he is in contempt of court, I do not make a ruling on that it's done in another court.
I am not persuaded that this matter has merits to stand. Application is therefore dismissed with no order as to the costs.Verbatim notes from Justice Tawanda Chitapi's extempore judgment; Harare High Court; 11 August 2023!
Justice Chitapi found and ruled as follows:
I am of the view that the law was not changed, and that any periods provided by the Act can be altered. My view is that the passage of SI 140A is administrative, exercised as and when necessary to do so. It cannot be held that the exercise of the power given is alteration of the law.
SI 140A therefore amounts to a conduct of implementation of the law, not changing the law. My view is that the Electoral law remains extant: it is the same law which says implement me in this way, an exercise which makes sure that the implementation is done properly.
I am not persuaded that this matter has merits to stand. The application is dismissed with no order as to the costs.
On Kasukuwere's locus standi, raised by ZEC as a point in limine, in an effort to block the application, Justice Chitapi found that:
Respondent's contention that the applicant has no locus is of no interest to me, I was not really concerned with that, however the applicant had substantial interest in the matter, whether or not he is in contempt of court, I do not make a ruling on that it's done in another court.
ZEC gazetted Statutory Instrument 140A of 2023 on 3 August 2023 to extend the deadline for the submission of postal votes to ZEC from August 9 to August 20, owing to delays in the finalisation of the unprecedented high number of court cases and appeals that arose from the Nomination Court which sat on 21 June 2023.
More than 18 000 registered voters who include members of the defence forces, police and intelligence services, as well as electoral officers, diplomatic and consular officials working outside the country and their spouses applied for postal voting by the deadline of 5 July 2023. Out of these, 17,483 were approved by ZEC to vote by post in the forthcoming harmonised general election.
But, because it was unable to print ballot papers on time, ZEC failed to send postal ballot papers within the prescribed time, to these postal voters, who should have returned their votes by 9 August 2023.
The fact that majority of the 17,483 approved postal voters are from the defence forces, police and intelligence services, makes the issue of postal voting particularly sensitive.
Disenfranchising the uniformed force in the month of August, because of inefficient management of the electoral process by ZEC would be unacceptable. This is why ZEC is now pulling all the stops to make the postal voting happen, even though it's now a hectic if not impossible race against time for the electoral body.
With 12 days to go before polling day, it remains to be seen whether all the 17,483 registered voters who qualified to vote by post will in fact receive their ballot papers, and whether they will manage to get their voters back to ZEC to reach it by 20 August; and whether ZEC will manage to get the postal votes to the relevant polling stations across the 210 constituencies before vote counting starts.
It's going to be a nerve-racking ordeal for ZEC.
Following the submissions between the parties and the consideration from the papers, I have decided to give a short extempore judgment. The order which the applicant seeks is set out in full on pages 14 and 15 of the record.
The applicant contends that the SI 140A is unconstitutional as it contravenes with section 157(5). It's common cause that the SI was promulgated after the proclamation of the election date. It is common cause that the SI is made for the upcoming elections on 23rd of August 2023.
Respondents deny that this is a new law.
They contend that the provisions of the Electoral Act being section 192(4) and (5) are not being challenged. They say they did not make a new law; and they contend that they only changed the dates.
The applicant's contention is that whilst the 1st respondent is empowered by section 192(4) and (5) to change dates, must however not change the law after proclamation of the election date.
The 1st respondent however changed the law through the promulgation of SI 140A, they also contend that not shifting the dates will disenfranchise voters who have qualified for postal voting, although they're not cited on the application.
Counsel for the applicant agreed that the disenfranchisement will affect voters, who must kiss goodbye to these upcoming elections.
The Applicant's submission is that the SI changes the law.
The 1st respondent says that the court must consider the existing law, which is protected by the section 157(5) of the Constitution.
First respondent contends that section 192(4) and (5) is there to ensure that the election is free, fair and efficient. The 1st respondent is mandated to ensure that rights of postal voters are promoted and protected and given to registered voters whose applications for voting by post were approved.
It is common cause that section 192 alters periods as read with section 75 of the Electoral Act. What we must ask is whether the enabling law was changed by the SI.
I am of the view that the law was not changed, and that any periods provided by the Act can be altered. My view is that the passage of SI is administrative, exercised as and when it is necessary to do so. It cannot be held that the exercise of the power given is alteration of the law.
SI 140 therefore amounts to a conduct of implementation of the law, not changing the law. My view is that the Electoral law remains extant: it is the same law which says implement me in this way, an exercise which makes sure that the implementation is done properly.
Respondent's contention that the applicant has no locus is of no interest to me, I was not really concerned with that, however the applicant had substantial interest in the matter, whether or not he is in contempt of court, I do not make a ruling on that it's done in another court.
I am not persuaded that this matter has merits to stand. Application is therefore dismissed with no order as to the costs.Verbatim notes from Justice Tawanda Chitapi's extempore judgment; Harare High Court; 11 August 2023!
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