REPORTABLE
(13)
Judgment
No. S.C. 20/02
Const.
Application No. 76/02
MORGAN TSVANGIRAI v
(1)
REGISTRAR GENERAL OF ELECTIONS
(2)
THE MINISTER OF JUSTICE, LEGAL AND
PARLIAMENTARY AFFAIRS
(3)
THE PRESIDENT OF ZIMBABWE
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, ZIYAMBI JA & MALABA JA
HARARE,
MARCH 8 & APRIL 4, 2002
A
P de Bourbon SC, for
the applicant
Miss
Machaka, for the
respondents
CHIDYAUSIKU
CJ: The applicant in this matter has approached this Court in
terms of s 24(1) of the Constitution seeking an
order that s 158
of the Electoral Act be declared to be inconsistent with the
Constitution and therefore invalid. Alternatively,
that Statutory
Instrument 41D of 2002,(the statutory instrument), be declared to be
ultra vires
s 158 and therefore invalid.
Various other orders were sought
against the Registrar General of Elections. These shall be dealt
with later in this judgment.
The
application was opposed by the respondents, the first respondent
averring that the applicant has no locus
standi in judicio to
approach this Court in terms of s 24(1) of the Constitution.
LOCUS STANDI
Section 24(1) of the Constitution
provides:
If
any person alleges
that the Declaration of Rights has been, is being or is likely to be
contravened in relation to him
then, without prejudice to
any
other action with respect to the same matter which is lawfully
available, that person
may
apply to the Supreme Court for
redress.
The
applicant alleged that there has been and there continues to be
serious breaches of the Declaration of Rights as set out in
the
Constitution of Zimbabwe in respect of myself and all the
considerable amount of people in Zimbabwe who regard me as their
political
leader. He alleged further that section 158 of the
Electoral Act violates the Declaration of Rights contained in the
Constitution
of Zimbabwe in respect of myself and those considerable
amount of persons who support me in my presidential campaign.
Alternatively,
it was alleged that the Electoral Act
(Modification) Notice 2002 (IS 41D of 2002) violates the
Declaration of Rights as contained
in the Constitution of Zimbabwe in
respect of myself and those who support me in my Presidential
campaign.
The
preliminary issue to be decided is whether these allegations satisfy
the requirements of section 24(1) for locus
standi in judicio
justifying the approach by the applicant to this Court for redress.
The first observation to be made is that a bald, unsubstantiated
allegation will not satisfy the requirements of the section. The
applicant must aver in his founding affidavit facts, which if
proved,
would establish that a fundamental right enshrined in the Declaration
of Rights has been contravened in respect of himself
as opposed to
some other person.
THE RIGHT ALLEGED TO BE INFRINGED
The applicant alleged in his
founding affidavit that the first respondent in the organisation of
the forthcoming general election
has repeatedly been heavily
biased in favour of the third respondent and against me and that this
has resulted in serious breaches
of the Declaration of Rights of
myself and my supporters.
As against the third respondent
it was alleged that the third respondent has all the State
personnel and machinery at his disposal
in order to assist him in his
campaign. In addition, the third respondent has the very
considerable powers vested in him
as set out in section 158 of the
Electoral Act in relation to the manner in which the election is
conducted, all of which he is using
to his own advantage and to my
disadvantage. He went on to list the following complaints -
1. That in terms of s 4 of
the Electoral (Presidential Election) Notice 2002 (IS 3A of
2002) the voters roll was regarded
as closed with effect from
10 January 2002 for the purposes of accepting the
registration of voters who may vote at the election
of a President.
However on 27 January and again on 3 March further Notices
were issued declaring the voters roll closed.
During the period
10 January to 3 March certain persons continued to register
as voters until 3 March 2002. It
was alleged that these
persons were supporters of the ruling party and that the first
respondent had secretly and substantially
extended the voters
registration exercise for the total benefit of the third respondent.
