Court name
Supreme Court of Zimbabwe
Case number
SC 100 of 2005
Constitutional Application 22 of 2005

Madzingo and Others v Minister of Justice Legal and Parliamentary Affairs and Others (22/0) (SC 100 of 2005, Constitutional Application 22 of 2005) [2005] ZWSC 100 (22 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 100
















REPORTABLE
ZLR (89)


Judgment
No. SC 100/05


Constitutional
Application No. 22/05








(1) JEFTA
MADZINGO (2) FARAYI MARUZANI (3) EMILY TSUNAI
MADAMOMBE (4) MATTHEW NYASHANU (5) MAKUSHA
MUGABE
(6) BRIAN MAKUZVA (7) LINCOLN MAKOTORE





v





(1)
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY
AFFAIRS (2) THE REGISTRAR GENERAL (3)
THE
ELECTORAL SUPERVISORY COMMISSION (4) THE
ATTORNEY-GENERAL








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA  JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA


HARARE,
FEBRUARY 23, 2005








H
Zhou
, for the
applicants





E
Jena
, for the
respondents








MALABA
JA: At the conclusion of hearing full argument in this case from
counsel for the applicants and counsel for the respondents
we
dismissed the application with no order as to costs and indicated
that reasons for the decision would follow in due course.
These are
they –





The
application for redress was made by the applicants in terms of s
24(1) of the Constitution of Zimbabwe (“the Constitution”)
which
gives any person who alleges that the Declaration of Rights has been,
is being or is likely to be contravened in relation to
himself the
right to apply to the Supreme Court for redress. The proceedings
arose out of concern by the applicants that no mechanism
had been
established in the United Kingdom where they resided for taking their
votes in the forthcoming election of Members of Parliament
(“the
election”) fixed for 31 March 2005.





The
applicants are citizens of Zimbabwe living in the United Kingdom
where they are employed. They left the country of their own
accord.
They have not stated in their affidavits for how long they have
been living in the United Kingdom. It is not in dispute
that before
leaving Zimbabwe each applicant had registered on the voters’ roll
for the constituency in which he or she resided.
The names of the
respective constituencies for which the applicants were enrolled are
not given. On the basis of the fact that
their names were on the
voters roll for their respective constituencies the applicants
alleged that they were entitled to cast their
ballots in the election
whilst in the United Kingdom. They alleged that they will be unable
to attend personally on polling day
at polling stations in the
constituencies for which they enrolled to cast their votes.





It
is common cause that no machinery has been established in the United
Kingdom to take votes of persons in the applicants’ position.

Assuming that the respondents are responsible for the conduct of the
election, the applicants alleged that failure by the respondents
to
put up facilities in the United Kingdom or provide some mechanism to
take their votes in the election constitutes a hindrance
to them from
participating in the election and is likely to violate freedom of
expression, guaranteed to them under s 20(1) of the
Constitution.
They also alleged that failure by the respondents to put up
mechanisms to record their votes in the foreign country
is likely to
violate their right to freedom of assembly and association (s 21)
and the right to freedom of movement
(s 22). They
therefore claim an order directing the respondents to make the ballot
in the election available to them in the foreign
country where they
reside. This they call the “diaspora vote”.





The
relief sought by the applicants is in the form of an order to the
effect that -






1. The hindrance of the
applicants from participating in Parliamentary and Presidential
elections is inconsistent with the provisions
of ss 20, 21 and 22 of
the Constitution of Zimbabwe and is accordingly declared null, void
and of no effect.







2. The respondents be and are
hereby directed to set up all the necessary structures to allow and
enable the applicants to vote in
the forthcoming Parliamentary
elections and all future general elections thereafter in the United
Kingdom.





3. The
respondents pay the costs of this application.





Mr
Zhou,
for the applicants, did not advance in Court the contention that the
alleged conduct of the respondents in failing to establish
mechanisms
to take the applicants’ votes in the United Kingdom is likely to
violate their rights guaranteed under ss 21 and 22
of the
Constitution. He nonetheless pressed on with the argument that the
alleged conduct of the respondents is likely to violate
the
applicants’ freedom of expression. The basis of the contention is
that freedom of expression includes the right to vote.
It is said
that the casting of a ballot is an expression of a preference of a
candidate by a voter.





