Morgan Tsvangirai v Registrar General of Elections and Others

Morgan Tsvangirai, President of the Movement for Democratic Change (MDC) and principal challenger to the incumbent President in the 2002 presidential election, challenged the constitutionality of section 158 of the Electoral Act and Statutory Instrument 41D of 2002 (the Electoral Act Modification Notice). The third respondent (the President) had promulgated SI 41D on 5 March 2002, three days before the election was due to commence on 9-10 March 2002. The Notice made material alterations to the Electoral Act, including restrictions on postal voting to members of disciplined forces and government officials serving abroad. Tsvangirai alleged that the first respondent (Registrar General) had been biased in favor of the President, including by allegedly extending voter registration deadlines for ruling party supporters while denying registration to his supporters after 10 January 2002. He brought an urgent application directly to the Supreme Court on 7 March 2002 under section 24(1) of the Constitution, alleging violations of the Declaration of Rights.

• Whether the applicant had locus standi to bring an application under section 24(1) of the Constitution
• Whether section 158 of the Electoral Act was inconsistent with the Constitution and therefore invalid
• Whether Statutory Instrument 41D of 2002 was ultra vires section 158 of the Electoral Act
• Whether sections 18(1) and 20(1) of the Constitution (right to protection of law and freedom of expression) had been contravened in relation to the applicant
• Whether the Court had power to issue orders directing the Registrar General in the execution of his statutory duties
• Whether Parliament could delegate its constitutional function to make Electoral Law to the President

The application was dismissed on the preliminary issue of locus standi. The Court did not determine the constitutionality of section 158 of the Electoral Act or the validity of SI 41D of 2002. There was no order as to costs.

For an applicant to have locus standi under section 24(1) of the Constitution of Zimbabwe, the applicant must allege in the founding affidavit specific facts which, if proved, would establish that a fundamental right enshrined in the Declaration of Rights has been contravened in respect of the applicant personally (as opposed to some other person). A bald, unsubstantiated allegation will not satisfy the requirements of section 24(1). An applicant cannot approach the Court on behalf of others whose rights may have been violated unless those persons are detained - the applicant cannot be a "torch bearer" for them. The applicant must show that the impugned legislation affects the specific constitutional right relied upon in relation to the applicant personally.

The majority noted that while the remedies sought directing the Registrar General might appear desirable, the Court had no power to grant them as this would be contrary to section 15 of the Electoral Act which provides that the Registrar General is not subject to direction or control of any person or authority other than the Electoral Directorate. The applicant's remedy in that regard would lie in review proceedings before the High Court. The Court criticized the practice of legal practitioners throwing in whatever information is available in founding affidavits with little regard to relevance or the requirements of section 24(1). Sandura JA in dissent observed that there was merit in the submission that Parliament did not have power under the Constitution to delegate to the President its constitutional function to make Electoral Law, and that section 158 of the Electoral Act may be unconstitutional on that basis, though this issue was not determined. Sandura JA also noted that this Court has in the past taken a broad view of locus standi in constitutional applications to determine real issues where the applicant has a real and substantial interest in the matter.

This case established strict requirements for locus standi in constitutional applications under section 24(1) of the Constitution of Zimbabwe. It clarified that an applicant must aver specific facts demonstrating how their own fundamental rights have been contravened, not merely make bald allegations. The case also confirmed that applicants cannot act as "torch bearers" for others whose rights may have been violated (except in cases of detention). The dissenting judgment by Sandura JA argued for a broader approach to locus standi in constitutional matters where the applicant has a real and substantial interest, reflecting an ongoing tension in constitutional jurisprudence about access to justice. The case arose in the politically sensitive context of a presidential election and involved important questions about the separation of powers and whether Parliament could delegate its constitutional function to make Electoral Law to the Executive, though these substantive issues were not determined due to the locus standi finding.