ELECTION WATCH 15/2017
[25th September 2017]
Electoral Law Amendments : What Remains to be Done
Since the new Constitution came into force in 2013, the Electoral Act has 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, and were published last Friday. For an analysis of these regulations, see Election Watch 11/2017 of 16th September, 2017 [link].
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. In this Election Watch we shall set out the most important provisions of the Act which have yet to be amended in order to align the Act with the Constitution.
Not all the provisions that need amendment to align the Act with the Constitution are listed below, only the most important ones. And there are yet more provisions which, though not unconstitutional, should be amended or repealed. We shall mention some of them at the end of this Election Watch.
Veritas has produced a draft Bill which, if adopted and passed by Parliament, would bring all the provisions of the Electoral Act into line with the Constitution. The Bill can be accessed and downloaded from the Veritas website [link].
Provisions of the Electoral Act which are Not Compliant
with the Constitution
1. The right to vote
Under section 67 of the Constitution every adult Zimbabwean citizen has the right to vote in all elections and referendums. Paragraph 1(2) of the Fourth Schedule to the Constitution allows the Electoral Law to prescribe residential requirements, but only to ensure that voters are registered on the most appropriate voters roll – not to prevent them from being registered at all.
The Electoral Act, on the other hand, contains provisions that effectively prevent citizens from being registered as voters and prevent them voting even if they are registered:
• Section 23: In order to be registered as a voter, citizens must prove that they reside in the constituencies on whose roll they seek registration. Citizens who cannot prove that will not be registered. The only exception is that candidates who want to stand for election in a constituency where they do not live can be registered in that constituency.
• Section 27: Voters can have their names removed from a voters roll, without notice to them, if they cease to be citizens. By denying them the right to challenge their removal – for example, on the ground that they have not lost their citizenship – the section denies them the right to vote as well as the right to due process under section 68 of the Constitution.
• Section 72: Voters must cast their votes at polling stations in the constituencies in which they are registered – and in the next general election they will have to do so at the particular polling stations where they are registered. The only exception allowed by the Act is voting by post, which is reserved for electoral officers and security force members on duty during polling, and government officers who are on duty outside the country. Anyone else who cannot get to a polling station on polling day cannot vote: so hospital patients, persons living with disabilities and persons manning essential services, are all disenfranchised.
Veritas’ amendment Bill contains provisions for preventing all these forms of disenfranchisement.
2. Provisions infringing independence of ZEC
Under section 235 of the Constitution the Zimbabwe Electoral Commission [ZEC] is supposed to be independent and not subject to the direction or control of anyone. Under the Act, however, ZEC’s independence is impaired by the following provisions:
• Section 9(5): ZEC is not allowed to dismiss its Chief Elections Officer without the approval of the Minister of Justice, Legal and Parliamentary Affairs.
• Section 12(1): ZEC is not allowed to accept donations or grants from any non-government source without the Minister’s approval.
• Section 18(5): The Minister, not ZEC, is empowered to make regulations for mandatory automatic and electronic voter registration [“electronic voter registration” presumably means BVR]. The Minister has merely to consult ZEC about his regulations.
• Section 40H: The accreditation of election observers is not left to ZEC but is put largely in the hands of an Observers Accreditation Committee on which government is given excessive representation.
• Section 192(4): ZEC cannot make regulations regarding electoral procedures without the approval of the Minister.
3. Voter education
Sections 40C & 40F effectively give ZEC a monopoly over the provision of voter education. They infringe freedom of expression guaranteed by section 61 of the Constitution.
Under section 155(1) of the Constitution, elections must be “peaceful, free and fair”, and “free from violence and other electoral malpractices”. The Electoral Act, however, does not guarantee this:
• Section 40I: There is no provision for election observers to be accredited well before polling so that they can observe the entire electoral process, including the registration of voters.
• Section 55: Police officers are allowed to sit in polling stations even though some voters may regard their presence as intimidating.