The
respondents opposed the application. The first respondent is
responsible for the administration of the Electoral Act [
Cap
2:13
] (“the Act”)
in terms of which the election is to be conducted. His position is
that the Government is not under any legal
duty to establish
mechanisms in foreign countries to take votes of its citizens who
left Zimbabwe of their own accord and are unable
on the polling day
to attend personally to cast their ballots at polling stations in the
constituencies for which they are enrolled.





The
second respondent is the Registrar General of Voters. His stance is
that he has no power under the Act to do what the applicants
ask the
Court to order him to do. The Act entrusted the Zimbabwe Electoral
Commission with the responsibility for the conduct of
the election.
He said that body is not a party to the proceedings.





The
third respondent’s position is also that it has no power under the
Act to do what the applicants want the Court to order it
to do. It
said that its duties in an election are under the Act limited to the
accreditation of election monitors and observers,
the making of a
report after every election on the conduct of that election stating
whether or not the result of the election represented
the will of the
electorate and giving advice upon request to the Electoral Commission
on any matters relating to the registration
of voters and the conduct
of elections.





The
third respondent was cited as an intervenor in terms of s 24(6) of
the Constitution. It appears to me that the Attorney-General
should
not have been cited as a party to these proceedings. The question
raised by the applicants for determination is not whether
any law is
in contravention of the Declaration of Rights. Section 24(6) of the
Constitution gives the Attorney- General the right
to be heard by the
Court and therefore be cited if in any proceedings it falls to be
determined whether any law is in contravention
of the Declaration of
Rights. The question arising for determination in these proceedings
is whether the alleged failure by the
respondents to set up
mechanisms to take the applicants’ votes in the election in the
United Kingdom where they reside is likely
to violate their freedom
of expression enshrined in s 20(1) of the Constitution. The
allegation is not that any provision of the
statute contravenes s
20(1) of the Constitution. The application proceeds on the
assumption that there is a constitutionally valid
law requiring the
respondents to do what the applicants claim as relief in terms of s
24(1) of the Constitution.





The
Attorney-General, nonetheless, went into the merits of the
application. He denies that the applicants have been excluded from
participating in the election. He said they are free to come back
to Zimbabwe on polling day and cast their ballots at the polling
stations in the constituencies for which they enrolled. The
Attorney-General cited the case of
Registrar
General of Elections & Ors v Morgan Tsvangirai

SC 12/02 as authority for the proposition that the electoral
authorities are not under a legal duty to provide machinery in
foreign
countries to record votes of Zimbabwean citizens registered
as voters who live there and are unable to attend personally at
polling
stations in their constituencies on polling day to cast their
ballots except in respect of the category of persons specified under
s 71 of the Act.





The
question for determination is whether the applicants have established
the allegation that the respondents are under a legal duty
to
establish machinery in the United Kingdom to take their ballots in
the election. In other words does freedom of expression entrenched
under s 20(1) of the Constitution impose a positive duty on the State
to take measures to ensure that a registered voter casts his
or her
vote in a foreign country where he or she is resident on the polling
day if he or she is unable to attend personally at a
polling station
in the constituency for which he or she is enrolled? It is
necessary to set out the provisions of the Constitution
and the Act
which are relevant to the determination of the question.





Section
20(1) of the Constitution guarantees freedom of expression in these
words:





“(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
58 of the Constitution provides that:







“(1)
… .



(2) … .


(3) The
qualifications and disqualification for registration, as a voter and
for
voting at elections
shall be as prescribed in Schedule 3 and subject thereto, by the
Electoral Law
.





(4) An
Act of Parliament shall make provision for the election of members of
Parliament, including elections for the purpose of filling
casual
vacancies.” (the underlining is mine for emphasis).





Section
3 of Schedule 3 of the Constitution provides that:






“(1) Subject
to the provisions of this paragraph and to such residence
qualifications as may be prescribed in the Electoral Law for
inclusion on the electoral roll of a particular Constituency, any
person who has attained the age of eighteen years and who –








(a) is
a citizen of Zimbabwe; or





(b) since
the 31
st
December 1985, has been regarded by virtue of a written law as
permanently resident in Zimbabwe; shall be qualified for registration
as a voter on the common roll.





(2) …





(3) Any
person who is registered on the electoral roll of a Constituency
shall be entitled to vote at an election which is held for the
Constituency
.” (the
underlining is mine for emphasis)








Section
60(2) of the Constitution provides that Zimbabwe shall be divided
into one hundred and twenty common roll constituencies.
Under s
113(1) of the Constitution the “Electoral Law” is defined to mean
the Act of Parliament having effect for the purposes
of s 58(4) which
is for the time being in force. It is common cause that the Act of
Parliament in force for the purposes of making
provision for the
election is the Electoral Act [
Cap
2:13
] which came into
force on 1 February 2005. An examination of the law shows that
whilst the applicants have a genuine complaint
as registered voters
there is no provision in the Constitution and the Act on the basis of
which their application can be granted.





