The Electoral Amendment Bill
Part II Deficiencies in the Bill
Deficiencies in the Bill
Some defects in the Bill have already been noted when outlining the Bill in Part I, but there are also several important issues that are not dealt with in the Bill; the Constitution requires some of these issues to be dealt with:
Right to vote
In terms of section 67(3) of the Constitution, every adult Zimbabwe citizen has the right to vote in all elections, and under section 155(2) the State is obliged to ensure that all eligible citizens are registered as voters and have an opportunity to vote.
The Bill does nothing to make it easier for citizens to register as voters or to cast their votes — indeed, as pointed out earlier in Part I, it actually disenfranchises electoral officers and members of the security forces deployed on electoral duties. Many other citizens remain unable to exercise their democratic right to vote, in particular:
- · Members of the Diaspora: Members of the Diaspora, even those who remain registered as voters, cannot vote unless they return to Zimbabwe in order to do so. They cannot get postal votes, because under section 72 of the Electoral Act, as amended by the Bill, the right to vote by post is restricted to people who are outside Zimbabwe on government duty and the spouses of such people. The Bill makes no provision for voting facilities to be provided at Zimbabwean embassies to allow members of the Diaspora to vote in the foreign countries where they are living.
- · Hospital staff and patients: Patients and key staff manning hospitals and clinics, whether inside or outside Zimbabwe, cannot vote because they cannot get postal votes and the Bill makes no provision for them to cast their votes.
- · Prisoners: Prisoners serving sentences of six months or more were denied the vote under the old Lancaster House constitution, but under the new Constitution all prisoners are entitled to it. Once again, the Bill denies them their right because it prevents them getting postal votes and provides no facilities for them to vote in prison.
- · Other essential services staff: there is no provision for voting by staff manning essential services, such as – railways, airways, etc..
It is arguable that section 72 of the Electoral Act, as amended by the Bill, is unconstitutional in that it effectively denies the postal vote to most Zimbabwean citizens outside Zimbabwe and to all citizens inside the country, and provides no other facility by which those citizens who cannot go to a polling station on polling day may cast their votes.
In terms of section 239 of the Constitution, ZEC is responsible for registering voters and compiling voters’ rolls [the Sixth Schedule to the Constitution gave this responsibility to the Registrar-General, but only for the 2013 general election]. Under the Electoral Act, on the other hand, constituency registrars register voters, and they do so under the general supervision and direction of the Registrar-General of Voters. Effectively, the Registrar-General controls the entire process by which voters are registered and voters’ rolls compiled and published. The Bill does not change this position.
The continued exercise by the Registrar-General and his officers of their powers to register voters and prepare rolls is unconstitutional. The Bill should have remedied this and given the responsibility for voters rolls to ZEC – and at the same time given ZEC the resources to do so.
Section 239 of the Constitution gives ZEC the function of conducting and supervising voter education. The Electoral Act goes further and gives ZEC a virtual monopoly over the provision of voter education [which the Act defines as a course or programme of instruction on electoral law and procedure]. Under section 40C of the Act no one except a political party may provide voter education except in accordance with a programme furnished or approved by ZEC, and the section imposes several other restrictions, such as:
- · Everyone who provides voter education must be a citizen or permanent resident and domiciled in Zimbabwe.
- · If the programme is funded from foreign sources, the funds must be channelled through ZEC.
In its report on the 2013 general election, the Zimbabwe Human Rights Commission noted that the definition of “voter education” was vague and recommended that the distinction between voter education, voter information and civic education should be clarified. The Commission also urged ZEC to work with a broad spectrum of civic organisations to ensure the widest coverage of voter education.
The Bill does nothing to address the concerns expressed by the Human Rights Commission.
Arguably, the restrictions which section 40C of the Electoral Act imposes on the provision of voter education, and the monopoly it confers on ZEC, are an unconstitutional limitation on freedom of expression. At most, the restrictions should go no further than empowering ZEC to prevent the dissemination of false, misleading or partisan information under the guise of voter education.
