ELECTION WATCH 7/2018
[6th May 2018]
Amendments to the Electoral Act : What’s in Store when Parliament Resumes?
In September last year the Minister of Justice, Legal and Parliamentary Affairs introduced a short Electoral Amendment Bill in the National Assembly. The main purpose of the Bill was to confirm – i.e. to make permanent – some relatively minor amendments previously made to the Act by regulations under the Presidential Powers (Temporary Measures) Act.
It would be an understatement to say that the Bill’s progress has been slow: eight months after it was introduced the Bill has still not been passed by the National Assembly. [See Bill Watch 9/2018 of 15th April outlining delays.] Now, however, that we are a month or two away from the start of the electoral cycle, things are speeding up. On 10th April the Minister gave notice that he would ask the House to add more clauses to the Bill. The opposition chief whip then put forward a raft of additional amendments,
Note: Many of the Minister’s and the Opposition’s Amendments [proposed by their Chief Whip, Mr Gonese] included those put forward in Veritas’s draft Electoral Amendment Bill [link] but more amendments have been added.
In the result, when the National Assembly resumes on 8th May members will be faced with a confusing welter of amendments filling some 35 pages of the Assembly’s Order Paper [link]
In this Election Watch we shall try to explain what the more important of the amendments seek to achieve. We cannot say which of them will be passed by the House, of course, but on past form the Minister’s amendments are likely to be passed and those put forward by opposition members are not.
Transparency of Electoral Processes
Transparency of ZEC
Mr Gonese proposes, in an amendment to section 5 of the Electoral Act, that instruction manuals and procedural guidelines which the Zimbabwe Electoral Commission (ZEC) issues to its staff should be in writing and open to public inspection.
Mr Gonese’s amendments would require election observers to be accredited so that they can observe the entire electoral cycle, from voter registration onwards, in accordance with the SADC Election Principles and Guidelines. His amendments would also change the membership of the Observers Accreditation Committee to make it more truly a committee of ZEC.
The Minister proposes no such amendments.
Role of the ZHRC
Both the Minister and Mr Gonese propose that the Zimbabwe Human Rights Commission (ZHRC) should be given a role in seeing that elections are conducted properly. The Minister wants the ZHRC to observe elections, Mr Gonese wants it to “monitor” them, which implies observing electoral processes and intervening if laws are being violated. Note: the ZHRC do not want to be relegated to the standing of observers. Both amendments envisage ZHRC issuing reports on electoral processes, but require ZHRC to submit to ZEC a draft of its reports and to pay due regard to ZEC’s comments before issuing the final reports.
Right to Vote
Mr Gonese’s amendments would extend the franchise to allow citizens living outside Zimbabwe to vote (this would be done by removing the residence requirements currently in section 23 of the Electoral Act) and allow anyone who cannot get to a polling station on polling day to vote by post (at present section 72 of the Act restricts this to government employees). The amendments would allow not only members of the Diaspora to vote, but also persons manning essential services, persons living with disabilities, hospital patients, and so on.
The Minister’s amendments would change the present position in only one respect: to extend from 12 to 18 months the period that voters can be absent from their constituencies without being liable to have their names removed from the roll.
Registration of Voters
Biometric voter registration (BVR) is not mentioned anywhere in the Act. Mr Gonese’s amendments would allow persons’ biometric particulars (fingerprints, etc.) to be taken when they apply for registration as voters. The Minister, apparently, does not think such a provision is necessary. Note: this problem should have been resolved before the BVR exercise began.
Amendments by both the Minister and Mr Gonese will make it clear that voters can be registered at any registration office; in other words, that people do not have to go to their constituencies in order to be registered as voters. [Also a bit late]
Use of Voters Registration Certificates for Voting
Both the Minister’s and Mr Gonese’s amendments will remove the provision in section 56 of the Act that allows people whose names do not appear on a voters roll to vote on production of a voters registration certificate.