The
effect of subs (3) and (4) of s 58 of the Constitution is that what
is prescribed in Schedule 3 of the Constitution and the
provisions of
the Act constitutes a self-contained code on the rights and duties
arising from the election. One does not have to
look outside these
provisions for law governing matters relating to elections in
Zimbabwe.





Section
56(1) of the Act also provides that at an election for a member of
Parliament every voter registered on the voters roll
for the
constituency concerned shall be entitled to vote. Does this
provision mean that every registered voter has a right to cast
his or
her ballot wherever he or she is on the polling day and that the
State is obliged to provide mechanisms to take the ballot?





It
is important to appreciate the fact that there is no express
provision in the Constitution and the Act requiring electoral
authorities
to establish machinery in foreign countries to record
votes of Zimbabwean citizens registered as voters on voters rolls for
constituencies
who live in those countries. The provisions that are
there require a registered voter to attend personally on polling day
to cast
his or her ballot at a polling station in the constituency
for which he or she is enrolled. The requirement applies to every
registered
voter and its object is to give effect to the entitlement
to vote provided under s 3 of Schedule 3 of the Constitution. The
only
exception to this general rule is created in s 71 of the Act.





For
the purposes of enabling registered voters to cast their ballots, s
51 of the Act requires the constituency elections officer
to
establish the polling stations at places convenient to the voters but
within the boundaries of the constituencies. Section 56(3)
of the
Act requires that a ballot paper be handed to a person who has proved
to the satisfaction of the presiding officer at a polling
station
that he or she is registered as a voter on the voters roll for the
constituency concerned by producing a voter’s certificate.
The
presiding officer is required under s 56(2) of the Act to put such
questions to an applicant for a ballot paper as he considers
necessary to ascertain whether or not the applicant is registered as
a voter on the voter’s roll for the constituency concerned.
It is
clear from the provisions of the Act that the overriding object of
the law of elections was to make the ballot available
to registered
voters who attended personally at polling stations to cast their
votes.





Under
s 71 of the Act a person who on application to the Chief Elections
Officer can show that he or she has good reason to believe
that he or
she will be absent from the constituency or unable to attend at the
polling station personally by reason of being -






(a) on duty as a member of a
disciplined force or as an electoral officer or monitor;






(b) absent from Zimbabwe in the
service of the Government of Zimbabwe; or






(c) a spouse of a person referred
to in para (a) or (b),





may
vote by post.





A
person entitled to postal voting is deemed to be resident in the
constituency for which he or she enrolled as a voter. If the
Chief
Elections Officer is not satisfied that the applicant is entitled to
receive a postal ballot paper he is required under s 73
of the Act to
send the person a notice to the effect that he is not so satisfied
and that the applicant must attend personally at
a polling station on
the polling day to cast the ballot. The statute makes it clear that
absentee voting is available to the few
specific categories of
registered voters living in foreign countries. These are of persons
who are absent from Zimbabwe in the
service of the Government of
Zimbabwe or members of the disciplined forces who are on duty and
their spouses.





There
is no provision in the Constitution and the Act to the effect that a
registered voter in the applicants’ position who is
unable because
of the nature of his or her occupation, service or employment to
attend personally on the polling day to cast the
ballot at a polling
station in the constituency for which he or she is enrolled can vote
through some mechanism of absentee voting.





Parliament
has power under s 58(3) of the Constitution to prescribe conditions
for the exercise of the right to vote. The right
to vote includes
the right to cast the ballot and have it counted at the election.
Parliament has power under s 58(4) of the Constitution
to enact a law
governing the election of members of Parliament. It has a duty
therefore to ensure that the law it enacts is operative
and
effective. The assumption is that in creating absentee voting by
post as an exception to the general rule for the categories
of the
registered voters specified under s 71, the legislature was aware of
the classes of registered voters in the applicants’
position but
decided that extending the exception to them would not be for the
common good. Parliament did not find it necessary
in the exercise
of its powers to treat the applicants as a special class of persons
for the purposes of the exercise of the right
to vote.