Independence of the Zimbabwe Electoral Commission [ZEC]
Section 235 of the Constitution emphasises that the Independent Commissions, including ZEC, are independent and are not subject to the direction or control of anyone. In two important respects, however, the Electoral Act places ZEC under the control of the Minister of Justice, Legal and Parliamentary Affairs:
- · ZEC cannot accept funding from local or foreign sources unless the Minister and the Minister of Finance have approved it [section 12(1)(e)].
- · Regulations made by ZEC have no effect unless they have been approved by the Minister [section 192(6)].
These are both considerable limitations on ZEC’s independence. The Bill does not remove them or alter them in any way.
The Electoral Court
Part XXII of the Electoral Act creates an Electoral Court as a separate court with exclusive jurisdiction to hear electoral appeals, applications and petitions, which means that no other court — not even the High Court — may hear those cases. The Act goes on to say that the Chief Justice must appoint High Court judges to preside over the Electoral Court, and in 2013 he appointed all the current High Court judges to be judges of the Electoral Court so that they could deal with electoral cases in addition to their normal High Court work.
The Constitution allows courts such as the Electoral Court to be established but in section 183 it prohibits people being appointed as judicial officers to more than one court. As a result, the appointment of High Court judges to preside over both the Electoral Court and the High Court became illegal as soon as the Constitution came fully into force on 24th August 2013. Hence there are no longer any judges of the Electoral Court.
The Bill does nothing to remedy this very awkward situation.
Polling-station voters’ rolls
In 2012 the Electoral Act was amended to provide for voters’ rolls to be based on polling stations. The idea was that polling stations were to be established at locations which would not be changed from one election to the next. Each polling station would have a specific area which it would serve, and a voters’ roll would be prepared listing the voters who would be entitled to vote at that polling station. Voters would not be allowed to vote at any station other than the one on whose roll they were registered.
This amendment was stated to come into force on a date to be fixed by ZEC. Up to now ZEC has not fixed a date, so the amendment is not yet operative.
The MDC-T party, which initially suggested the amendment, later changed its mind and opposed it. ZANU-PF was never enthusiastic about it. The amendment seems to have been forgotten by those responsible for preparing the Bill, because some of the provisions of the Bill, and many provisions of the Act, are inconsistent with it.
If, as seems likely, it has been decided not to proceed with polling-station voters’ rolls then the 2012 amendment should be removed from the statute book.
General criticisms of the Bill
Generally the Bill is a shoddy piece of work with more than the usual number of careless errors, some of which are serious. The following are some examples:
- · The definition of “disciplined force” which clause 5 will insert in section 4 of the Act refers to the Police Force and the Prison Service, which under the new Constitution are called the Police Service and the Prisons and Correctional Service.
- · In the same clause the new definitions of “metropolitan council” and “provincial council” refer to incorrect sections of the Constitution; the definition of “metropolitan council” is nonsensical.
- · Clause 38 of the Bill repeals section 109 of the Act and inserts a new section which duplicates most of the existing section 110 So there will be two sections in the Act saying much the same thing [but not altogether the same: the new section 109 says that the chairperson of ZEC must announce the results of a presidential election, whereas section 110 says that the Chief Elections Officer must do so].
- · The repeal of the existing section 109 means there will be nothing in the Act to say what is to happen when two or more candidates are nominated for election as President.
- · Clause 44 of the Bill inserts a new section 129 into Part XVIII of the Electoral Act, which deals with elections to local authorities; the new section requires a run-off election to be held if two or more candidates receive an equal number of votes. There is no similar provision for parliamentary elections so the result of a “tie” in such an election will continue, as at present, to be decided by the drawing of lots in terms of section 66(2) of the Act. There is no logical reason why parliamentary “ties” should be decided by the luck of the draw whereas local authority “ties” should be decided by a run-off election.
These errors can be corrected when the Bill is considered at the Committee Stage in the National Assembly, but they should not have been made in the first place. They can be explained, at least partly, by the fact that the Electoral Act has been amended so frequently and so extensively that it is not easy to determine what its provisions currently are.
What is needed is a completely new Electoral Act, preferably prepared under the supervision of ZEC in close co-operation with all the major political parties in Zimbabwe. If this were done, we should have a coherent electoral law which might be regarded as legitimate by the parties contesting future elections.
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