It was further alleged that the
alleged extensions were made on the
instructions of the third respondent and that the effect of them is
to put the third respondent
at a major unfair advantage over him in
the forthcoming election and so seriously violate my rights as set
out in the Declaration
of Rights; and
2. That the Electoral Act
(Modification) Notice, 2002, (SI 41D of 2002) violates the
Declaration of Rights as contained in
the Constitution in respect of
myself and those who support me in my presidential campaign and
for this reason the Notice is
invalid and of no legal force.
No
specific fundamental right was alleged in his founding affidavit but
in his heads of argument, Mr de Bourbon,
who appeared for the applicant, submitted that the rights infringed
were those enshrined in ss 18 and 20 of the Constitution.
These sections provide as follows:
Section 18(1)
18 (1) Subject to the
provisions of this Constitution, every person is entitled to the
protection of the law.
Section
20(1):
20 (1) Except with his own
consent or by way of parental discipline, no person shall be hindered
in the enjoyment of his freedom of
expression, that is to say,
freedom to hold opinions and to receive and impart ideas and
information without interference, and freedom
from interference with
his correspondence.
SECTION 18: RIGHT TO
PROTECTION OF THE LAW
This
right has been held to embrace the right to due process of the law.
Thus in Biti & Anor
v Minister of Justice & Anor
S-10-02 the applicants right as a member of Parliament to have
Parliament follow its own laws in enacting legislation entitled
him
to approach this court for redress. And in Chavunduka
& Anor v Minister of Home Affairs & Anor
2000 (1) ZLR 552 (S), the applicants, who were aggrieved by the
failure of the police to investigate a crime committed against them,
were entitled to approach this Court for the enforcement of their
fundamental right to the protection of the law.
In
the present case, however, the applicant has not shown that his right
to protection of the law has been infringed by the enactments
which
he seeks to impugn, namely s 158 of the Electoral Act and the
statutory instrument. What he has averred is that the
members of
the electorate who might vote for him were denied the right to
register as voters after 10 January 2001, while those
who
supported the third respondents party were allowed to register
right up to 3 March. It might be that this last allegation,
if
shown to be true, would entitle those persons who were denied the
right to register to approach this Court for redress in terms
of
s 24(1) but the applicant may not approach this Court on their
behalf unless they are detained. He cannot be a torch bearer
for
them. See United
Parties v Minister of Justice
1997 (2) ZLR 254 (S).
SECTION 20: THE RIGHT TO
FREEDOM OF EXPRESSION
The
order sought is for a declaration that the statute, alternatively the
statutory instrument, is invalid. The applicants papers
must
allege that the effect of the impugned legislation is to contravene a
constitutional right in respect of himself. In
casu he must allege
that his fundamental right to freedom of expression has been
contravened by the enactments in question.
A constitutional right that
invalidates a law may be invoked by a person affected by the law only
if that person is also entitled
to the benefit of the constitutional
right. If not so entitled, then that person will be precluded from
impugning the law.
See
Retrofit (Pvt) Ltd v
Posts & Telecommunications Corporation & Anor
1995 (2) ZLR 199 (S) at 207G-H.
The question arises whether the
applicant has shown that his right to freedom of expression has been
affected by the legislation sought
to be impugned. None of the
jumbled and vague allegations made in the applicants affidavit
satisfy this Court that the applicants
fundamental right to
freedom of expression has been, or is likely to be, contravened. It
seems that it has become the practice
of legal practitioners to throw
in whatever information is available in the applicants founding
affidavit with little regard to
the relevance of the allegations or
the requirements of s 24(1). What must clearly be set out in
the applicants affidavit
is that a fundamental right enshrined in
the Declaration of Rights has been or is likely to be infringed in
respect of him as well
as the material facts which establish this
allegation.