The
applicants did not challenge the constitutional validity of the
provisions of the Act requiring registered voters to attend
personally at polling stations in their constituencies to cast their
ballots. That attitude is not surprising in the light of the
power
given to Parliament in s 58(4) of the Constitution. They also did
not allege that failure by the legislature to create an
exception in
their case in the form of absentee voting was unconstitutional. It
is not the applicants’ case that failure by the
respondents to
establish a mechanism to take their votes in the United Kingdom
deprives them of the right to vote as prescribed under
s 3 of
Schedule 3 of the Constitution.





In
McDonald v
Board of Election
Commissioners of Chicago

394 US 802 plaintiffs who were awaiting trial as inmates of the jail
of Cook County Illinois and were unable to attend personally
at the
polls to cast their ballots challenged the constitutionality of a
statute which made absentee balloting available to certain
persons
absent from their county of residence for any reason but did not make
the same mechanism available to take their votes.
They alleged that
the statutory scheme violated the equal protection clause of the
Fourteenth Amendment of the Constitution of the
United States of
America.





The
Supreme Court of the United States held that the statute did not
disenfranchise the plaintiffs. It said that what was at stake
was a
claimed right to receive absentee ballots rather than the right to
vote. The court noted the fact that the absentee voting
provisions
of the statute were designed to make voting more available to some
groups who could not get to the polls but did not in
themselves deny
the appellants the exercise of the franchise.





CHIEF
JUSTICE WARREN, delivering the opinion of the court, said at pp 807,
809, 810, ….





“States
have long been held to have broad powers to determine the conditions
under which the right of suffrage may be exercised ….





Legislatures
are presumed to have acted constitutionally even if source materials
normally resorted to for ascertaining their grounds
for action are
otherwise silent …





With
this much discretion, a legislature traditionally has been allowed to
take reform ‘one step at a time, addressing itself to
the phase of
the problem which seems most acute to the legislative mind’; and a
legislature need not run the risk of losing an
entire remedial scheme
simply because it failed, through inadvertence or otherwise, to cover
every evil that might conceivably have
been attacked.





Illinois
could, of course, make voting easier for all concerned by extending
absentee voting privileges to those in appellants’
class. Its
failure to do so, however, hardly seems arbitrary, particularly in
view of the many other classes of Illinois citizens
not covered by
the absentee provisions, for whom voting may be extremely difficult,
if not practically impossible.”





In
Registrar General of
Elections
case (supra)
the respondent sought to have the Registrar General compelled to set
up all the necessary mechanisms to enable registered voters
who would
be outside their constituencies on the polling day in the
Presidential election to vote. Although the correct interpretation
of s 28(2) of the Constitution was at issue in that case the
substance of the relief sought was the same as the one sought by the
applicants.





The
Court held that the failure by the Registrar General of Elections to
put up mechanisms to take votes of registered voters who
would not be
in their constituencies on the polling day did not constitute a
denial to those voters of their right to vote nor was
it
unconstitutional.





CHIDYAUSIKU
CJ said:





“It
is common cause that the first appellant, in his capacity as
Registrar General of Elections, has directed that each voter on the
common roll shall vote in his or her constituency in the forthcoming
Presidential election. The respondent is not in any way challenging
this decision. It is the failure of the first appellant to make
adequate and reasonable arrangements for all voters registered
on the
common roll who would not be in their constituencies on the polling
days which he alleges is unconstitutional. Providing
for as many
people to vote as possible is highly commendable. Failure to
provide in the manner alleged is, however, not unconstitutional.

The contention that the failure to provide the above facility amounts
to the disenfranchisement of a voter is simply untenable.
The voter
does not lose his right to vote. He is disabled from exercising the
right by being in a wrong constituency at the time
he is expected to
vote. The disability would not, in the circumstances, have resulted
from any action by the Registrar General."





I
note the fact that the applicants have alleged that failure by the
respondents to put up mechanisms to record their votes was
likely to
contravene their freedom of expression guaranteed under s 20(1) of
the Constitution. The contention is that freedom of
expression
includes the right to vote. Underlying the applicants’ argument
is the assertion that the casting of a ballot is an
expressive
activity, the content of which conveys a meaning to the effect that
the candidate chosen is the suitable person to represent
the voter in
Government.





The
first step to be taken is to determine whether the casting of a
ballot may properly be characterised as conduct falling within
“freedom of expression”. In
Irwin
Toy Limited v Quebec

(AG) (1989) 39 CRR 193 McINTYRE JA writing for the majority in the
Supreme Court of Canada at p 228 said that:





“‘Expression’
has both a content and a form, and the two can be inextricably
connected. Activity is expressive if it attempts to
convey meaning.
That meaning is its content.”






