ELECTION WATCH 18/2018
[31st May 2018]
The Electoral Act as Amended : Is it Now Constitutional?
The Electoral Amendment Act was gazetted on the 28th May and came into operation on that date. It is Act No. 6 of 2018 and is available on the Veritas website [link].
Note: the Electoral Act, incorporating all amendments, is available on the Veritas website [link].
The Act cannot be amended again for the purpose of the forthcoming general election, which was called yesterday. Section 157(5) of the Constitution states “After an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election”.
Now is an appropriate time to ask: does the Act as currently amended comply with the Constitution? The answer to that question, regrettably, is: no, though the recent amendments have certainly improved the Act.
In this Election Watch we set out some of the main respects in which the Act remains constitutionally deficient.
1. The right to vote
Under section 67 (3) of the Constitution “every Zimbabwean citizen who is of or over 18 years of over age has the right to vote in all elections and referendums” and section 155(2)(b) says “The State must take all appropriate measures, including legislative measures” to ensure that every eligible citizen has an opportunity to vote. 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, even with its new amendments, will deny the vote to several classes of citizens:
· Members of the Diaspora: Citizens living outside Zimbabwe cannot be registered as voters and so will not be able to vote. This is because section 23 of the Electoral Act insists that persons must be resident in a constituency before they can be registered on a voters roll in that constituency.
In any event, ZEC provided no facilities for citizens outside the country to register on the new voters roll, so no one in the Diaspora will have been registered on any roll unless they came back to Zimbabwe to apply for registration.
· Hospital patients, persons manning essential services, etc.: Voters who cannot go to a polling station to vote on election day will not be able to cast their votes unless they are permitted to vote by post – and the only people who will be allowed a postal vote are election officials, members of the security services on electoral duty, and Zimbabwean diplomats overseas. This is the effect of sections 56(1) and 72 of the Electoral Act, and is stated expressly in section 22A(3). Hence many people – doctors and nurses, hospital patients, fire officers, long-distance drivers, even prisoners – will be disenfranchised.
· Prisoners: Although the Lancaster House constitution denied the vote to prisoners serving sentences of more than six months, the present Constitution contains no such exclusion, so prisoners have the same right as all other citizens to vote in elections. The Electoral Act makes no provision for them to exercise their rights, and since no arrangements were made for them to be registered on the new roll most prisoners will be excluded by that fact alone.
Can the result of the forthcoming general election can be regarded as representing the views of the people of Zimbabwe if so many citizens have been denied the right to express their views through the ballot?
2. The Independence and Transparency 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. Even under the amended Electoral Act, however, ZEC’s independence will continue to be limited by the following provisions:
· Section 9(5): ZEC does not have a general power to dismiss its Chief Elections Officer without the approval of the Minister of Justice, Legal and Parliamentary Affairs.
· Section 12(1)(e): ZEC is not allowed to accept donations or grants from anyone without the approval of the Minister of Justice and the Minister of Finance.
· 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 – or anything else – without the approval of the Minister of Justice.
Although section 194(1)(h) of the Constitution requires all tiers of government – including ZEC – to foster transparency by providing the public with timely, accessible and accurate information, this is not reflected in the Electoral Act and ZEC has not been transparent about many issues. For example, it has not published its procedural manuals, has refused to put the contract for printing ballot papers to public tender, and has not disclosed how many of its staff have security force backgrounds.
3. Voter education
Section 61 of the Constitution gives everyone the right to freedom of expression, one of the most important guarantees of democracy.
Section 40C of the Electoral Act, however, denies people their right to express themselves freely on an important civic matter, namely voter education (i.e. instruction on electoral law and procedure). The section imposes so many restrictions on the right of ordinary people to explain electoral law and procedure to voters that ZEC is virtually given a monopoly over it.
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 still 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 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 and two other electoral officers 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 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 provision for the resolution of disputes:
· 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, which is demonstrated by the fact that of all the election petitions filed after the last general election in 2013, not one was decided on the merits. More specifically, Part XXIII of the Act is deficient in that:
o It does not allow elections to be challenged on the ground that they violated constitutional principles of fairness, transparency and peacefulness. An election that violates those principles is not an election for the purposes of the Constitution, but the Electoral Act does not permit a court to set an election aside on the ground that it did not comply with the Constitution.
o 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 – perhaps even ZEC should be permitted to do so.
o There is no provision requiring the Electoral Court to deal with the real issues in election petitions rather than dismissing them on technicalities, as it has done many times in the past.
It is clear from what has been said that the Electoral Act is not yet aligned with the Constitution. This is most regrettable and does not augur well for the forthcoming elections.
There are other problems with the Act apart from its unconstitutionality:
· Unavailability: the only updated version of the Act currently available is the one on the Veritas website. An important requirement of the rule of law – a foundational principle of the Constitution – is that laws must be accessible, because, if people cannot find out what the laws are, they will not be able to obey them or know their rights under them. The Act should have been amended months ago and published in its amended form well before the election.
· Incomprehensibility: Those who can find an accurate copy of the Electoral Act will not find it an easy read. It is long, repetitive and sometimes obscure. It is five years since the last election, and Parliament had ample time to produce a new simplified Act.
· Errors: There are many errors in the Act that remain uncorrected. For example, the procedure to be followed after polling in a presidential election is dealt with by two sections, sections 37C and 110, which are inconsistent with each other.
It must be pointed out, however, that the deficiencies in the Act do not mean the elections will inevitably be unfree and unfair. A good Electoral Act does not guarantee good elections just as a bad one does not guarantee flawed elections. Much depends on the people who conduct and contest the elections: ZEC’s commissioners and staff, election observers, candidates, political parties and their supporters. If they condone or engage in violence, rigging or other malpractices the elections will be marred however good the Electoral Act may be. Conversely, if they conduct themselves as democrats should, the elections will be effective, free and fair even if the Electoral Act itself is inadequate.