Zimbabwe African National Union v Zimbabwe Electoral Commission and Chairperson of the Zimbabwe Electoral Commission Honourable Justice Priscilla Chigumba N.O

The applicant, a political party, wrote to the Zimbabwe Electoral Commission (ZEC) on 9 May 2018 demanding that ZEC stop using "special paper" for ballot papers in the 2018 national elections and provide justification for its use. The applicant claimed it had received scientific advice that the special paper could be easily abused and had a chemical composition that could "swallow" a voter's mark and replace it with a watermark against a favoured contestant's name. The applicant referenced alleged electoral manipulation in 2013 elections. The applicant sought information on the nature, make and chemical composition of the ballot paper, claiming its right to access to information under s 62 of the Constitution. ZEC responded that it had a constitutional mandate under s 239(a) to design, print and distribute ballot papers, and that the type of paper used could not be disclosed to stakeholders for security reasons, as ballot papers had always been printed on special paper with embedded security features.

• Whether the applicant's right to access to information under s 62 of the Constitution entitled it to details of the chemical composition, type and make of ballot paper to be used by ZEC
• Whether ZEC could lawfully refuse to disclose information about the ballot paper on security grounds
• Whether the requested information was necessary for the applicant to exercise its political rights or to foster public accountability
• Whether the applicant established the requirements for an interim interdict
• Whether disclosure of the ballot paper details would compromise the security and credibility of the election process

The application was dismissed with costs.

The right to access to information under s 62 of the Constitution is not absolute and may be lawfully restricted under s 62(4) and s 86 in the interests of public security where such restriction is fair, reasonable, necessary and justifiable in a democratic society. An applicant claiming a right to information must demonstrate that the information is required for the exercise or protection of a right or for public accountability. Electoral management bodies may refuse to disclose details of ballot paper composition and security features where disclosure would compromise election security by enabling counterfeiting and where the refusal serves the legitimate purpose of ensuring credible, tamperproof elections. The independence of constitutional commissions like ZEC to make administrative decisions regarding electoral materials must be respected absent evidence of impropriety or impact on free and fair elections.

The court observed that in a democratic society based on accountability, responsiveness and openness, an electoral body tasked with ensuring free and fair elections should readily avail information to candidates or parties seeking to exercise political rights. However, the court noted that to suggest bond paper as an alternative to special ballot paper would be naive and would underrate the special nature of the election process. The court commented that the use of special ballot paper with security features should create confidence in the electorate rather than fear, especially in the absence of evidence impacting on its appropriateness. The court also observed that the credibility of an election process is measured against many considerations including how tamperproof the ballot paper is, and that it is incumbent upon ZEC to ensure all election materials are authentic and secure in terms of quality and composition. The court noted that ZEC had committed to providing transparency by disclosing the name of the printer and number of ballot papers and allowing stakeholders to witness the printing process.

This judgment clarifies the scope and limitations of the constitutional right to access to information under s 62 of the Zimbabwe Constitution in the electoral context. It establishes that electoral management bodies may lawfully withhold certain information on security grounds where disclosure would compromise the integrity of the election process. The case demonstrates the application of the limitation clause in s 86 of the Constitution and balances transparency and accountability with the need for secure electoral processes. It affirms the independence of ZEC under s 235 and s 239 of the Constitution to make administrative decisions regarding electoral materials without interference, provided such decisions serve legitimate security purposes. The judgment is significant for delineating the boundaries between citizens' information rights and state security interests in democratic elections.