Ellah Tayengwa and Others v Zimbabwe Electoral Commission and Others

The applicants, comprising six registered voters and two advocacy organizations (WALPE and ERC), challenged the validity of the Public Health (COVID-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No. 4) (SI 225A/2020) (the "Amendment Regulations") promulgated on 30 September 2020 by the Minister of Health and Child Care. The Amendment Regulations suspended the holding of by-elections to fill vacancies in Parliament and local authorities for the duration of the COVID-19 declaration as a formidable epidemic disease. Multiple vacancies had arisen in the National Assembly and local authorities since January 2020, but by-elections were not held before the Amendment Regulations were enacted. The applicants contended that the failure to hold by-elections within 90 days as required by sections 158 and 159 of the Constitution violated electoral laws. By the time of judgment, by-elections had been held on 26 March 2022 following Proclamation 1 of 2022, but the applicants sought a determination on the legality of the Amendment Regulations for posterity.

• Whether the Amendment Regulations were ultra vires section 68 of the Public Health Act
• Whether the Amendment Regulations were ultra vires sections 158 and 159 of the Constitution
• Whether the Amendment Regulations were ultra vires sections 39 and 121A of the Electoral Act
• Whether the first and second respondents acted unlawfully in failing to hold by-elections before 30 September 2020
• Whether the Amendment Regulations were grossly irrational and unreasonable
• Whether political rights under section 67 of the Constitution could be limited by a law of general application during a public health emergency
• Whether the Minister of Health could suspend by-elections pursuant to section 68 of the Public Health Act

The application was dismissed. Each party was ordered to bear its own costs of suit, as the matter raised important legal issues of public interest and was not frivolous or vexatious.

The binding legal principles established are: (1) Section 68 of the Public Health Act is a law of general application that permits the Minister of Health to suspend by-elections during a declared formidable epidemic disease, as such suspension falls within the power to regulate gatherings and movement of persons when read contextually; (2) Political rights under section 67 of the Constitution are subject to limitation pursuant to section 86(2) through laws of general application where the limitation is fair, reasonable, necessary, and justifiable in a democratic society, particularly in the interests of public health and safety; (3) Section 158(3) of the Constitution, which requires by-elections within 90 days of a vacancy, must be interpreted contextually alongside other constitutional provisions relating to elections, particularly the requirement for free, fair, and credible elections—strict adherence to the 90-day timeline is not required where circumstances make it impossible to conduct elections that meet constitutional standards; (4) The Constitution must be interpreted as a coherent whole, with all relevant provisions bearing on a subject considered together, and a broad, purposive approach must be adopted that avoids absurd results; (5) An election held under conditions where voters, candidates, and political parties cannot meaningfully exercise their electoral rights due to lawful restrictions would not satisfy constitutional requirements for free and fair elections; (6) The Amendment Regulations did not suspend the Constitution but rather gave effect to the constitutional scheme that permits limitation of rights during emergencies.

The court made several non-binding observations: (1) The applicants raised an argument about whether the Vice President could constitutionally hold the office of Minister under section 103 of the Constitution, but this was not pursued in argument and the court declined to address it; (2) The court commended counsel for their insightful and well-researched submissions and noted that the case raised important legal issues for the development of jurisprudence in electoral rights; (3) The court observed that each country faced unique circumstances regarding the COVID-19 pandemic and the decision whether to hold elections during the pandemic had to be made based on each country's particular situation—the fact that other countries held elections did not mean Zimbabwe was obliged to do so; (4) The court noted that the first respondent (Zimbabwe Electoral Commission) was not designated as an essential service under lockdown legislation, which constrained its ability to fulfill its constitutional mandate; (5) The court provided examples of other emergency situations (such as tropical cyclones) where it would be unreasonable to expect strict adherence to electoral timelines; (6) The court emphasized the human dimension of the pandemic, noting that people would naturally avoid situations that increased their risk of contracting the virus, which would affect voter turnout and participation; (7) The court noted that various aspects of the electoral process (voter education, registration, nominations, campaigning, voting, and electoral challenges) all require conditions incompatible with lockdown restrictions.

This case establishes important principles regarding the limitation of political and electoral rights during public health emergencies in Zimbabwe. It confirms that: (1) constitutional provisions must be interpreted contextually and purposively, not in isolation; (2) political rights are not absolute and may be limited through laws of general application for public health and safety; (3) the constitutional requirement to hold by-elections within 90 days is subject to exceptional circumstances where holding elections would compromise their fairness and credibility; (4) the principle of legality does not require rigid adherence to constitutional timelines when doing so would produce absurd results contrary to other constitutional principles; (5) the holding of free, fair, and credible elections is more important than strict adherence to electoral timelines; and (6) public health legislation can validly suspend electoral processes temporarily during pandemics. The judgment demonstrates judicial deference to executive action during emergencies while maintaining constitutional principles. It also clarifies the scope of ministerial powers under the Public Health Act and the relationship between different constitutional obligations during states of disaster.