It
is not in dispute that the casting of a ballot is an expressive
activity. The ballot forms the content of that activity and
conveys
a meaning. By a ballot a voter makes an expression of his or her
preference among the candidates. In
United
States v Classic
313
US 299 MR JUSTICE STONE at p 318 said that:





“From
time immemorial an election to public office has been in point of
substance no more and no less than the expression by qualified
electors of their choice of candidates."








The
question is whether the casting of a ballot is part of the conduct
falling within the sphere of activities intended by the framers
of
the Constitution to be constitutionally guaranteed and entrenched
against infringement by the State under the “freedom of
expression”.





In
my view the contention that freedom of expression as guaranteed under
s 20(1) of the Constitution includes the casting of a ballot
is an
ill- conceived attempt to elevate an unentrenched right to the status
of a fundamental human right. That misconception is
due to lack of
appreciation of the meaning of freedom of expression and the
structure of the Constitution. It is clear for the
reasons that
follow that there is no legal basis on which the applicants’ claim
as pleaded can be granted.





Freedom
of expression denotes the freedom to communicate orally, in writing,
print, by broadcasting or otherwise, statements or views
on any
matter. In
R v Zundel
(1987) 29 CRR 349 the court, in dealing with the Canadian
jurisprudence on the subject of freedom of expression, concluded thus
at
p 365:





“When
determining the limits of freedom of expression, a distinction must
be drawn at the outset between ‘rights’ and ‘freedoms’.
A
‘right’ is defined positively as what one can do. A ‘freedom’,
on the other hand, is defined by determining first the
area which is
regulated. The freedom is then what exists in the unregulated area
– a sphere of activity within which all acts
are permissible. It
is a residual area in which all acts are free of specific legal
regulation and the individual is free to choose.”





Rights
are said to impose a corresponding duty or obligation on another
party to ensure the protection of the right in question, whereas
“freedoms” involve an absence of interference. Freedom of
expression as guaranteed under s 20(1) of the Constitution recognises
a claim by any individual against the State to non- interference with
the enjoyment of the activities stated therein.





In
Allman v Northwest
Territory
144 DLR (3d)
467 (SC) the appellant challenged the constitutionality of a three
year residency requirement contained in a Territorial
Plebiscite
Ordinance that prevented him from voting in an upcoming referendum.
The trial judge stated that the basic difference
between a “right”
and a “freedom” consisted in the nature of the claims which each
of these terms describes in relation to
the “State”. He
observed at p 479 that:





“The
‘freedom of thought, belief, opinion and expression’ referred to
in para 2(b) of the charter on which the applicants rely
is therefore
to be understood as recognition of a claim which anyone may make
against the State … to non-interference in matters
of thought,
belief, opinion and expression.





The
applicants’ complaint in these proceedings … falls instead into
the class of a ‘demand for State intervention’ to provide
access
to the means of expression available to those designated as voters by
the Ordinance. That sort of demand … is to be classed
as a claim
of ‘right’, such as the right to vote in s 3.”





The
right to vote as prescribed under s 3 of Schedule 3 of the
Constitution was created and conferred upon the citizens and
permanent
residents who had attained the age of eighteen and were
registered on the common voters roll by positive law. The right
came into
existence at the time the Constitution was enacted. It
was prescribed as a distinct or free standing right from freedom of
expression
which was at the same time protected under s 20(1) of the
Constitution as a fundamental human freedom recognised as having been
in
existence at the time the Constitution was enacted.





As
a matter of law, the right to vote was provided as a distinct right
different from freedom of expression. The framers of the
Constitution clearly placed the casting of a ballot within the
regulated sphere of activities, thereby removing it from the sphere
of unregulated conduct guaranteed as freedom of expression. The
right to vote having been expressly provided for under the
Constitution,
cannot be sought to be established by implication from
freedom of expression.





The
right to vote is a creature of legislation and the conditions for its
exercise are a result of a State intervention. The casting
of a
ballot is clearly a regulated activity. The applicants are making
claim to a mechanism that would make the casting of the
ballot easier
and convenient to them. Theirs is not a claim of non-interference
by the State but a demand for State assistance
to make the exercise
of the right to vote easier. The claim has nothing to do with the
freedom of expression, the enforcement of
which is protected against
infringement by the State under s 20(1) of the Constitution.





