BILL WATCH 11/2014 of 4th March – part 1

BILL WATCH 11/2014

[4th March 2014]

The Electoral Amendment Bill

Part I – Contents of the Bill

Introduction

The Electoral Act regulates the way in which elections are conducted in Zimbabwe;  it deals with presidential and parliamentary elections as well as elections to provincial and metropolitan councils and local authorities.

The Act was amended in June 2013, just before the last general election, to allow the election to be held in accordance with the new Constitution.  The amendments were made through regulations under the Presidential Powers (Temporary Measures) Act, and the regulations expired on 10th December last year.  On the expiry of the regulations the amendments fell away, and if they are to be re-inserted into the Electoral Act they will have to be re-enacted by an Act of Parliament.

That is the purpose of the Electoral Amendment Bill which was gazetted on 3rd January this year.

Contents of the Bill

The main amendments which the Bill will make to the Electoral Act are as follows:

Party-list elections

The Bill provides for the election of the 60 women members of the National Assembly, the 60 elected Senators and the elected members of provincial councils, all of whom, in terms of the Constitution, must be elected through a party-list system of proportional representation.

The way in which these elections are to be conducted is set out in a new Part XIA which the Bill will insert in the Act.  Political parties must present their lists of candidates on nomination day, each list containing the same number of candidates as there are vacancies to be filled [i.e. six candidates per province, in the case of parliamentary elections, and 10 candidates in the case of provincial council elections].  Candidates can be nominated only once in any election, so it is not possible for a candidate who is standing for election in a constituency, for example, to be nominated on a party list for election to the National Assembly or the Senate or a provincial council.  Voters do not vote directly for party-list candidates;  instead, the votes cast in a province for constituency candidates are credited to the parties for which those candidates are standing, and the parties’ party-list candidates benefit from the votes according to the parties’ shares of the total number of votes cast in the province.  The way in which each party’s share of the total votes is allocated to its party-list candidates is set out in a new Eighth Schedule which the Bill will insert in the Act.

Post election vacancies that occur among the party-list Senators and members of the National Assembly are filled by nominees of their party.  The nominees are appointed to the Senate or the National Assembly if, after their names have been published in the press, the Zimbabwe Electoral Commission [ZEC] finds that they are suitably qualified for appointment.

Comments and points to note:

  • ·      Independent [i.e. non-party] candidates cannot be on a party list.  Nor is it possible for voters who vote for an independent candidate to indicate that their votes should be credited to any party’s party-list candidates.
  • ·      It is not possible for parties to nominate fewer party-list candidates than the number prescribed, i.e. six in the case of elections to the National Assembly and the Senate, and ten in the case of elections to a provincial council.  Nor can a party nominate more than the prescribed number, to allow for deaths or withdrawals and the filling of post election vacancies. This is permitted in many countries.
  • ·      As already indicated, a candidate cannot be nominated more than once so it is not possible, for example, for a person to stand as a candidate in a constituency and as a party-list candidate in a province, or as a party-list candidate in two or more provinces.  Again, this is permitted in many countries.

Election of Senators to represent disabled persons

The Bill will provide for the election of two Senators to represent disabled persons in accordance with section 120(1)(d) of the Constitution.  The way in which they are elected is set out in a new Seventh Schedule which the Bill will insert in the Act.

According to the Seventh Schedule, after every general election ZEC must call on the board established under the Disabled Persons Act to prepare a list of suitable people, mainly drawn from associations representing disabled persons, to form an electoral college which meets to elect two disabled persons as Senators.  Nominations for those two Senators are submitted to this electoral college by associations representing the disabled and which have been specified by the Minister of Justice.

Point to note:

  • ·      The Bill makes no provision for filling the vacancy if one of these Senators dies or resigns.

Nomination of candidates

The Bill will allow political parties to submit nomination papers for their candidates in advance of nomination day in an election, and will allow parties to designate office-bearers who have authority to certify that candidates represent the party.  Parties which have done so will be allowed to nominate substitute candidates if their nominated candidates withdraw or die within seven days after nomination day.

The Bill will also reduce from ten to five the number of voters required to nominate candidates for election to the National Assembly.