• Section 59: Voters who are illiterate or physically handicapped may be assisted in casting their votes, but if they are assisted by an electoral officer, a police officer must be present to watch how their votes are cast. This clearly infringes secrecy of the ballot, enshrined in sections 67(3) and 155(1)(c) of the Constitution.
5. Electoral 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 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.
6. Electoral challenges
Section 155(2)(e) of the Constitution requires the Electoral Act to ensure the timely (i.e. prompt) resolution of electoral disputes. The Act is seriously defective in this regard:
• Sections 155 & 156: Under these sections, election results can be set aside for malpractices such as corruption, violence or intimidation, but only if the successful candidates were responsible for the malpractices. If not, the elections will be held valid. This is contrary to section 155 of the Constitution, which states that elections must be free from electoral malpractices no matter who is responsible for them.
• Part XXIII sets out the procedures to be followed in election challenges. They are unduly technical and cumbersome and do not allow elections to be challenged on the ground that they violated constitutional principles of fairness, transparency and peacefulness. Also, only unsuccessful candidates can bring election petitions challenging elections. Under section 67 of the Constitution every citizen has the right to free and fair elections, so every voter should have the right to challenge an unfair election.
Further Urgent Amendments Needed to Electoral Act
As we have mentioned, these amendments are by no means the only ones that have to be made to the Act; they are only the ones urgently needed to rectify the Act’s most glaring inconsistencies with the Constitution. There are many other provisions that are not unconstitutional but should be changed if elections are to be free, fair and transparent. For example:
• Biometric Voter Registration: 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.
• Transparency: Although section 7 of the Act enjoins ZEC to “promote … transparency in the performance of its functions”, ZEC’s conduct to date has been characterised by secrecy and obfuscation rather than openness. ZEC has refused, for example, to disclose how it selected the operatives for its BVR machines, or what – if any – precautions it is taken to protect the BVR data against theft or hacking. The Act should be amended to oblige ZEC to exercise the utmost candour in regard to electoral processes at all stages, and to penalise ZEC’s members and officials who refuse to divulge information which the public has a right to know. If ZEC continues its present course, we are liable to find ourselves in the same situation as Kenya, where a general election has been set aside because the country’s electoral commission did not reveal enough information about its processes.
• Voters rolls: The Act is vague as to the rolls that ZEC must keep. There should be clear distinctions between the national voters roll, constituency rolls, ward rolls and – for future elections – polling station rolls. Also the right of the public to inspect and make copies of voters rolls should be extended in the interests of transparency.
• Election expenses: Part XVI of the Act limits the expenses that may be incurred by candidates. The Part has been ignored in all elections since Independence, and ZEC apparently regards it as unenforceable – in which case it should be repealed. On the other hand, there is no provision in the Act outlawing the use of State resources by incumbents (i.e. the President and his Ministers) for election purposes. It should be made an illegal practice, because it gives a grossly unfair advantage to incumbents. An election in which an incumbent takes unfair advantage of resources that are available to him or her, and not to his or her opponents, cannot be regarded as a fair election.
• Presidential elections: Sections 37C, 109 and 110 are inconsistent and confusing in regard to the holding of presidential and presidential run-off elections. They need to be aligned and clarified.
It is clear from what we have said that the Electoral Act needs extensive amendment, if not a complete overhaul. While that may not be feasible before next year’s general election, a new Electoral Amendment Bill [link] has been published to confirm the Presidential Powers regulations published last week. It should be possible to include in that Bill the amendments we have listed in this Election Watch, as well as those in Veritas’ Amendment Bill, so that the Act is brought at least a little further into conformity with the Constitution.
A further point must be made in conclusion. The Constitution, as we have said, requires elections to be “peaceful, free and fair”, and “free from violence”. An election cannot be free and fair if it is not peaceful, and it is not enough for polling day itself to be peaceful. The peace must extend throughout the electoral cycle. There must be no violence and no intimidation. This cannot be guaranteed by the Electoral Act alone: it needs commitment on the part of all candidates, political parties and law enforcement agencies: from everyone, in fact.