CONSTITUTION WATCH 2012
[5th October 2012]
How Will the New Constitution Impact on Elections
In Part I we outlined the changes that a new constitution will make to Zimbabwe’s electoral system. In this Part we shall set out what other major steps need to be taken to ensure that the next general election is free, fair and peaceful and not a repeat of the 2008 debacle.
The New Constitution Alone will not Create Conditions for a Free and Fair Election
During the long-drawn-out constitutional drafting process, commentators, press reports, etc, have suggested that the new constitution would go a long way to ensure the next general election would be free and fair. In fact the new constitution will not in itself create those conditions, as we indicated in Part I. A great deal will need to be done to create conditions under which free and fair elections can be held.
SADC Heads of State and government at their recent summit at Maputo urged the parties to the GPA: “to develop a roadmap together with timelines that are guided by requirements of the processes necessary for the adoption of the constitution and the creation of conditions for free and fair elections to be held.” This roadmap was in fact agreed by the parties and presented to an extraordinary SADC summit in Johannesburg in June 2011, but it left some unresolved issues and failed to state some time-lines. Very few of the “agreed issues” have been implemented. Now, with time running out before the next elections must be held, the SADC Organ Troika is reported to have recommended that a Cabinet mechanism be established to secure agreement on the unresolved issues and oversee implementation of the roadmap. [There is no evidence yet that this Cabinet mechanism has been set up.]
Any legislation to regulate the conduct of the next election, must be passed before the 29th June 2013 [because after that there will be no Parliament to pass it] and the general election itself must be held before the 29th October 2013. [Note: the life of Parliament could be extended by Parliament passing an amendment of the Constitution to that effect; otherwise it can only be prolonged if Zimbabwe is at war or if there is a state of public emergency.]
What Must be Done Before Free and Fair Elections can be Held
1 Measures directly related to elections
As outlined in Part I, the new constitution spells out who is to be elected and who will be entitled to elect them, but apart from requiring some elections to be held under a system of proportional representation it does not deal with the way in which elections are to be held. A great deal of legislative and administrative work remains to be done.
The Electoral Act will have to be amended or replaced
Under the new constitution some seats in the Senate and the National Assembly and in provincial councils will be filled by elections on a system of proportional representation. [Note this applies to provincial councils under the COPAC draft; but ZANU-PF want this changed – see Part I] The Electoral Act currently requires all elections to be held on a first-past-the-post system so the Act will have to be amended to allow the holding of elections under the new system. The elections of provincial council members will also have to be provided for [unless the amendments proposed by ZANU-PF are adopted]. Very extensive amendments will be needed to do this — far more than those contained in the recently-gazetted Electoral Amendment Act — so the Electoral Act may have to be replaced in its entirety.
The voters’ roll will have to be revised or a new roll prepared
The existing voters’ roll is generally regarded as completely inaccurate, stuffed with the names of voters who have long since died. Although the Registrar-General has stoutly defended the roll’s accuracy, his defence has not been endorsed by the Zimbabwe Electoral Commission, which is nominally responsible for compiling the roll. An accurate voters’ roll is essential for the holding of a fair election, so the existing roll will have to be revised or a new roll will have to be compiled. This will take at least six months — far longer than the 60 days specified in the new constitution — though the work could begin immediately, and new voters such as prisoners provided for by the new constitution could be added later.
New delimitation exercise desirable As pointed out in Part I, the new constitution will not alter the current number of constituencies for elections to the lower House of Parliament, and there will be no other constituency-based elections. Hence the next general election could theoretically be held on the basis of the existing constituencies. It would, however, be better to have a fresh delimitation exercise, because there have been doubts about the accuracy and fairness of previous delimitations and there has been a new population census since the last one. A fresh delimitation will take at least six months if it is to be done properly, because delimitation is not just a matter of drawing lines on maps: the present Constitution and the COPAC draft [and the ZANU-PF amended draft] require the Electoral Commission to consider “any community of interest between registered voters”, and one cannot do that without asking voters if they have a community of interest.
