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ELECTORAL AMENDMENT BILL
SECOND READING SPEECH TO NATIONAL ASSEMBLY
BY MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Thursday 10th April 2014
NOTE BY VERITAS
After the Minister’s speech and a contribution from
Hon Chimanikire, debate was adjourned
until Tuesday 13th May
ELECTORAL AMENDMENT BILL
First Order read: Second Reading: Electoral Amendment Bill
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (MR. MNANGAGWA):
Mr. Speaker Sir, the Government is committed to holding free and fair elections. Consequently, steps have been taken to amend the electoral laws so as to improve the conduct of future elections. The Bill before the hon. members will correct the anomalies and discrepancies in the Electoral Act and other amendments, so that it is in line with the new Constitution.
Mr. Speaker Sir, leading to the 2013 Harmonised elections, the Electoral Regulations were passed through Section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. This was a result of the urgency of the matter following the Constitutional Court of Zimbabwe’s decision in the case of Mawarire v. Robert Gabriel Mugabe and others (Judgment No. CCZ/1 13). As we are all aware, any Regulations passed through the Presidential Powers valid for a period of six months and to follow the normal Parliamentary processes to pass as law thereafter.
The Bill amends the Electoral Act [Chapter 2:13], to bring into line conformity with the provisions of the Constitution of Zimbabwe, 2013, for instance, the provision in respect of the 60 Senators, 60 women members of the National Assembly and 80 members of the nonmetropolitan provinces. Parliament as it is constituted now, is in accordance with the Constitution and there is need for the enabling legislation to be in line with the provision in the supreme law.
At this point, let me address some of the concerns that have been addressed to me by some hon. members about this Bill. The gist of these concerns is that this Bill does not align the Electoral Act in every respect with the new Constitution. To those members, I have said that this Bill does not purport to complete the constitutional alignment process. This Bill is only preliminary to another Bill which I will soon bring before Parliament to complete all the remaining matters in the Electoral Act that require alignment with the Constitution. The Bill before you does fulfil many crucial tasks of alignment with the Constitution, as I have outlined above, but primarily it embodies the points of agreement on the electoral reform that was reached between the participating political parties in the Inclusive Government which itself was the fruit of extensive consultations, involving ZEC. Hon. members who participated in that process know what a long and arduous process that was, fraught with controversy over almost every major point of contention between the parties. Even those issues which appeared to some people to be simply matters of realignment with the Constitution require extensive consultation and difficult policy choices.
Let me refer you to what the Constitution enjoins us to do in Section 155(2):
“(2) The State must take all appropriate measures, including legislative measures, to ensure that effect is given to the principles set out in Subsection (1) and, in particular, the State must –
a) Ensure that all eligible citizens, that is to say the citizens qualified under the Fourth Schedule, are registered as voters;
b) ensure that every citizen who is eligible to vote in an election or referendum has an opportunity to cast a vote, and must facilitate voting by persons with disabilities or special needs;
c) ensure that all political parties and candidates contesting an election or participating in a referendum have reasonable access to all material and information necessary for them to participate effectively;
d) provide all political parties and candidates contesting an election or participating in a referendum with fair and equal access to electronic and print media, both public and private; and e) ensure the timely resolution of electoral disputes”
This is a tough agenda for Parliament to fulfil. In order to realistically achieve it, a fair balance must be struck between, on the one hand, affording enough time for consultations so that a fair hearing is given to the opinions of all major stakeholders, and, on the other hand, achieving speedy Constitutional alignment. Take for instance, the duty of the State to “facilitate voting by persons with disabilities or special needs”.
During the consultations between the parties that resulted in the present Bill, a proposal was made to have a separate voters’ roll for the disabled, at least for the purpose of voting for the two senators who must represent the interests of the disabled persons. After much debate and consultation, this was not found to be a feasible option, given the time available but it may become feasible in the near future.
I also refer you to the duty of the State to “ensure the timely resolution of electoral disputes”. In one of the workshops held by ZEC to sensitise the political parties on the proposed electoral reforms, it was proposed that the Electoral Code of Conduct be made legally binding on the parties, and that ZEC should have power to levy fines and civil penalties against political parties or candidates who violate the Code. On further examination, it was found that ZEC did not have adequate resources to adjudicate electoral disputes of this nature, but that it might have the resources to do so in the future.