Even
under international human rights instruments the “right to vote”
is proclaimed as a distinct and separate right from freedom
of
expression. In the Universal Declaration of Human Rights (1948) the
right to freedom of opinion and expression is recognised
under
Article 19 whilst the right to vote is proclaimed in Article 21.
The International Covenant on Civil and Political Rights
(1966)
recognises the right to freedom of expression under Article 19,
whilst the right to vote is under Article 25. Constitutions
of
other countries adopt the same framework. The Constitution of the
Republic of South Africa (1996), for example, provides for
the right
to freedom of expression in s 16(1), whilst the right to vote in
elections for any legislative body established in terms
of the
Constitution is proclaimed under s 19(3)(a).





The
clear distinction between the right to vote as prescribed under s 3
of Schedule 3 of the Constitution and freedom of expression
as
guaranteed under s 20(1) of the Constitution should not be blurred,
as the two values serve different purposes. The primary
purpose of
the right to vote is to secure for a voter effective representation
in government. The purposes of freedom of expression
on the other
hand have been stated as being -


1. seeking
and attaining the truth;



2. participation in social and
political decision-making; and


3. cultivation
of diversity in forms of individual self-fulfilment and human
flourishing in an essentially tolerant environment not
only for the
sake of those who convey a meaning but also for the sake of those to
whom it is conveyed.





See
Carter v Saskatchewan
(AG) (1992) 5 CRR 1 at p 9;
Irwin
Toy supra
at p. 234;
In re Munhumeso &
Ors
1994(1) ZLR 49(S)
p 57 A.





As
already pointed out, in claiming the right to cast a ballot in the
election as freedom of expression the applicants sought to
elevate
the right to vote to a constitutionally guaranteed and entrenched
right. The right to vote is not one of the fundamental
human
rights in our Constitution. It is true that Zimbabwe is a
constitutional democracy and that the right to vote is of the essence
of a democratic system of Government. In
Haig
v Canada
16 CRR 193
CORY J was of the view that the right to vote was synonymous with
democracy. He said at p 227:





“All
forms of democratic government are founded upon the right to vote.
Without the right, democracy cannot exist. The marking
of a ballot
is the mark of distinction of citizens of a democracy. It is a
proud badge of freedom.”





Notwithstanding
its importance to democracy the right to vote is, anomalously, not
guaranteed as a fundamental human right. The
framers of the
Constitution were influenced at the time by legal thinking on the
nature of voting rights. In
Hipperson
v Electoral Officer

[1985] 2 All ER 456 SIR JOHN DONALDSON MR remarked on the nature of
the right to vote at p 458C:





“Voting
rights lie at the root of Parliamentary democracy. Indeed many
would regard them as a basic human right. Nevertheless they
are not
like the air we breathe. They do not just happen. They have to be
conferred or at least defined and the categories of
citizens who
enjoy them have also to be defined. Thus no one would expect a
new-born baby to have voting rights or that citizens
could vote in
all constituencies or in that of their unfettered choice.”








In
1982 REDDY J made the observation in the case of
Jyoti
Basu v Bebi Ghosa

[1982] 3 SCR 318 that under the Indian Constitution:





“A
right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a common law
right.”








On
the other hand freedom of expression has been recognised and
guaranteed as one of the fundamental human rights to which every
human being is by nature entitled wherever and whenever born. It is
a guaranteed birthright. Many countries have since guaranteed
the
right to vote as a fundamental human right. Examples of such
countries are Namibia, South Africa, Canada and the United States,
to
name but a few.





It
was improper for the applicants to seek to invoke a guarantee under s
20(1) of the Constitution to enforce a right not constitutionally
protected as a fundamental human right. Theirs was not a claim for
freedom or liberty.





The
last reason why this application must fail is that the respondents
are not under any legal duty to conduct the election. They
are not
responsible for the conduct of the election. If they were
responsible for the conduct of the election they would still
be
acting lawfully in not providing the applicants with the machinery to
record their ballot. This is because there is no law imposing
such
a duty on any authority responsible for the conduct of elections.
In the circumstances the Court would not have power to order
the
respondents to act unlawfully. The provisions of the law properly
construed do not bear out the relief claimed by the applicants.





The
application was accordingly dismissed with no order as to costs.











CHIDYAUSIKU
CJ: I agree.














SANDURA  JA: I
agree.














ZIYAMBI
JA: I agree.















GWAUNZA JA: I agree.








Kantor
& Immerman
,
applicants’ legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondents’ legal practitioners