The applicant took issue with s 4
of the statutory instrument which provides:
4 (1) Notwithstanding Part XV
of the Act, no voter shall be entitled to receive a postal ballot
paper unless his absence
from his constituency or inability to attend
a polling station, as the case may be, is or will be occasioned by
(a) duty as a member of a
disciplined force or as a constituency registrar, presiding officer,
polling officer or counting officer;
or
(b) absence from Zimbabwe in the
service of the Government of Zimbabwe; or
(c) being a spouse of a person
referred to in paragraph (a) or (b) who accompanies that person
outside Zimbabwe.
He
attached to his affidavit a newspaper article telling of the manner
in which the disciplined forces were voting and an affidavit
by
one John Stewart Matthews who alleged that he had tried
unsuccessfully to obtain a postal vote as officials of the first
respondents
office advised him that he ought to have applied ten
days before polling and that his application was out of time. In
order to
establish an infringement of his right to freedom expression
one would have expected the applicant to allege that he had applied
to the first respondent for a postal ballot and was denied because
of the provisions of s 4 of the statutory instrument which
restrict postal ballots to members of the disciplined forces or some
similar allegation. In the absence of any allegation establishing
the infringement of a fundamental right of the applicant he has no
locus standi in judicio
to impugn the statutory instrument
THE OTHER ORDERS SOUGHT
These are orders directing the
first respondent as to the manner in which he should execute the duty
assigned to him by the Electoral
Act of conducting the Elections.
Section 15 of the Act provides that in the exercise of his functions
conferred by or under
this Act the first respondent shall
not be subject to the direction or control of any person or authority
other than the Electoral
Directorate
. Thus, however
desirable the remedies sought might appear to be, this Court has no
power to grant them as to
do so would be contrary to the provisions
of the Act. The applicants remedy in this regard would lie in
review proceedings before
the High Court.
JOINDER
At
the hearing, Mr de Bourbon
made an application for joinder of the deponents of three affidavits
which he tendered to the Court. There was no prior service
on the
respondents of the affidavits and Miss Machaka
objected to the joinder on the grounds that the respondents had had
no opportunity to respond to the allegations made therein and,
insofar as Paul Themba Nyathi was concerned, his affidavit contained
allegations not made in the founding affidavit and which altered
the
character of the application served on the respondents.
Mr de Bourbon,
in answer to a question from the Court, advised the Court that these
affidavits were produced so that this Court would not decline
jurisdiction. However, this Court having declined jurisdiction in
respect of the main application, the applications for joinder
must
necessarily fall away.
Accordingly the application fails
on the preliminary issue and it is therefore unnecessary to decide
the question of the validity
of the enactments in question.
COSTS
There will be no order as to
costs.
CHEDA
JA: I agree.
ZIYAMBI
JA: I agree.
MALABA
JA: I agree.
SANDURA JA:
I have read the judgment prepared by CHIDYAUSIKU CJ but
respectfully disagree with the conclusion
that the applicant did not
have the locus standi
to bring this urgent application in terms of s 24(1) of the
Constitution of Zimbabwe (the Constitution).
In
the application, which was filed in this Court on 7 March 2002
and was heard on the following day, i.e. 8 March 2002,
the day
before the commencement of the 2002 presidential election, the
applicant sought the following relief, inter
alia:
IT IS DECLARED THAT:
1. Section 158
of the Electoral Act [Chapter 2:01]
is invalid and of no legal force, and accordingly the Electoral Act
(Modification) Notice, 2002, published in SI 41D of 2002
on
5 March 2002, is invalid and of no legal force.
Alternatively, the Electoral Act
(Modification) Notice, 2002, published in SI 41D of 2002 on
5 March 2002, is invalid and
of no legal force
.
The background facts are as
follows. The applicant is the President of the Movement for
Democratic Change (the MDC), the
main opposition party in
Zimbabwe. At the relevant time, he was the principal challenger to
the third respondent in the 2002 presidential
election due to be held
on 9 and 10 March 2002.
On
5 March 2002 the third respondent, acting in terms of s 158
of the Electoral Act [Chapter 2:01],
promulgated the Electoral Act (Modification) Notice, 2002, published
in Statutory Instrument 41D of 2002 (the Notice).
