10 | Zimbabwe Rule of Law Journal
independent constitutional body, ZEC is not bound by the Declaration of Rights. The fact that
ZEC is an independent constitutional commission does not exonerate it from being bound by
the Declaration of Rights or the Constitution. A Constitution prescribes how the State shall
be organised or structured, creates State institutions, confers power to those institutions and
prescribes rules, principles and values through which the assigned power shall be exercised
by those institutions.38 ZEC is guaranteed independence from being pressured by other State
institutions or non-State actors but is still subject to law and Constitutional provisions. Only
the judiciary, when applying the law, has the authority to direct how ZEC shall operate.39
Therefore, there should not be doubt that ZEC is an institution of the State, which is required
to respect, protect, promote and fulfil the rights enshrined in the Constitution.
Furthermore, ZEC is bound by the Declaration of Rights given that it is a Commission created
to ensure the effective realisation of the rights enshrined in the Declaration of Rights. ZEC’s
mandate is to organise, supervise and conduct elections in a manner that is consistent with
the principles set by the Constitution, in order to fulfil the right to a free and fair election40
as enshrined in s 67 (1) (a). As will be shown later, the right to a free and fair election is not
a right which can be exercised in isolation as it is closely related and sometimes dependent
on other rights such as the right to access certain information which enables citizens to
cast their votes freely and have those votes counted fairly. ZEC is thus not only bound by
the right to vote but by the entire Declaration of Rights, to respect, protect, promote and
fulfil the relevant rights enshrined therein, which include the right of access to information
held by the State.
The notion that ZEC is bound by the rights enshrined in the Declaration of Rights is further
supported by s 233 (a) and (c), which binds ZEC to support human rights and promote
I derive this definition from Gorge Devenish’s discussion of constitutionalism in A Commentary on the South African Bill
of Rights (1999) at 16-17
39
See s 165, read together with s 69 of the Constitution of Zimbabwe, 2013
40
As well as other rights enshrined in the Declaration of Rights.
38
Select target paragraph3
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