Finally, let me refer you to an extract from Section 67 of the Constitution, on political rights. Subsection (2) (a) reads as follows:
“(2) Subject to this Constitution, every Zimbabwean citizen has the right –
a) To form, to join and to participate in the activities of a political party or organisation of their choice;”
How can the State best realise a citizen’s right to “participate in the activities of a political party or organisation of their choice?” Does this mean that ZEC should have a role in organising the primaries of political parties, whether compulsorily or at the request of the parties concerned? On further consultation, it was found that this proposal did not find favour with the political parties concerned at the time, nor did ZEC want to embroil itself in the internal workings of political parties, but it thought that it was a desirable provision, if the political will existed to implement it.
I am only saying this to show you that further consultations on electoral reform at this stage cannot bear fruit quickly and that accordingly, I urge members to pass this Bill as a preliminary measure to the other measures that have to be undertaken. I agree that the full Constitutional alignment of the Electoral Act must happen as soon as practicable. This Bill is the start of that process. Let me also assure members that ZEC has been consulted on the contents of the Bill, both before and after the last elections. How can we avoid consulting a body that must implement the changes that Parliament must eventually enact? ZEC has made additional proposals to us and consultations are on-going.
It is therefore, not true to say that we have failed to comply with Section 157 (4) of the Constitution, which reads as follows:
“(4) No amendments may be made to the Electoral Law, or to any subsidiary legislation made under that law unless the Zimbabwe Electoral Commission has been consulted and any recommendations made to the Commission have been duly considered.”
Consultations have indeed been made, as all relevant stakeholders must be engaged. Not the least of those stakeholders is the Registrar- General’s office. We must prepare properly and thoroughly for the day when ZEC is able to produce its own voters’ rolls relying on its own databases. We cannot tolerate a situation where the databases of ZEC and those of the Registrar-General’s office are in conflict with each other, especially on issues of citizenship and certifications of death. The databases of ZEC and Registrar-General’s office on these issues must be in complete harmony in order for ZEC to keep up to date an unimpeachable national voters’ roll. However, I am prepared to introduce, at Committee Stage, amendments to remove all reference to the “Registrar-General of Voters” and substitute with the “Commission”, together with adequate transitional provisions to ensure a smooth hand over of the relevant databases.
Finally, let me highlight the great urgency of this Bill. When my Ministry engaged in some preliminary post-election consultations with ZEC on electoral reform and constitutional alignment in November last year, there was already a vacancy in the Senate, caused by the untimely death of Hon. Senator Kangai. We were unable to fill it because by that time, the Presidential Powers regulations were close to expiry. God forbid that any vacancy should arise in the National Assembly requiring a by-election, because the existing Electoral Act is now out of conformity with the Constitution, since the lapsing of the Presidential Powers regulations. If we delay in implementing this measure and such a vacancy arises, the legitimacy of that by election under the present dispensation will no doubt be challenged. I refer hon. members to Section 158 (3) of the Constitution:
“158 (3) Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred, unless the vacancies occur within nine months before a general election is due to be held, in which event, the vacancies may remain unfilled until the general election.”
In the absence of this Bill, we will need to resort to the Presidential Powers Act to bring the Act back into conformity. But since the Presidential Powers Act has already been invoked in this matter, the Act requires us to wait for a further period of six months from the last expiry of the regulations, that is, from the 13th December, 2013. In addition, some hon. members and some legal experts have expressed doubts about the validity of the Presidential Powers Act, under the New Constitution (although we in Government do not share those doubts). If, then we are unable to comply with section 158 (3) of the Constitution in the event of a by-election, the result will be a constitutional crisis, for which none of us wants to be held responsible.
I, therefore, reiterate that this Bill marks the beginning of the constitutional alignment process with respect to the Electoral Act. I undertake to hon. members, to complete the consultations on the outstanding alignment issues before the end of the year.
This now brings me to the Bill before the hon. members; I will highlight some of the major changes to the Electoral Act.
Mr. Speaker Sir, Clause 4 of the Bill specifies general principles of democratic elections, namely the citizen’s right of access to information so as to participate in the electoral process. Clauses 6 and 7 are on the Zimbabwe Electoral Commission and provides for the procedure to be followed by the Commission in the promotion of free and transparent elections.