Polling station voters rolls
Amendments proposed by both the Minister and Mr Gonese will make it clear that in the forthcoming general election, polling stations will be established for particular areas within wards and constituencies and voters will have to cast their votes at the polling station established for the area in which they live. The Minister wants an additional amendment to be made to section 22A of the Act, to the effect that two or more polling stations can be established in a polling station area if the number of voters in the area is too large to be handled by a single polling station.
Closure of Voters Rolls
Both the Minister and Mr Gonese propose that voters rolls should close for an election earlier than is currently provided for in section 26A of the Act, namely 12 days after nomination day. The Minister would have them close two days after the proclamation calling the election, Mr Gonese 12 days before nomination day.
What these proposals mean is that although voting registration will be continuous, anyone registered later than two days after the election proclamation (the Minister) or 12 days before nomination (Mr Gonese) will not have their names entered on the rolls to be used in that election and so will not be able to vote then – though they will be able to vote in subsequent elections.
Inspection of voters rolls
Mr Gonese would extend the public’s power to inspect voters rolls under section 21 of the Act by allowing them to photograph and make copies of rolls. The Minister’s amendments make no such provision, but make it clear that all voters rolls, including consolidated national and constituency rolls, must be available for inspection and purchase. [The Act already makes provision for a reasonable fee.]
Alteration of voters rolls
Amendments to section 33 of the Act proposed by both the Minister and Mr Gonese will give voters aggrieved by an alteration of a voters roll a right of appeal to a magistrate. In the Minister’s amendments this right would not extend to the removal of duplicate entries in a polling station voters roll.
Mr Gonese, but not the Minister, would remove ZEC’s current monopoly over the provision of voter education and allow anyone to provide it, subject to ZEC’s right under section 40E of the Act to prohibit persons from giving false or misleading information to voters.
The only change the Minister would make in this respect is to repeal section 40F of the Act, which prohibits foreign funding of voter education.
Both the Minister and Mr Gonese would amend section 52A of the Act to require ZEC to ensure that the number of ballot papers printed for any election does not exceed by more than 10 per cent the number of registered voters in the election.
Both of them would also amend section 56 of the Act to require presiding officers at polling stations to record every case where a voter declines to accept one or more of the ballot papers in the elections taking place concurrently at their polling stations – for example, where a voter wants to vote in a presidential election but does not want to vote in a local authority election. In the past there have been unexplained discrepancies between the numbers of votes cast for different elections at the same polling stations.
Police officers in polling stations
Mr Gonese wants to amend section 55 of the Act to prohibit police officers from entering polling stations except when called on by election officials to preserve order. The Minister does not want to alter the current position, under which police officers can be present in polling stations at all times.
Section 59 of the Act allows illiterate or physically handicapped people to be assisted by persons of their choice when casting their votes. In past elections there have been allegations that assistance has been given to voters who do not need it, to ensure they vote in a particular way. Mr Gonese would try to stop this abuse by allowing assistance to be given only to persons whose entries in the voters roll state that they need assistance. The Minister does not propose any such amendment, but proposes removing a provision that currently allows the presiding officer of a polling station to supervise voting by blind voters and to see how they cast their votes.
Intimidation, Violence and Other Electoral Malpractices
Meaning of intimidation
Both the Minister and Mr Gonese want the definition of “intimidation” in section 133A of the Act expanded so that it would cover persuading a voter to vote or not to vote by claiming that it would be possible to find out how he or she voted.
Committees to combat intimidation and violence
Section 133H of the Electoral Act requires special investigation committees to be set up in all provinces to direct police investigations into electoral intimidation and violence. The committees consist of representatives of the ZHRC and political parties.
Mr Gonese’s amendments would replace the ZHRC representatives with representatives of ZEC; the Minister’s would abolish the committees altogether, leaving the investigation of intimidation and violence to special police liaison officers.
Codes of Conduct
Mr Gonese would require ZEC to formulate codes of conduct regulating the conduct of traditional leaders, civil servants and security force personnel during elections. At present the Act has codes of conduct only for election agents, political parties and candidates.
