THE Constitutional Court (ConCourt) has declared as unconstitutional the prosecution of Election Resource Centre (ERC) officials who were arrested and charged with breaching the country’s tough electoral laws ahead of last year’s general election.
In May 2013, police arrested and charged four ERC officials namely Tawanda Chimhini, who represented the ERC in his capacity as Director and Moses Chikora, Wadzanani Nyakudya and Farai Saungweme with contravening Section 40 (c) (1) (g) of the Electoral Act for allegedly conducting voter education by distributing materials without the approval of the Zimbabwe Electoral Commission (ZEC).
The State alleged that the ERC officials unlawfully conducted voter education by distributing unapproved compact discs and flyers containing voter education material in Harare’s Mt Pleasant suburb on 11 May 2013 ahead of the July 31 2013 general elections without approval from ZEC.
The ERC officials who were represented by Trust Maanda of Maunga Maanda and Associates Legal Practitioners, who is also a member of Zimbabwe Lawyers for Human Rights filed an application in the Constitutional Court in November 2013 arguing that the charges they were facing had the effect of breaching their fundamental rights particularly their right to freedom of expression in terms of Section 61 of the Constitution.
In their application, in which they cited Johannes Tomana, the Prosecutor General, the National Prosecuting Authority and Harare Magistrate Tendai Mahwe, the ERC argued that what they are alleged to have done constitutes the exercise of freedom to communicate ideas and information and hence Section 40 of the Electoral Act hinders the freedom to communicate and impart ideas and is inconsistent with Section 61 of the Constitution.
The ERC officials charged that what they allegedly did was to provide voter information which was essential for potential voters to exercise their right to vote.
In a ruling delivered on Wednesday 3 September 2014, the Full Bench of the ConCourt ruled that the prosecution of the ERC officials infringed their right to liberty in terms of Section 49 (1) (b) of the Constitution for there being no reasonable suspicion of their having committed an offence.