Mr. Speaker Sir, Zimbabwe is party to the Conventions on people with disabilities. It is imperative therefore, that this special group of people have their voices heard in Parliament. The Bill provides for the appointment of two senators to represent persons with disability in accordance with section 120 (1), paragraph (d) of the New Constitution. This reflects that the Government is keen on upholding the rights of persons with disabilities.
The Bill has also increased the number of election agents who are permitted to be in the immediate vicinity of the polling station from one to two persons. This allows for the smooth running of elections as either one can relief each other.
Mr. Speaker Sir, Clause 7 provides for the Commission to adopt and adapt its procedures in such a manner as to promote fairness and transparency in the performance of its functions. This is a very important clause, Mr. Speaker Sir, as it hinges on the professionalism and accountability of the Commission. In the same vein, Clause 9 of the Bill will demystify the definition of a political office and make it clear that the Commission is non-partisan. It will provide for the independence, impartiality and professionalism of the Commission and its staff.
Mr. Speaker Sir, Clause 17 provides that the accreditation of election observers will be done by an Observer Accreditation Committee. The final decisions on such application will rest with the Zimbabwe Electoral Commission. It also shifts the role of the Observer Accreditation Committee from “passive scrutiny”. All observers shall apply for accreditation no later than the fortieth day before the General Elections. A dual system of accreditation has been introduced, i.e. at the national level (for foreign observers) and at the provincial level (for local observers).
Mr. Speaker Sir, at the present moment, voters who have registered to vote but whose names do not appear on the voter’s roll on the election day, may vote if they produce proof of registration in the form of a voters registration certificate. To guarantee against fraud, forgery and multiple voting, Clause 17 therefore, requires the voter concerned to produce proof of identity in support of such certificate.
Sections 120 and 130 of the principal Act provide for the drawing of lots in the presence of the Chief Elections Officer in cases where two top candidates in an election to Parliament or local authority are tied up. Clause 43 has now substituted this provision by providing that in such a scenario, a run-off by-election for the seat in question must be held. Mr. Speaker Sir, Clause 13 intends to insert a new provision in the Principal Act to enable political parties to submit in advance to the Commission for scrutiny, nomination papers for constituency and partylist candidates for the purpose of ensuring the smooth and expeditious processing of those papers on actual nomination days. The new provision will also enable political parties to designate through the Commission, the names of political party office bearers at the national and provincial level who will be empowered to certify nomination papers and other electoral documents to avoid the double or multiple nominations of political party candidates.
Clause 33 of the Bill deals with postal voting. Electoral officers and members of the Police and Defence Forces who are away from their constituencies on electoral duty will be allowed to vote in advance. In the past, some electoral officers failed to cast their ballot because they will be attending to voters and do not have time to visit their respective polling stations. This clause re-instates the right of members of the disciplined forces and electoral officers who will be away from their constituencies on security or official duties to vote by postal ballot.
Mr. Speaker Sir, hon. members will note that the amendments to the Electoral Act address issues of concern to all the political parties for the benefit of future elections. The amendments will go a long way in addressing the legal impediments to the holding of free, fair and credible elections.
Mr. Speaker, I commend the Electoral Amendment Bill [HB. 7, 2013] to the House and move that the Bill be now read a second time.
MR. CHIMANIKIRE: Thank you Mr. Speaker Sir. From the presentation of the hon. Minister, if I am quoting him right; he indicated that the amendments to the Electoral Bill are as a result, partly to an agreement reached between parties to the G.N.U. Mr. Speaker Sir, in the absence of members of this House, being furnished with a copy of that agreement which refers to the Electoral Law Agreement between the parties, it is a bit difficult to accept the facts presented before us.
The issue Mr. Speaker Sir is that the Oversight Committee that is supposed to have gone through this Bill and made its first representation to this House has not done so. I think it is only fair that this Committee be accorded the opportunity to consult the stakeholders; hold Public Hearings and after that report to Parliament so that we can proceed. – [HON. MEMBERS: Hear, hear.] – Mr. Speaker, if I were – [HON. MEMBERS: Inaudible interjections.] – Mr. Speaker, am I protected?
Mr. Speaker, if I got the hon. Minister correct, he indicated that this is a preliminary Bill; underline ‘preliminary’. In other words, he is accepting publicly in this House that the Bill is not sacrosanct and it is not complete in the present form. One can only suspect that this Bill is being rail-roaded through this House for a specific reason that has nothing to do with the legislative issues of this House that we are supposed to be responsible for. I submit that the oversight Committee should be involved. There should be extensive public consultations because there are certain grey areas that are in this proposed Bill.