The Notice was issued three
days before the presidential election commenced and dealt with vital
and important issues relating to
the manner in which the election was
to be conducted. It altered the provisions of the Electoral Act in
material respects and,
consequently, the conditions under which the
election was to be conducted.
The applicant was aggrieved by
the provisions in the Notice because he believed that they gave the
third respondent an unfair advantage
over him in the election.
Accordingly, acting in terms of s 24(1) of the Constitution, he
brought this urgent application
directly to this Court challenging
the constitutionality of s 158 of the Electoral Act and the
Notice.
The
issue which arises for consideration is whether the applicant had the
locus standi
to bring this application in terms of s 24(1) of the
Constitution. That section reads as follows:
24 (1) If any person alleges
that the Declaration of Rights has been, is being or is likely to be
contravened in relation to him (or,
in the case of a person who is
detained, if any other person alleges such a contravention in
relation to the detained person), then,
without prejudice to any
other action with respect to the same matter which is lawfully
available, that person (or that other person)
may, subject to the
provisions of subsection (3), apply to the Supreme Court for
redress.
In paras 9, 10, 12 and 19 of
his founding affidavit the applicant averred as follows:
9. It is my respectful
submission that section 158 of the Electoral Act violates the
Declaration of Rights contained in the Constitution
of Zimbabwe in
respect of myself and those considerable amount of persons who
support me in my Presidential campaign. I therefore
respectfully
submit that section 158 of the Electoral Act is invalid and of
no legal force.
10. Alternatively, it is my
respectful submission that the Electoral Act (Modification) Notice
2002 (SI 41D of 2002) violates
the Declaration of Rights as
contained in the Constitution of Zimbabwe in respect of myself and
those who support me in my Presidential
campaign. I therefore
respectfully submit that the Notice is invalid and of no legal force
on that basis as well.
12. However, I humbly request
this Honourable Court, as a citizen of Zimbabwe and as a candidate at
the forthcoming Presidential election,
to safeguard the Declaration
of Rights as set out in the Constitution of Zimbabwe for myself and
my supporters.
19. In addition, the third
respondent has the very considerable powers vested in him as set out
in section 158 of the Electoral
Act in relation to the manner in
which the election is conducted, all of which he is using to his own
advantage and to my disadvantage.
Although in his founding
affidavit the applicant did not specify which section of the
Declaration of Rights was contravened by s 158
of the Electoral
Act, I do not think that the failure to do so was fatal. However,
the omission was remedied by the heads of argument
filed by counsel
for the applicant and by the oral argument advanced by counsel in
support of the application. It was made clear
that the provisions
of the Declaration of Rights allegedly contravened by s 158 of
the Electoral Act were s 18(1) and s 20(1).
Before dealing with the
relevant provisions of the Declaration of Rights I would like to
refer to s 158 of the Electoral Act.
It reads as follows:
158 (1) Notwithstanding any
other provision of this Act but subject to subsection (2), the
President may make such statutory
instruments as he considers
necessary or desirable to ensure that any election is properly and
efficiently conducted and to deal
with any matter or situation
connected with, arising out of or resulting from the election.
(2) Statutory instruments made
in terms of subsection (1) may provide for
(a) suspending or amending any
provision of this Act or any other law insofar as it applies to any
election;
(b) altering any period specified
in this Act within which anything connected with, arising out of or
resulting from any election
must be done;
(c) validating anything done in
connection with, arising out of or resulting from any election in
contravention of any provision of
this Act or any other law;
(d) empowering any person to make
orders or give directions in relation to any matter connected with,
arising out of or resulting
from any election;
(e) penalties
for contraventions of any such statutory instrument, not exceeding
the maximum penalty referred to in section one
hundred and fifty-five.
It was the applicants
contention that the section gave the third respondent immense powers
in terms of which he had radically altered
the Electoral law passed
by Parliament and, consequently, the conditions under which the
election was to be held, thereby giving
the third respondent an
unfair advantage over him in what was supposed to be a fair election.
