On the 25th March 2020, the Chairperson of the Zimbabwe Electoral Commission [ZEC], Judge Priscilla Chigumba, announced the suspension of electoral activities. She said that in view of the President’s declaration of the global coronavirus as a national disaster all electoral activities would be suspended until further notice. Her statement was made with reference to an upcoming by-election in Ward 16 of the Chiredzi Rural District Council which was scheduled for the 4th April 2020, but it applies to parliamentary as well as local authority by-elections. Her statement was confirmed by ZEC’s Chief Elections Officer on the 9th May, who said that all pending by-elections had been suspended in view of the pandemic. Whether voter registration has also been suspended is not clear.
Is ZEC allowed to suspend or postpone elections like this? There is nothing in the law that says they can, as we shall show in this Election Watch.
Free, fair and regular elections are one of the principles of good governance, which is a founding value of Zimbabwe enshrined in section 3 of the Constitution and binding on “the State and all institutions and agencies of government at every level”. The word “regular” suggests that elections must be held at uniform intervals and within the time-limits laid down by law, and that if they are to be postponed at all the postponement must be for a very good reason and must be done in accordance with law.
Section 67 of the Constitution gives every Zimbabwean citizen the fundamental right to free, fair and regular elections for any elective public office. Again, the word “regular” is used. So regularity of elections is one of the things to which citizens are entitled as part of this fundamental right.
Admittedly, the right to free, fair and regular elections, like most of the other fundamental rights in the Declaration of Rights, can be limited under section 86 of the Constitution so long as the limitation is “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”. We shall deal later with the question whether ZEC’s suspension of by-elections is “necessary”, but for the time being we can simply point out that the suspension was not done in terms of any law ‒ it was merely an administrative decision, apparently not even a written one.
Finally, section 158(3) of the Constitution states that polling in by-elections to fill vacancies in Parliament and local authorities must take place within 90 days after the vacancies occurred, unless the vacancies occur within nine months before a general election. The section does not say that by-elections can be postponed beyond the 90-day limit, and there is no other provision in the Constitution that gives a power to postpone elections or by-elections.
The Electoral Act
Section 39 of the Electoral Act gives the President power to fix the dates of by-elections to fill vacancies among the constituency members of the National Assembly, but – echoing section 158 of the Constitution ‒ says that polling in by-elections must not be more than 90 days after the vacancies occurred.
In the case of by-elections to fill vacancies in local authority councils section 121A of the Act gives ZEC power to fix the dates, but again the section states that the dates must not be more than 90 days after the vacancies occurred. Although section 132 of the Act allows ZEC to change the dates, ZEC cannot extend polling beyond the constitutionally fixed time-limit of 90 days. In any event, if ZEC does change the dates of a by-election under section 132 it must give notice of the change in the Gazette and in a newspaper. ZEC has not given such notice of its decision to suspend all by-elections.
Was ZEC’s Action Lawful?
The answer is not entirely clear-cut, but in the light of what we have said above it is probably no: ZEC could not lawfully suspend electoral activities until the Covid-19 epidemic is over.
ZEC probably believed the suspension was necessary to prevent the epidemic getting out of hand. If so, its belief was by no means unreasonable. Combating the epidemic requires everyone to limit personal contact, and the process of voting necessarily involves citizens assembling at polling stations and coming into contact with other people. There is a real danger that elections will increase Covid-19 infections.
Necessity is a ground on which people and institutions can be excused from complying with the law, but for obvious reasons the law carefully circumscribes it. Before one can rely on necessity as a reason for breaching the law it must be shown:
- that there was a real and immediate danger, and
- that the danger was not one that the law says must be endured, and
- that the step taken [in this case, suspending elections] was the only reasonable way of avoiding the danger, and
- that the interest infringed [in this case, the right to participate in elections] was not greater than the interest protected (public health).
There is little difficulty with the first two of these: Covid-19 is a real and present danger which no one is obliged to endure. But the other two are more debatable.
Suspending elections is certainly one way of avoiding the risk of infection occasioned by the electoral process, but it is probably not the only one. Social distancing at polling stations, temperature testing and the wearing of face masks may serve to keep the risk within reasonable levels. Other countries have taken the risk of holding elections, or are about to do so: South Korea has held a general election without increasing infections and so have Israel, Ireland and Mali among others; Guinea and Cameroon re-ran some parliamentary elections and Malawi is about to re-run its presidential election. With all these examples it cannot be said with any certainty that the drastic step of suspending all electoral activity was the only reasonable way of averting the danger of infection.
Suspending elections, furthermore, arguably infringes a greater interest than it is intended to uphold. The right infringed, as we have said above, is the right to participate in regular elections, a right which is at the core of democracy and a fundamental value of our Constitution. Public health is certainly very important and the Government has a clear duty to protect people, so far as it can, against life-threatening diseases; but is public health a more important national value than democracy itself? It is not obviously so.
In short, necessity is a shaky basis, to put it mildly, on which to justify ZEC’s suspension of all electoral activities.
Are there any other justifications?
Prohibition of gatherings
It might be argued that the suspension is necessary because public gatherings of more than 50 people are prohibited under the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order (SI 83 of 2020), and electoral activities necessarily entail people gathering in public, whether to attend political rallies or to cast votes at polling stations. One difficulty with this argument is that ZEC suspended electoral activities on the 25th March, before SI 83 of 2020 was published. Another is that statutory instruments made under the Public Health Act cannot override a mandatory provision of the Constitution which, as we have said above, requires by-elections to be held within a 90-day period.
Our conclusion is that ZEC probably acted unlawfully when it suspended all electoral activities until the end of the Covid-19 epidemic.
Even if the suspension was legally correct, we think that ZEC went about it the wrong way. The chairperson announced it, presumably with the approval of her fellow commissioners, but her announcement was not followed up with an official notice in the Gazette or a newspaper. And, so far as we are aware, before announcing the suspension she did not consult all the political parties likely to be affected by it.
What ZEC should have done, in our view, was to apply to the Electoral Court for an order declaring that in view of the Covid-19 epidemic it would be lawful to suspend all electoral activity until the danger had passed. If ZEC had done that, the court could have clarified the legal position after giving all parties an opportunity to express their views.
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