Points to note:

  • ·      The Electoral Act has always allowed candidates to submit their nomination papers before nomination day so that any errors or deficiencies can be remedied, but the Bill will give them an added incentive to do so.
  • ·      The reduction in the number of nominators will reduce the amount of work that ZEC officials have to do at election time checking candidates’ nomination papers.

Closing of voters’ rolls

Voters’ rolls will be closed for the registration of new voters 12 days after nomination day in any election.  At present rolls are closed one day before nomination day.

Point to note:

  • ·      The voters’ rolls will be closed later than they are under the present Act, so it will be more difficult for ZEC to supply up-to-date printed rolls to candidates and to polling stations for use on polling day.

Election observers

The Bill will require election observers to apply for accreditation by the Zimbabwe Electoral Commission [ZEC] at least four days before a general election, and provides for foreign observers to be accredited nationally and local observers to be accredited on a provincial basis — i.e. local observers are to be restricted to particular provinces for which they are accredited.

Commissioners [i.e. members of ZEC] will have a 5–4 majority on the committee which, under the Act, accredits election observers.  Hitherto they have been outnumbered by civil servants.

Points to note:

  • ·      The restriction of local observers to particular provinces may make it difficult for national organisations such as ZESN to get observers accredited nationally.
  • ·      Commissioners should must be in a majority on the observers accreditation committee because ZEC is responsible for accrediting observers under section 239(i) of the Constitution.

Election agents

Up to two election agents for each candidate will be permitted in the immediate vicinity of polling stations, in addition to the agent watching polling inside the station.  Political parties which have provided ZEC with the names of officials with authority to vouch for their parties’ candidates will be entitled to appoint a “roving agent” to visit all the polling stations within a ward.

All election agents, including roving agents, will have the right to be present in polling stations when votes are counted.

Voting

Voters who are not registered on a voters roll will be able to cast their votes on production of a voters registration certificate and proof of identity.

Points to note:

  • ·      This is probably necessary because of the new provision, mentioned above, that voters’ rolls close for new registrations 12 days after nomination day.  Voters who are registered after nomination day are unlikely to have their names entered on the printed rolls used on polling day.
  • ·      There is no requirement that the voters registration certificate must show the voter is registered on the roll of the constituency or ward in which he or she is seeking to cast a vote.  Hence a voter whose certificate shows he or she has been registered on the roll of a particular constituency will be entitled to vote in any other constituency merely by producing the certificate.
  • ·      Voters registration certificates are simply slips torn from the forms which people fill in to apply for registration as voters.  They are easily forged.

Publication and transmission of electoral results

The Bill will require presiding officers of polling stations to ensure that, after votes have been counted, the results are kept posted outside the polling station for long enough for members of the public to read them and make copies of them.  The Bill will also clarify the way in which electoral results are transmitted from polling stations to ZEC’s National Command Centre, though it will not change the existing transmission process.

Announcement of election results

The Bill will limit the crime of issuing unofficial announcements of electoral results.  Unofficial announcements by party officials will not be criminal unless they are made falsely or purport to be made officially.

Point to note:

  • ·      This may prevent the arrest of party officials and other people who simply add up the tallies in polling station returns and announce that a particular candidate has received the most votes.

Special voting

One important amendment will be made by omission, as it were:  the Bill omits any provision for special voting, which was one of the innovations made by the Presidential Powers regulations.  Special voting was a process by which civil servants and members of the security forces who were involved in the electoral process and would not be able to vote on polling day, were allowed to cast their votes at special polling stations before they were deployed on electoral duties.  The abolition of the special voting process means that if these people are to vote they must do so through postal votes.  But they will have a problem:  the new section 72 which the Bill will insert in the Act confers the right to a postal vote only on government officials who are outside Zimbabwe on polling day.  No one inside Zimbabwe is entitled to a postal vote.

Point to note:

  • ·      The special voting process in the last general election was chaotic, but it is not clear whether the chaos was due to inherent defects in the system or to bad organisation.  If the latter, then it seems a pity to abolish the system altogether.
  • ·      As already noted, election officials and security force personnel who are unable to cast their votes in their constituencies will not be able to get postal votes and so will be disenfranchised.  If this is a drafting error, as is probably the case, it will have to be corrected.

Part II will deal with deficiencies in the Bill

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