ZIMBABWE: CHALLENGING LIMITS ON VOTER EDUCATION

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Salc : Staff Writer

Veritas v. Zimbabwe Electoral Commission & 2 Others

SALC is providing support to Veritas, a non-profit organisation based in Zimbabwe which provides publicly accessible information on the work of the Parliament of Zimbabwe and the laws of Zimbabwe. In this case, SALC and Veritas are challenging provisions of the Electoral Act which impose limitations on who can provide voter education to the public. The case is being challenged before the High Court.

Of the impugned provisions, sections 40C(1)(g) and 40C(2) of the Electoral Act require that all voter education materials be furnished by or approved by the Zimbabwe Electoral Commission (ZEC). However, political parties, who by their nature are partisan, are exempted from this requirement. Sections 40C(1)(h) and 40F also prohibit the use of foreign funds to conduct voter education. However, under the scheme, ZEC is allowed to receive foreign donations for the purpose of voter education and then disperse these funds to third parties.

The legal challenge asserts that these limitations violate the fundamental right to freedom of expression in that they create a virtual state monopoly on speech and constitute unjustifiable prior restraint. Although, the right to freedom of expression is not absolute, these restrictions cannot be justified in a democratic society. Additionally, the provisions also violate the general public’s rights to receive information and ideas, their right to equality, their right to a free and fair elections and their right to make free and informed political choices.

The challenge was filed on 19 December 2017. The hearing was held on 18 June 2018 before Justice Tagu.

In May 2018, the Zimbabwean Parliament passed the Electoral Amendment Act, 2018 which repealed section 40F of the Electoral Act, but not 40C(1)(h). 40C(1)(h) refers to 40F. Now that 40F has been repealed, 40C(1)(h) is rendered meaningless. At the hearing, both the Applicant and 2nd and 3rd Respondents agreed that the Court should strike down 40C(1)(h) given the current lacuna in the law. However, the government continued in its support of the limitations imposed by sections 40C(1)(g) and 40C(2).

The case was dismissed on the 27th June 2018 with the court refusing to consider the merits of the case. The court dismissed the application claiming that Veritas had no legal standing the bring the matter.

High Court papers:
Application and Founding Affidavit
Application Annexure A – AUEOM Report on Zimbabwe 2013
Application Annexure B – Report of the Portfolio Committee on Justice on the State of Preparedness of ZEC to Hold By-Elections
Application Annexure C – Veritas letter to ZEC
Application Annexure D – ZEC reply to Veritas Letter
1st Respondent’s Notice of Opposition
2nd and 3rd Respondent’s Notice of Opposition
Applicant’s Answering Affidavit
Applicant’s Heads of Argument
1st Respondent’s Heads of Argument
Judgment