Source: Electoral Act requires 68 amendments: Veritas | The Financial Gazette October 5, 2017
ZIMBABWE’S Electoral Act requires 68 amendments to bring it in line with the Constitution and international best practice, a parliamentary and legal watchdog has disclosed.
In a detailed review of the Electoral Act, Veritas said 24 minor changes would also be required to the law governing elections in the country.
It said since the new Constitution came into force in 2013, the Electoral Act had been amended “no fewer than four times in repeated attempts to bring it into line with the Constitution”. The latest amendments were made through regulations under the Presidential Powers (Temporary Measures) Act published a few days ago. The same amendments are also being made through a Bill that was gazetted on September 18, 2017.
“Despite all these amendments the Electoral Act is still not properly aligned to the Constitution. That is to say, it fails to give effect to some of the principles laid down by the Constitution, and some of its provisions are still unconstitutional,” said Veritas.
The recent amendment seek to smoothen the voter registration process, facilitate transfer of voters from one constituency to another, ban the use of the controversial voter registration slips by people not appearing on the voters’ roll to vote on polling day, as well as for every Zimbabwean to register afresh regardless of whether they were already registered under the old voters’ roll.
Veritas highlighted a few of the most critical amendments required to align the Electoral Act with the Constitution, pointing out that besides these, “there are yet more provisions which, though not unconstitutional, should be amended or repealed”.
Veritas has produced a draft Bill which it said would bring all the provisions of the Electoral Act into line with the Constitution if adopted and passed by Parliament.
Among the major changes that need to be made to the Electoral Act are provisions that inhibit citizens from voting, such as proof of residence as well as voting from specific polling stations.
The watchdog said these requirements could take away citizens’ right to vote, which is provided for under Section 67 of the Constitution.
The body pointed out that as the law stands, biometric voter registration was not provided for by the law and citizens not registered under this system cannot be legally barred from exercising their right to vote.
“The Act doesn’t make provision for biometric voter registration at all, and a person who applies to be registered as a voter is perfectly entitled to refuse to have his or her biometric particulars taken and recorded. Regulations have been made providing for biometric registration, but regulations cannot rectify deficiencies in the Act itself,” Veritas said.
The independence of the Zimbabwe Elections Commission (ZEC), which is guaranteed under Section 235 of the Constitution, was severely impaired by five provisions that effectively put it under the control of the Minister of Justice, Legal and Parliamentary Affairs.
Although the Constitution says ZEC is not supposed to be “subject to the direction or control of anyone”, the Electoral Act currently required the electoral body to get approval and instructions from the Minister of Justice on matters to do with election observers, the hiring and dismissal of staff, funding from other sources and all other electoral processes.
The provision giving ZEC exclusive right to conduct voter education was also considered to be inconsistent with the Constitution because every citizen has the right to receive and share information.
The Electoral Act provides for the setting up of the Electoral Court to handle election disputes, but it is the way that these courts would be set up under the existing law that is a cause for concern.
The Electoral Act says the judges for the court should be seconded from the High Court, but the Constitution does not allow a judge to sit on more than one court.
An amendment would be required for judges to be appointed specifically to the Electoral Court, which would be a division of the High Court, just like the Labour Court.
“Part XXII of the Electoral Court establishes an Electoral Court as a separate court staffed by High Court judges. This is contrary to section 183 of the Constitution, which prohibits judicial officers from being appointed to more than one court. In other words, judges must be judges of either the High Court or the Electoral Court, but not both. The Act needs to be amended to re-constitute the Electoral Court as a specialised division of the High Court. A recent amendment to the High Court Act failed to do this,” Veritas noted.