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Dabengwa new register bid fails
Daniel Nemukuyu Harare Bureau
THE Zimbabwe Electoral Commission (Zec) has unfettered discretion to use or not to use the voters’ roll compiled by the Registrar General because there is no law compelling the commission to craft a new register from scratch, the Electoral Court has ruled.
Justice Chinembiri Bhunu made the remarks in a case in which Zapu leader Dumiso Dabengwa was seeking to compel Zec to craft its own voters’ roll without relying on the previous one compiled by the Registrar General.
Dabengwa also wanted Zec to immediately take over from the Registrar-General’s Office duties such as registering voters, compiling its own voters’ roll, keeping and maintaining the voters’ roll and ensuring that the public has access to inspecting the voters’ roll as provided for by the Constitution.
Justice Bhunu partially granted an order sought by Dabengwa and directed Zec to forthwith discharge its mandate in accordance with the available resources.
He made the order after Zec admitted that since August 2013, it had not been carrying out its mandatory obligations in terms of the Constitution due to limited resources.
Justice Bhunu’s order said: “It’s accordingly ordered that the Zimbabwe Electoral Commission shall forthwith discharge its constitutional and statutory functions in a way it deems best suited for the purpose and within the scope and confines of the available resources.
“Each party has been partially successful, there shall be no order as to costs.”
In a landmark judgment that is set to save the government of over $150 million in crafting an entirely new voters’ roll, Justice Bhunu said he went through the Constitution and that it does not bar Zec from using or improving on an already existing voters’ roll.
“I’ve carefully gone through the Constitution and the relevant legislation and I’ve not found anywhere where the law requires the commission to compile an entirely new voters’ roll without reference to the previous voters’ roll compiled by the by the then Registrar General of Voters,” he said.
“In short, the lawmaker has not prescribed any such mode of compilation of the voters’ roll. Had the legislator sought to prohibit the commission from relying on previous voters’ rolls compiled by the Registrar General, it would certainly have said so in clear and unambiguous terms.”
The judge said Zec had unfettered discretion to use the old voters’ roll, develop it or not to use it at all.
“It is a basic tenet of our law that what is not prohibited is permissible at law. That being the case, the commission is at large and has an unfettered discretion to use or not to use previous voters’ rolls in its registration and compilation of current voters’ rolls…”
Justice Bhunu also understood Zec’s challenges in carrying out its mandate and directed that the commission should carry out its functions in accordance with the available 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,” the judge said.
“What this means is that the commission is obliged to carry out its constitutional function in accordance with the available resources. It is an established principle of our legal system that the law does not compel the impossible. The commission will not be expected to carry out functions beyond what is feasible within the confines of available resources.”
Dabengwa wanted Zec to immediately take over duties of voter registration and maintaining the voters’ roll in line with the new Constitution.
He also wanted Zec to make available to the political parties and candidates soft or hard copies of the voters’ roll on request.
Online Reporter