Judgment No. CCZ 05/18 13
Const. Application No. 32/17
Thus, it is evident that even though the regulations must be placed before the Minister
for approval, they are still subject to mandatory scrutiny by Parliament. They cannot be
promulgated unless the Parliamentary Committee tasked with their scrutiny and confirmation has
been given the opportunity to do so and has confirmed that they are in compliance with the laws
of the country and, more importantly, that they are valid under the Constitution. In his opposing
papers the Minister made specific reference to the fact that the regulations must in accordance with
the Constitution and be placed before a Parliamentary Committee for scrutiny. The applicant did
not choose to make any averments on this process. He does not deny the existence of the
Committee, its composition, its impartiality or lack thereof or its functionality. He does not
challenge its effectiveness. In short, he ignores its very existence.
Assuming that it achieves the purpose for which it is set up under the Constitution,
then an attack on the process undertaken by ZEC and the approval of the Minister of that process
would place the applicant in an invidious position. In effect, it would leave him without a leg to
stand on. He cannot in my view, seek to impugn the process piece meal. Given that the law requires
the regulations to be placed before Parliament for scrutiny, the applicant would have to also
challenge the process conducted under the aegis of Parliament itself and exhibit that even that
process is itself wanting and that it does not ensure that his fundamental right to a free and fair
election is at risk notwithstanding the involvement of Parliament at the critical stage. He has not
done so.
It seems to me that the allegation that the applicant’s right to a free and fair election
will be compromised is unfounded and without a basis as there are measures in place to ensure