The Minister proposes no such amendments.
Political activity during polling period
Mr Gonese would insert a new section in the Act prohibiting the holding of political gatherings and the publication of political statements from 24 hours before polling and until polls are closed. The Minister’s amendments make no such provision.
Punishment for electoral malpractices
Mr Gonese would have a new section inserted in the Act allowing the Electoral Court, on the application of anyone acting in the public interest, to declare persons responsible for electoral malpractices to be disqualified from voting, standing as candidates or from holding public office for up to five years.
The Minister has not proposed any such amendment.
The Act currently establishes the Electoral Court as a separate court but provides for it to be staffed by High Court judges. This is contrary to section 183 of the Constitution.
Mr Gonese’s amendments would seek to remove the inconsistency between the Act and the Constitution by re-establishing the Electoral Court as a specialised division of the High Court; the Minister’s amendments are to much the same effect.
Mr Gonese’s amendments would simplify the law relating to electoral challenges and align the grounds for challenge with the Constitution. In particular his amendments would do the following:
- Allow anyone who can show a substantial interest in an election to challenge the election. At present only candidates can do so.
- Oblige the Electoral Court to adjudicate on the real issues in electoral challenges rather than dismissing them on technicalities.
- Allow an election to be set aside on the ground that it did not comply with the principles laid down in the Constitution – i.e. that it was not peaceful, free, fair, transparent or free from violence and malpractices – and that the result was materially affected by the violence or malpractices.
Both the Minister and Mr Gonese would amend the Act to achieve the following:
- Remove the onerous obligation that anyone bringing an election challenge must provide security for the other party’s costs.
- Allow the Electoral Court to decide disputes of fact speedily rather than requiring them to be decided in long-drawn out trials.
- Compel the Electoral Court to ensure that electoral challenges are finalised within six months.
Preservation of Electoral Returns
Mr Gonese wants to amend section 37C of the Act to require ZEC to preserve election returns (i.e. records of the counting and tallying of votes to be kept for public inspection for at least two months after each election. The Minister proposes no such amendment.
As noted at the beginning of this Election Watch, an opposition member has tabled amendments to ensure that gender issues are not forgotten in our electoral law. Some of her amendments lack precision: for example, she would give ZEC the function of “ensuring that gender is mainstreamed into electoral processes”. In so far as they are specific, her amendments are to the following effect:
- Of the party office-bearers nominated to vouch for party-list candidates in terms of section 38A of the Act, some (it is not clear how many) will have to be women.
- Voter education provided by ZEC will have to be gender sensitive.
- Election observers will have to take into account gender equality in their reports on elections.
- The Observers Accreditation Committee must have a representative nominated by the Minister responsible for women’s affairs.
- The two persons with disabilities elected to fill the special seats in the Senate in terms of section 120(1)(d) of the Constitution will have to be of different genders.
- Parties contesting seats in the National Assembly will have to provide ZEC with manifestos addressing gender equality and a list of candidates of whom half will have to be women (it is not clear when parties will have to produce these documents, nor is it clear how parties can be compelled to put up a woman in a particular constituency without violating rights under section 67 of the Constitution).
- The Electoral Court will have to sit with at least one woman assessor.
- Political parties and candidates will have to facilitate the full and equal participation of women in political activities. Parties that breach the requirement will be barred from contesting elections.
The proposed amendments we have listed in this Election Watch are by no means all the ones that have been put forward – as noted earlier, the amendments run to 35 pages of the National Assembly’s Order paper.
The amendments, as set out in the Order Paper, are a confusing jumble and unless they are re-ordered Members of the National Assembly will have a hard time understanding what they mean and where they are supposed to fit into the Bill or into the Electoral Act itself.
Out of this jumble one thing stands out very clearly, however: the Electoral Act is seriously defective and, unless it is extensively amended or completely overhauled, it is not adequate to ensure that the forthcoming general election will be free, fair, transparent and free from malpractices as required by section 155 of the Constitution.