ELECTION WATCH 21/2018
11th June 2018
Special Courts and Other Arrangements to
Counter Politically-Motivated Violence and Intimidation
Part XVIIIA and Part XVIIIB of the Electoral Act provide special measures for the investigation, prosecution and trial of cases of politically-motivated violence and intimidation, and the punishment of people convicted of such violence or intimidation.
The measures provided for are:
- Designating magistrates courts to deal with politically-motivated violence and intimidation.
- Requiring the Prosecutor-General to provide competent prosecutors deal with these case promptly.
- Requiring the Commissioner-General of Police to take measures to ensure that cases of politically-motivated violence and intimidation are properly investigated.
- Making candidates and office-bearers of political parties responsible for ensuring that their supporters do not engage in politically-motivated violence or intimidation.
- Special penalties that can be imposed for politically-motivated violence and intimidation.
Note: We recommend referring to Veritas’ Electoral Act (Consolidated 2018) [link] because it incorporates the amendments to Part XVIIIB made by the very recent Electoral Amendment Act, 6/2018, which came into force on 28th May.
1. The “Special Courts”
Press and CSO reports have hailed provisions for setting up “special courts” under the Electoral Act to try cases of politically-motivated violence and intimidation. In fact these provisions are not new. They were inserted in the Electoral Act before the 2013 elections, in section 133J(3) which provides that:
- immediately after an election has been called the Judicial Service Commission [JSC] must “designate one or more magistrates in each province … to try cases involving politically-motivated violence and intimidation”. The JSC has already designated 52 magistrates for this purpose and gazetted their names in GN 379/2018 dated 1st June [link] – 5 for Harare province, 6 for Manicaland, 4 for Mashonaland Central, 7 for Mashonaland East, 6 for Mashonaland West, 7 for Masvingo, 8 for Matabeleland North [including Bulawayo], and 7 for Matabeleland South.
- magistrates so designated must “give priority” to cases of politically-motivated violence and intimidation and “ensure that they are brought to trial and completed as expeditiously as possible”.
Although the courts of these magistrates have been called “special courts” they are not in fact special courts – they will continue to deal with routine business but have to give priority to election-related cases. And election-related cases can be heard by other magistrates courts, and even by the High Court if they are serious enough.
Note: These courts do not hear election petitions against the results of elections. Election petitions are heard by the Electoral Court, which is a division of the High Court.
The Prosecutor-General must ensure that during the election period [i.e. from the 30th May to the declaration of the results of the election] “sufficient competent prosecutors are provided to ensure that all cases of politically-motivated violence and intimidation are processed quickly and brought to court as soon as possible” in the designated magistrates courts.
3. Commissioner-General of Police
The Electoral Act obliges the Commissioner-General of Police to take the following steps to ensure that cases of politically-motivated violence and intimidation are speedily investigated and where appropriate sent for prosecution:
- for the purposes of the general election, to appoint a senior police officer for each of ZEC’s provincial command centres as the special police liaison officer responsible for expeditious investigation of cases politically-motivated violence and intimidation.
- immediately after the election proclamation is gazetted, to establish one or more special police units to investigate cases of politically-motivated violence and intimidation.
Functions of special police liaison officers
Whenever a special police liaison officer considers an incident of politically-motivated violence or intimidation has occurred, he/she may:
- if a candidate or his/her election agent was the perpetrator, warn the candidate that he or she may be prosecuted and prohibited from campaigning
- if a supporter of a party or candidate was the perpetrator, warn the party leader or candidate that he/she has an obligation to prevent supporters from engaging in politically-motivated violence or intimidation, that prosecution may ensue and that the candidate may be prohibited from campaigning
- if the special police liaison officer believes the incident is very extensive or serious, or if a warning has gone unheeded, report it to a prosecutor appointed to a designated magistrates court.
Functions of special police units
Special police units are tasked with investigating “as expeditiously as possible” all cases of politically motivated violence and intimidation referred to them by the police, a multiparty liaison committee, ZEC or the Zimbabwe Human Rights Commission, or which otherwise come to their attention.
4. Responsibilities of Political Parties and Candidates
The Electoral Act makes political parties and candidates responsible for taking appropriate measures to prevent politically-motivated violence and intimidation from occurring in the first place.
These responsibilities are:
- Every candidate and election agent and every “office-bearer” of a political party contesting an election must:
- before, during and after the election period, take all appropriate measures to prevent politically-motivated violence and electoral malpractices.
- whenever called on by ZEC to do so, publicly undertake to abide by the Code of Conduct for Political Parties and Candidates in the Fourth Schedule to the Act [this means the new Code enacted by the recent Electoral Amendment Act].
- Political party officer-bearers must, in addition, take effective steps to discipline party members who engage in politically-motivated violence and electoral malpractices.
“Office-bearer” is not specially defined, so it must be given its ordinary meaning: any party member holding a party office at any level, from national leader down to local branch, is an office-bearer. An ordinary party member or supporter is not.
5. Special Additional Penalties on Conviction for Election Related Offences
Designated magistrates courts and the High Court will be able to punish perpetrators of politically-motivated violence and intimidation up to the limit of the courts’ criminal jurisdiction. In the case of violence – crimes such as assault, murder and so on – the penalties are laid down in the Criminal Law Code. In the case of intimidation, the Electoral Act lays down a maximum penalty of a fine of $700 or five years’ imprisonment or both.
In addition, designated magistrates and the High Court will have power to impose further election-related penalties on perpetrators:
For politically-motivated violence or intimidation: Both courts will be able to prohibit perpetrators from campaigning or taking further part in the election. If a perpetrator is a registered voter, he or she will still be able to cast a vote in the election and, if he or she is a duly nominated candidate, his or her name may still appear on the ballot paper, but these are the only exceptions.
For politically-motivated violence or intimidation, and also for preventing parties or candidates from campaigning and stealing or destroying voter identification documents: the High Court will have power to prohibit perpetrators, for the next five years, from being registered as voters or voting in an election, or filling a public office. The prohibition does not extend to public offices whose tenure is regulated under the Constitution, so it would not prevent a perpetrator from being appointed to a constitutional Commission, for example, or – more importantly – from being elected to Parliament.
What are the Offences that are subject to these Penalties?
Politically-motivated violence is not defined in the Electoral Act, but its ordinary meaning is clear: it would cover any violent crime – assault, murder, malicious damage to property, public violence, for example – committed with a political motive.
Politically-motivated intimidation in the Electoral Act is the employment of intimidation in order to achieve the following:
- compelling/attempting to compel a person to sign/not to sign a nomination paper
- preventing/attempting to prevent a candidate from lodging a nomination paper
- compelling/attempting to compel a person or persons generally not to vote, or to vote for a political party or candidate
- compelling/attempting to compel a person or persons generally to attend/participate in any political meeting, march, demonstration or other political event
- persuading/attempting to persuade a voter that it will be possible to discover how he or she has voted – and, by implication, that retribution will follow if he or she voted for the wrong candidate.
Two other crimes are also classified as intimidatory practices in the Electoral Act:
- preventing or obstructing/attempting to prevent or obstruct a political party or candidate from campaigning in an election.
- preventing or discouraging another person from voting, by taking, destroying or damaging any proof of identity, voter registration certificate, or other document by which that person may be identified as a voter.
As noted above, the High Court can prohibit persons from being registered as voters, from voting and from holding public office if they are convicted of these crimes.