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resonates and promote these values16 and, as Zimbabwean courts develop their own
jurisprudence on the right of access to information, they ought to be persuaded by how the
courts in Kenya and South Africa have interpreted this right to give effect to the values of
transparency, accountability and free and fair elections.
Another comparable point between Kenya and South Africa is the creation of independent
electoral bodies17 with a constitutional mandate to ensure the realisation of certain political
rights entrenched in the Bill of Rights, including the right to vote in a free and fair election.18
The Constitution of Zimbabwe creates ZEC to perform a similar constitutional function19 and
Zimbabwean courts, therefore, ought to be persuaded to hold their electoral management
bodies accountable to honour the rights enshrined in the Constitution’s Bill of Rights. Thus,
there are sufficient constitutional similarities between Zimbabwe, Kenya and South Africa
which make it possible to refer to those jurisprudences regarding comparative foreign law
to advance the arguments made in this paper.
Part I: Nature and object of the right of access to information held by the State
Jagwanth and Calland20 have described the right of access to information as a leverage right,
whose purpose is, on one hand, to facilitate the enforcement of public accountability and, on
the other hand, the enforcement of other rights. This notion has been endorsed by various
other authors, for instance, Currie and de Wal argue that the right to access information
originates from the idea that, in an open and democratic society, government should be
transparent and accountable for its actions and decisions, and therefore the public must
have access to the relevant information in order to assess the rationality of Government
decisions.21 In his commentary on the South African Bill of Rights, Devenish asserts that
See ss 3 and 46 (1) (b). Also see Mudzuru v Ministry of Justice, Legal & Parliamentary Affairs [2015] ZWCC 12 at 26
These are the Independent Electoral and Boundaries Commission of Kenya and the Electoral Commission of South Africa
18
See section 19 of the Constitution of South Africa, 1996 and Article 38 of the Constitution of Kenya, 2010
19
See sections 238 and 239 of the Constitution of Zimbabwe, 2013
20
Saras Jagwanth and Richard Calland.’The Right to Information as a Leverage Right’. University of Cape Town (2002) at 3
21 Iian Currie and Johan De Wal. The Bill of Rights Handbook 5th Ed (2005) at 684
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