Allan Markham (MP) Set To Appeal High Court Ruling On Electronic Voters' Roll
Opposition MP Allan “Rusty” Markham, who took the Zimbabwe Electoral Commission (ZEC) to court demanding that it releases the electronic Voters’ Roll but lost, has said he disagrees with the ruling by the High Court.
Justice Never Katiyo sitting at the Harare High Court ruled that the application by Markham was premature.
In a statement issued on Thursday, 09 March 2023, Markham said he has instructed his lawyers to file an appeal. Pindula News is publishing Markham’s statement below:
On the 7th of March 2023, the High Court heard and decided my application for the provision, forthwith, of a consolidated national voters roll in electronic form by the ZEC.
The court dismissed the application. The operative part of the court’s judgment delivered ex-tempore read that:
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“This case lacks merit, is prematurely before the courts and that (sic) ZEC should make sure that it protects voters roll into consideration the Cyber and Data Protection Act”.
The background of the application is as follows: –
After analyzing the voters’ roll as at 1st February 2022, I noted a number of material breaches of the Electoral Act, and a direct failure by the Zimbabwe Electoral Commission (ZEC) to fulfill its obligations regarding the voters’ roll.
I therefore, on 27th July 2022, through my legal practitioners, wrote a detailed letter to Zimbabwe Electoral Commission outlining these breaches and demanding they rectify them.
The ZEC responded on 19th August 2022. It advised that it was in the process of producing an updated voters roll which would take into account some of the queries I had raised and implored that I wait for the new roll to establish whether there was still a need to pursue the queries.
On 9th October 2022, I made a follow-up, and on 20th of October, was advised that the roll was ready.
However, ZEC advised that it could, within thirty (30) days of the payment of the US$187,000.00 fee, only provide me with a hard copy of the consolidated national voters roll.
It could not provide me with an electronic roll as “it was currently working on enhancing the security of the electronic voters roll“. It undertook to avail the electronic roll on a platform at a date to be advised.
I disagreed with the ZEC’s proposal to delay the provision of the voters’ roll in electronic form to me for an open-ended period.
This is because the Electoral Act gives citizens a choice to get the voters’ roll either in hard copy or electronic form and the ZEC is obliged to provide it in the form requested.
The electronic voters’ roll of my choice should have been provided in a searchable and analysable form within a reasonable time.
My choice to get the voters roll in an electronic form was instructed by among other things the fact that the electronic roll is easy to analyze and review compared to the bulky hard copy (more than 187 000 pages) and that it costs an affordable US$200 as opposed to the expensive and prohibitive US$187,000.00.
A lot of money is spent on the preparation of the voters’ roll. Citizens must have an opportunity to satisfy themselves that it has integrity.
With a total of over 185 000 pages containing more than 35 million words, no person can carry out an integrity analysis of a physical copy even if they dedicate a decade of their lives to it. Let alone compare it with earlier versions.
The provision of an electronic copy is not only financially cheaper, but it is the best chance at an effective search and analysis of this important document.
At the time of my request, apart from the need to follow up on the original queries, there was an urgent need on my part to review and analyze the voters’ roll for the purpose of contributing to the public consultations regarding delimitation which was ongoing.
The failure by ZEC to indicate a time within which the electronic roll was to be provided was unreasonable and tantamount to a refusal.
I therefore, on the 2nd of November 2022, gave ZEC an ultimatum that they either provide me with an electronic voters roll within seven (7) days, or I will approach the court.
They did not respond to my letter. I accordingly instituted the application on 23rd November 2022.
At the time of the hearing, a period of 145 days had lapsed since my request and Zimbabwe Electoral Commission had not indicated when they will be able to provide the roll.
The ZEC has no right to do anything or make any discretionary decisions that will lead to my right to get an electronic roll negated.
If the ZEC decides to format the roll for protection against alteration and tampering, it must know what this process entails and communicate to me how long it will take, and when thereafter it will be able to provide the electronic roll to me.
The ZEC cannot adopt a course where it says, we intend to format the roll but have no idea how to achieve it and how long it will take us to do so, so go home, wait until we figure out how this is going to happen.
If this is a good excuse now, it can be a good excuse, with disastrous consequences, on the eve of an election.
As the voters’ roll can legally be supplied without being formatted, the decision by the ZEC to try and format it, cannot justify their refusal to provide the roll.
The process of securing the electronic roll against alteration and tampering must neither delay nor negate my right to receive the roll in an electronic form.
The alleged fear of alteration or tampering of an electronic roll given to me, is to me irrational, considering ZEC retain the original “master” copy of the roll on their system and in physical form.
I disagree with the court’s reasoning that we approached it prematurely. Once the ZEC refused to provide the electronic roll and or indicate when it was going to do so, we were entitled to seek redress from the courts.
I disagree with the court that a period of 145 days which has lapsed since my request, is a reasonable time to keep a citizen waiting for a roll that is already available.
The very failure by the ZEC on the date of the request to indicate when it was to provide the voters roll in electronic form was unreasonable and amounted to a refusal to give me the roll which should have moved the court to order its provision.
I disagree with the court that the tweets by ‘Team Pachedu’, which were made well after our request for the voters’ roll and its rejection by the ZEC, are proof that the electronic voters’ roll was tampered with, nor that they justify the ZEC’s refusal to release the electronic roll to me.
These tweets were irrelevant and should not have been considered as they came after my demand, some even came after I had already filed the application.
If a genuine case of alteration and tampering had occurred the ZEC would have shown proof of their police report and the alleged perpetrators would have been facing prosecution.
I have instructed my lawyers to file an appeal and hope to get the necessary redress from the superior court.
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