Tracy Smith v Chairperson of the Zimbabwe Electoral Commission and Zimbabwe Electoral Commission

The applicant, Tracy Smith, was a registered voter and Independent candidate for councillorship of Ward 2 Gwanda Central Constituency in the harmonised general elections scheduled for 30 July 2018. On 13 July 2018, exactly 17 days before the election, she approached the Electoral Court on an urgent basis seeking to have alleged irregularities in the voters' roll for Ward 2, Gwanda Constituency rectified. Specifically, she sought removal of voters from foreign constituencies and delivery of a corrected voters' roll within three days. The application was brought as an urgent chamber application without following the prescribed procedures under sections 28 and 33 of the Electoral Act for objecting to the retention or removal of names on the voters' roll.

• Whether the Electoral Court had jurisdiction to entertain an urgent chamber application seeking rectification of the voters' roll outside the statutory procedures prescribed in the Electoral Act
• Whether the applicant adopted the correct procedure in challenging the voters' roll
• Whether objections to the retention of voters on the voters' roll could be made within 30 days prior to polling day
• Whether the applicant's application violated the constitutional rights to administrative justice and the right to be heard of voters she sought to remove from the roll

1. The court declined jurisdiction to hear the matter. 2. The applicant was ordered to pay the costs of suit.

The Electoral Court, despite being established as a division of the High Court, is a creature of statute whose jurisdiction is strictly limited to what is prescribed in section 161 of the Electoral Act. Constitutional rights must be vindicated in the first instance through appropriate statutory remedies (doctrine of ripeness), and litigants must follow the prescribed procedures in the Electoral Act for challenging voters' rolls. Section 28 of the Electoral Act provides a peremptory procedure for objecting to the retention of voters on the roll, which must be followed. Section 28(5) prohibits action on objections made within 30 days prior to polling day. The removal of voters from the roll without following statutory procedures violates their constitutional rights to administrative justice and the right to be heard (audi alteram partem). Where a litigant fails to follow prescribed statutory procedures and approaches the court outside those procedures, the court lacks jurisdiction to entertain the matter.

The court observed that section 86(1) of the Constitution of Zimbabwe provides that fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of other persons. In seeking to vindicate her own rights, the applicant could not disregard the constitutional rights of the voters she sought to remove from the roll. The court noted that every voter enjoys the right to administrative justice in the manner they are removed from the voters' roll, which finds expression in sections 28 and 33 of the Electoral Act. The court also made historical observations about the evolution of the Electoral Court, noting that prior to the Electoral Amendment Act No. 6 of 2018, the Electoral Court was a standalone court not related to the High Court, and that the legislature preserved the limitations on its jurisdiction when enacting it as a division of the High Court.

This case is significant in Zimbabwean electoral law as it clarifies the limited jurisdiction of the Electoral Court even after its establishment as a division of the High Court. It establishes that the Electoral Court's jurisdiction remains confined to what is prescribed in section 161 of the Electoral Act and does not automatically extend to the broader jurisdiction of the High Court's General Division. The case reinforces the doctrine of ripeness in constitutional litigation, requiring litigants to exhaust statutory remedies before seeking direct constitutional relief. It also confirms the importance of strict compliance with peremptory statutory procedures in electoral matters, particularly the procedures for challenging voters' rolls, and emphasizes that such procedures cannot be circumvented through urgent applications. The judgment protects the constitutional rights of voters to administrative justice and the right to be heard before being removed from the voters' roll.