Makarau v Mudede: Battle for the Voters’ Roll

By Dr Alex T. Magaisa

So we wake up to read that Gideon Gono, former Governor of the Reserve Bank of Zimbabwe, will not be a Senator any time soon because he is not registered to vote in Manicaland. We really care little whether or not Gono becomes a Senator.

The truth is, it really won’t change anything in our lives as ordinary people. He’s just another heftily privileged fellow who happened to drop off the first class section of proverbial gravy train and is now hoping to catch another lift, albeit in the economy class. What has really caught our attention is ZEC’s new-found assertiveness, boldness and enthusiasm in applying the law and its powers regarding the voters’ roll and voter registration.

For too long, voter registration and the voters’ roll have been jealously monopolised by the Registrar-General, Tobaiwa Mudede, the elderly gentleman who has been in that position for as long as anyone can remember. Notwithstanding the perennial charges that the voters’ roll is a shambles and not fit for purpose, Mudede has kept his ears firmly shut and refused to change.

Last year, in total disregard of the Constitution and the Electoral Law, he failed, neglected or otherwise refused to deliver the electronic voters’ roll, claiming that his computer was broken.

The law requires a searchable and analysable electronic voters roll to be available free of charge to anyone who requests it. Mudede was obstinate. Court judgements ordering its production were not heeded. Amazingly, more than a year later that computer is still broken and no one except Mudede and his acolytes knows where it is and what they have been hiding.

All this time, we wondered where ZEC was. Because, ZEC is the body that, under the new Constitution, is in charge of voter registration and the voters’ roll. They were given that mandate precisely because of the failures and shortcomings of the Registrar-General’s Office and general dissatisfaction with Mudede’s performance.

I sensed in joint consultations last year, that Mudede was fighting very hard to retain his command of these key electoral processes and that Justice Makarau and her team were keen to assert their powers but they were struggling. Now, the battle is unravelling on the public stage.

Zanu PF thought it had registered Gono in Manicaland in December 2013 to meet the legal requirement that for one to be a Senator, he must be registered in any ward in the relevant province. He did so at the Registrar-General’s Office. Now Justice Makarau is saying that was void because at that time Mudede, the Registrar-General no longer had the powers to register voters or to transfer them from one ward to another.

The key point here, which one might have thought would attract headlines of its own, is that Makarau is effectively saying to Mudede, “You overstepped your mandate. You have no power to register voters”. He has just been told by Makarau that he went offside and what he did was illegal. We await Mudede’s response. I suspect he will try to defend his territory.

But then we must turn to Justice Makarau and ask a few questions:

Why, if ZEC says it is now the authority to register voters and maintain the voters’ roll, can it not, at present, register or transfer voters on the voters’ roll? In her letter, Justice Makarau offers an unsatisfactory explanation. She says that there is currently no legal framework for voter registration and therefore, suggests that ZEC is not in a position to execute its constitutional mandate.

That is very strange. It is not long ago that the Electoral Amendment Bill was passed into law. Under the law, ZEC would have made its contributions to that Bill before it became law. Section 157 (4) of the Constitution states as follows:

“No amendments may be made to the Electoral Law, or to any subsidiary legislation made under that law, unless the Zimbabwe Electoral Commission has been consulted …”.

We presume that ZEC was duly consulted by the Minister of Justice in accordance with this constitutional requirement and if it was, why is it that there is no legal framework in the Act for carrying out one of the most elementary constitutional mandates – voter registration?

Was the voter registration issue deliberately omitted or was it merely a case of collective amnesia and oversight on the part of all concerned and therefore, sheer neglect of a constitutional mandate?

Second, would Justice Makarau and ZEC please tell Zimbabweans where the voters’ roll is at present. Do they have it? Or is it still locked up in Mudede’s broken computer? I am aware that there is a case before the constitutional court where a citizen is demanding the release of the electronic voters roll and amazingly, the same ZEC is opposing it!

If Justice Makarau and her team at ZEC are being frustrated by Mudede over taking charge of the voters’ roll and voter registration, then they must say so. Otherwise they are, quite clearly, failing to uphold their constitutional mandate.

Dr Alex T Magaisa studied law at the University of Zimbabwe (LLB) and the University of Warwick (LLM & PhD) in Great Britain. He is a former adviser to the then Prime Minister Morgan Tsvangirai. Dr Magaisa has worked at the University Warwick, the University of Nottingham and is presently based at Kent Law School, the University of Kent. 

You can visit his blog: NewZimbabweConstitution.wordpress.com