There is the issue of the vote of those who are in the diaspora. It is also universally accepted that every Zimbabwean is entitled to a right to vote no matter where they may be on the day of voting. There is also the issue of the timetable when voter registration is supposed to close after nomination. That is an area of concern because from our experience in the last elections, we could not access the voters’ register because the Registrar was saying it was not worth. If we are going to close registration of voters 12 days after nomination, that means the voters’ roll will not be available to various candidates including those candidates from the other side who are making noise.
It is not very clear; the hon. Minister has promised that he is prepared to include certain amendments in as far as the issue and role of the Registrar-General is concerned vis-a-vis the constitutional provision that it must be ZEC which should be responsible for voter registration. Access to the server according to the presentation of the Minister; there is an excuse to say there are no resources. Voting in this country is such an essential part of each and every citizen that it is not adequate to give an excuse of resources when it comes to putting across legislation that should allow everyone to be able to vote.
Unless and until it is clearly spelt in the Bill that ZEC is going to be responsible for registering of voters, I believe that some members here do not know that I am a Member of Parliament –[HON. MEMBERS: Inaudible interjections.]-
The other area of concern is the continued use of voting slips contained in the Bill. Voting slips were abused in the last elections and hence, there should be no provision in the law where you say the Registrar-General is going to prepare the handover of data. If the Constitution stipulates that he should handover the data necessary for ZEC to operate voter registration, that must be done and the law must be very clear. There should be no doubt in the law. In other words, the preliminary approach should not be accepted by this House – [HON. MEMBERS: Inaudible interjections.] – I believe that my submission is just and therefore, I propose that the Bill be handed over to your Committee to carry out its oversight role.
I thank you.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (MR. MNANGAGWA): Mr. Speaker Sir, the practice is that after the Second Reading, we give opportunity to Members of Parliament to debate the philosophy of the Bill. I am agreeable and I have indicated to members of the opposition that after my presentation of the Second Reading, they now have a basis to look at it, examine and debate. Possibly, if they have any new ideas, they can put forward and I will take them on board at Committee Stage level. So, I am not closing the debate – [HON. MEMBERS: Hear, hear.] –
Secondly, I wish to enlighten the previous speaker. He is totally lost as to what… – [HON. MEMBERS: Hear, hear.] – In terms of the Constitution and practice, a Bill has to be published for 30 days for the public to know what Government intends to do. This was published last year and it has been in the public domain for more than six months. In May last year, I am not sure whether the member was a Member of Parliament but I know that he is able to read – [HON. MEMBERS: Hear, hear.] – In May last year, after the Constitutional Court case that compelled the President of the Republic to make regulations regarding the conduct of elections; we passed, as the Executive, the Presidential Temporary Measures Regulations of the same Bill. They were passed last year in May. So, we are now, in terms of the law – they only have to exist for six months. Beyond that period, they expire. We brought these regulations last year in November to this House within the period required by the law in order to pass these regulations which were already enforced. There is nothing that is new.
The alignment we are talking about is the question of broad alignment of the Constitution’s various statutes but with regards to this provision, he is not aware that the regulations governing the elections were agreed upon by the Inclusive Government in Cabinet. He was not one of the negotiators but he still has the right to consult his colleagues on that side who participated in the production of these regulations – [HON. MEMBERS: Hear, hear.] –
Mr. Speaker Sir, I would want to move that we – [AN HON. MEMBER: Ngaisiye matambo.] – Ngaisiye matamboka? Kwandinobva ini ndiri mambo. Ukanzwa munhu waunotonga ati ngaisiye matambo, wochirega kuramba uchienda mberi uchiponda. – [Laughter.] – Mr. Speaker, I now move that the debate do now adjourn to facilitate Portfolio Committees to attend to the issues they would want to raise and bring them on board when I deal with the Committee Stage of the Bill. I thank you.
MR. SPEAKER: There has been some procedural glitch which the Hon. Minister will correct.
THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (MR. MNANGAGWA): Thank you Mr. Speaker Sir. I move that the debate on the Second Reading be adjourned to afford opportunity to colleagues on both sides of the House to look into my statement, analyse it and possibly come up with their own views before I go to Committee Stage. I move that the debate on the Second Reading be adjourned.
Motion put and agreed to.
Debate to resume: Tuesday, 13th May, 2014.