In other words, the applicants
contention was that the election should be conducted in terms of the
Electoral Law passed by Parliament
(i.e. the Electoral Act), as
required by s 28(4) of the Constitution, and not in terms of
regulations promulgated by the third
respondent under s 158 of
the Electoral Act.
In this regard, the relevant
provisions of s 28 of the Constitution, which deal with the
election of the President, read as follows:
(1)
(2) The President shall be
elected by voters registered on the common roll.
(3)
(4) The procedure for the
nomination of candidates for election in terms of subsection (2) and
the election of the President shall
be as prescribed in the Electoral
Law.
Electoral Law is defined
in s 113 of the Constitution as follows:
Electoral Law means the
Act of Parliament having effect for the purposes of section 58(4)
which is for the time being
in force.
Section 58(4) of the
Constitution, referred to in the definition of Electoral Law,
reads as follows:
An Act of Parliament shall
make provision for the election of members of Parliament, including
elections for the purpose of filling
casual vacancies.
What
all this means is that the legislation which comprises the Electoral
Law must be an Act of Parliament. That Act of Parliament
is the
Electoral Act [Chapter 2:01].
In
the circumstances, it was submitted by counsel for the applicant that
in terms of the Constitution Parliament did not have the
power to
delegate to any person its constitutional function to make the
Electoral Law, and that the power given by Parliament to
the
President to amend the Electoral Law by regulations in terms of s 158
of the Electoral Act was unconstitutional. I think
there is merit
in counsels submission. However, that is not an issue to be
determined at this stage as I am only concerned with
the question of
the applicants locus
standi.
In this regard, it was further
submitted that s 158 of the Electoral Act contravened s 18(1)
of the Constitution, which
reads as follows:
18 (1) Subject to the
provisions of this Constitution, every person is entitled to the
protection of the law.
It
is well established that the right to the protection of the law
enshrined in s 18(1) of the Constitution includes the right
to
due process of the law. See: Marumahoko
v Chairman of the Public Service Commission & Anor
1991 (1) ZLR 27 (HC) at 42-44; and Tendai
Laxton Biti & Anor v The Minister of Justice, Legal and
Parliamentary Affairs & Anor
SC-10-2002 at p 5 of the cyclostyled judgment.
Quite clearly, the entitlement
of every person to the protection of the law, which is proclaimed in
s 18(1) of the Constitution,
embraces the right to require the
legislature, which in terms of s 32(1) of the Constitution consists
of the President and Parliament,
to pass laws which are consistent
with the Constitution.
If,
therefore, the legislature passes a law which is inconsistent with
the Declaration of Rights any person who is adversely affected
by
such a law has the locus
standi to challenge
the constitutionality of that law by bringing an application directly
to this Court in terms of s 24(1) of the
Constitution.
Thus,
in the present case, the applicant had the right to demand that the
presidential election be conducted in terms of the Electoral
Law
passed by Parliament as required by s 28(4) of the Constitution.
In the circumstances, he had the right to approach this
Court
directly in terms of s 24(1) of the Constitution and had the
locus standi
to file the application.
Finally,
I wish to say that in the past this Court has taken a broad view of
locus standi
in applications of this nature in order to determine the real issues
raised where the applicant has a real and substantial interest
in the
matter. See, for example, Catholic
Commission for Justice and Peace in Zimbabwe v Attorney-General &
Ors 1993 (1) ZLR 242
(S) at 250 A-E; and Law
Society of Zimbabwe & Ors v Minister of Finance
1999 (2) ZLR 231 (S) at 233G-234G.
In
the circumstances, as the applicant had locus
standi, the Court
should have determined the real issues raised in this application
before the presidential election was held.
Gill,
Godlonton & Gerrans,
applicant's legal practitioners
Civil
Division of the Attorney-Generals Office,
respondents' legal practitioners