ELECTION WATCH 16/2017
[12th October 2017]
Laws Needing Amendment for Free Elections
In Election Watch 15/2017 we outlined some of the amendments to the Electoral Act that need to be made to bring it into line with the Constitution. We have also published a draft Electoral Amendment Bill which, if adopted and enacted, would make those amendments.
The Electoral Act, however, is not the only statute that needs amendment if next year’s elections are to be free, fair and peaceful as required by section 155 of the Constitution. The general legal environment in which an election is held is equally important. Even if voters are able to vote for whoever they wish on election day, their choices will not be freely made if, for example, some candidates have been prevented from holding meetings or presenting their policies to the electorate. An atmosphere of free political activity is essential to the holding of free and fair elections.
In Zimbabwe there are several statutes that effectively stifle freedom of assembly and debate, and they must be amended or repealed soon if next year’s elections are to be credible and legitimate.
That is not all. Some additional legislation needs to be enacted in order to improve the electoral environment.
Statutes that Must be Amended or Repealed
1. Public Order and Security Act (POSA)
This Act regulates the holding of public meetings and gatherings, and in previous elections its provisions have been used to stop opposition parties from holding rallies and informing the electorate about their policies. The Act should be amended in the following respects:
· To make it clear that the police have no power under section 25 of the Act to prohibit peaceful gatherings, and that the section only requires convenors to give notice to the police that they are going to hold their gatherings. The courts have made this point in the past but the police have persisted in ignoring it. The Act must be amended to make it absolutely clear.
· To give magistrates, rather than police officers, power to prohibit public gatherings under sections 26 and 27 of the Act. Vesting the power in magistrates may lead to greater impartiality.
· To oblige the police to prepare detailed reports of all incidents in which they use force to disperse public gatherings, to send copies of those reports to the convenors of the gatherings concerned and to submit them to Parliament.
Veritas has prepared a draft Bill which would make these changes to the Act. The draft Bill can be viewed on the Veritas website [link].
The African Commission on Human and Peoples’ Rights Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa [link] should be incorporated into any amendment made to POSA.
2. Access to Information and Protection of Privacy Act
This Act is notorious for stifling the growth of a free press and for its “chilling effect” on news media. If it cannot be repealed it should at least be amended as follows:
· To allow all journalists to practise their profession freely in Zimbabwe. Under sections 78 and 79 of the Act only journalists who are accredited by the Media Commission may do so, and only local journalists can be accredited, except for short periods.
· To abolish the criminal offence of “abuse of journalistic privilege” under section 80 of the Act.
Veritas has drafted Bills to replace the Act. The Bills can be viewed on the Veritas website : Media Freedom and Transparency Bill [link]; Media Practitioners Bill [link]; and Access to Information and Freedom of Expression Bill [link]. MISA Zimbabwe have also produced a model Access to Information Law [link].
3. Criminal Law (Codification and Reform) Act
Some of the provisions of this Act, too, have a chilling effect on free speech:
· Section 31, which criminalises making false statements prejudicial to the State, is over-broad. It must be reduced in scope.
· Section 33, which makes it a crime to insult the President, should either be repealed entirely or be amended so as to reduce its scope. An executive President is a politician and, especially when he is a candidate for election, should be open to the same criticism and satire, whether fair or unfair, as all other politicians.
The “chilling” effect of these provisions can be seen in recent statements by government officials that it is a criminal offence to make statements causing alarm and despondency. It isn’t an offence, in fact, but because there are so many draconian provisions in our law people readily believe that such an offence exists.
4. Interception of Communications Act
This Act allows the government to intercept communications, both electronic and postal. There are no independent safeguards to prevent the government’s powers under the Act from being used for partisan purposes. In particular:
· Interception warrants are issued by a Minister, and there is no judicial or independent monitoring of their issue or of the interception activities conducted under their authority. If warrants are to be issued at all they should be issued by a court or at least by an independent judicial officer.
· Some interception warrants are renewable by the Minister, others by the Administrative Court. They should all be renewed only by a court.
In the absence of proper safeguards the fear of governmental surveillance under the Act inhibits free political intercourse.
5. Censorship and Entertainments Control Act
This Act also inhibits freedom of expression. Although it is directed primarily at protecting the public’s morals, it has been used for political purposes: for example, a film that recorded the process of negotiating the new Constitution in 2013 was banned on the ground that it was not in the public interest. Also, exhibitions of politically-charged photographs and paintings have been raided by the police for alleged contraventions of the Act.
Legislation that Should be Enacted
The following pieces of legislation should also be enacted to improve the electoral environment:
1. Independent Complaints Mechanism for Security Services
Section 210 of the Constitution obliges the government to enact a law providing an “effective and independent mechanism” for receiving and investigating complaints from the public about misconduct on the part of members of the security forces. In past elections it has often been alleged that the police have refused to investigate or act on complaints of politically-motivated violence committed on opposition supporters. It would be reassuring to the public to know that such complaints, and complaints about police inaction, could be made to a higher independent authority. And that authority should in turn have to report to Parliament.
In 2015 Veritas instituted a case in the Constitutional Court to compel the government to establish the complaints mechanism under section 210 of the Constitution. Although the Court seemed to accept the validity of Veritas’ case – it could hardly have done anything else – two years later it has yet to give judgment or even an order in the matter.
2. Codes of Conduct for Public Officers
Section 198(b) of the Constitution requires an Act of Parliament to establish codes of conduct to be observed by public officers. In the context of elections, such codes should:
· prohibit civil servants and members of the security services – soldiers, police officers and prison officers – from acting in a partisan manner or trying to further the interests of particular political parties or factions.
· prohibit the use of State resources for partisan political purposes, whether by the President and his Ministers or by anyone else.
3. Prevention of Electoral Violence : the Zimbabwe Human Rights Commission
The Zimbabwe Human Rights Commission [ZHRC] could play an important role in discouraging electoral violence, but the only role it has present is to establish committees to assist the Police investigate cases of politically-motivated violence or intimidation [section 133H]. This compromises its role as an independent watchdog. The Commission should be given an more independent and much more forceful role, allowing it to call candidates and parties to account for encouraging or permitting violence. The Commission is still operating under an enabling Act drawn up under the old constitution – their enabling Act still needs to be aligned to the new Constitution with its stronger Declaration of Rights.
If the Acts listed above were amended in the ways we have suggested, and if the new legislation we have suggested were enacted, the electoral environment would certainly improve. Time is running out, however, and action should be taken immediately if we are to have the free, fair and peaceful elections that are mandated by the Constitution.