12 | Zimbabwe Rule of Law Journal Commission43 held that: “The clear intention of the Legislature in s 61 (5) of the Constitution [1979] was to ensure ZEC’s independence provided it was operating within the law. It has to exercise its functions as provided by subs (4) for it to enjoy that immunity. It cannot for example conduct elections unfairly, outside the law, and which are not free and fair, but on being sued insist that the courts have no jurisdiction over it. The court would in such circumstances have jurisdiction to hear and determine complaints against ZEC.” This case was decided in 2008 in terms of the former Constitution of Zimbabwe,44 which created ZEC as an independent constitutional body. However the Court insisted that the independence is not from the law and ZEC was subject to the jurisdiction of the Courts. Given that the 2013 Constitution has maintained a similar legal principle of subjecting all State institutions to the principle of the rule of law45 and to honour the constitutional rights,46 the courts must be able to follow a similar approach to hold ZEC accountable on the basis of the Constitution’s Declaration of Rights. The argument in favour of ZEC’s accountability on the basis of the Declaration of Rights is well supported in comparative jurisdictions that have persuasive force in the Zimbabwean legal system.47 In Kenya, in the case of Raila Odinga v the Independent Electoral and Boundaries Commission,48 (IEBC) the IEBC was petitioned by a contestant of the State Presidential elections for having failed to maintain a credible national voters’ roll.49 On the question of whether the IEBC was bound by the Bill of Rights or not, the court made the following indication: “[The] IEBC is a constitutional entity entrusted with specified obligations, to organize, 43 44 45 46 47 48 49 HH-37-08 at 3 The Lancaster House Constitution, 1979 Section 3 (1) (b) of the Constitution of Zimbabwe, 2013 Section 44 ibid. By virtue of section 46 (1) (e) ibid. Petition No. 5 of 2013, [2013] eKLR See Raila Odinga v the Independent Electoral and Boundaries Commission, Petition No. 5 of 2013, [2013] eKLRat 10