Voter Education Voter education will have to be undertaken by ZEC or ZEC approved organisations. There will inevitably be large numbers of young, first-time voters on a properly-compiled new voters roll. Even for long-standing voters, education will be necessary to ensure that there is understanding of the changes made to election procedures by a new Electoral Amendment Act.
Preparations for monitoring of elections
With a past history of electoral violence and contested election results in Zimbabwe, the system for national and international electoral observers needs revision to ensure that:
- the observers are drawn from a wide spectrum of opinion
- the observers are allowed to monitor all aspects of the electoral process, from the registration of voters to the announcement of results
- the monitoring period extends from well before the election itself until at least a month after the results have been announced.
The Electoral Act does not provide for this extended type of monitoring, though the Electoral Amendment Act which has recently been gazetted will allow observers to be accredited to cover the period before an election is actually called. If the first elections under the new constitution are to be credibly monitored, the legal position of observers will have to be strengthened.
2. The Electoral Environment
For an election to be free and fair it is not enough for voters’ rolls to be accurate, for constituencies to be properly delimited or for the Electoral Act to be clear and comprehensive. The environment in which the election takes place must allow all parties and candidates that wish to do so to contest the election and put their cases fully to the electorate.
Some of the mechanisms and measures that are needed were specified in the Zimbabwe Elections Roadmap which, as already mentioned, was tabled at an extraordinary SADC summit in June 2011:
- The State-owned broadcasting and print media must be reformed to make them politically neutral, enabling the electorate to hear views other than those of ZANU-PF. This may be done, as suggested in the Roadmap, by appointing new boards of the Zimbabwe Broadcasting Company, the Broadcasting Authority of Zimbabwe and the Mass Media Trust.
- New, genuinely independent, broadcasters must be licensed.
Rule of law
- The commanders of the Police Force, the Defence Forces and the CIO must commit themselves to operate in a non-partisan manner, consistent with their obligations under article 13.1 of the GPA. This is particularly important in the light of statements by senior army officers that they will not recognise a non-ZANU-PF government.
- More importantly, the commanders must take appropriate measures to prevent politically-motivated violence on the part of the members of their forces and, generally, to ensure the political neutrality of their forces.
Freedom of assembly and association
Even though the new constitution guarantees these freedoms, its provisions will not be effective until they are incorporated into statute law. The Public Order and Security Act [POSA] must be replaced or further amended to reduce the discretion given to police officers to prohibit political meetings, and to ensure that any discretion they do have is exercised only to avert readily foreseeable disorder. Until this is done anyone who wants to challenge the existing law will have do it through a constitutional application to the Supreme Court, and that is likely to take so long that the election will be over before a decision is reached.
Freedom of speech
The Access to Information and Protection of Privacy Act [AIPPA] must be replaced or amended to allow genuine freedom of speech during elections. In particular, the prohibition against denigrating the President must be amended to allow the President to be questioned and criticised at election times just like any other politician.
Time-Frame for These Reforms
All these reforms must be instituted as soon as possible because there is not much time left for them to be implemented. The deadline for the next elections is dictated not by agreement on the new constitution, but by the life of Parliament under the present Constitution. Parliament was elected in March 2008, and under section 63(4) of the present Constitution it lasts for five years from the date on which the President was sworn in. Mr Mugabe was sworn in on the 29th June 2008 after the run-off presidential election, so the life of the present Parliament ends on the 29th June 2013, when Parliament will stand dissolved. In terms of section 58(1) of the Constitution, a general election must be held within four months after Parliament stands dissolved, so the next general election must be held before the 29th October 2013. [The life of Parliament can be extended if Zimbabwe is at war or if there is a state of public emergency, but one hopes neither of those eventualities occurs]
As a result, any legislation to regulate the conduct of the next election, must be passed before the 29th June 2013 [because after that there will be no Parliament to pass it] and the general election itself must be held before the 29th October 2013.
If the next general election is to be held under the new constitution, then, in addition to the electoral reforms we have outlined, the new constitution itself will have to be enacted while there is still a Parliament – i.e. before the 29th June 2013.
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