ELECTION WATCH 8/2018

[9th May 2018]

Electoral Amendment Bill through Committee Stage

Parliament sat late last night until all the proposed amendments to the Electoral Amendment Bill had been dealt with.  Below is an extract from Votes and Proceeding indicating which amendments were approved and negatived.  To make sense of the Votes and Proceedings they will need to be read in conjunction with the Electoral Act [link] and the original Bill [link].  The approved amendments to the Bill have now been referred to the Parliamentary Legal Committee.

VOTES AND PROCEEDINGS OF THE NATIONAL ASSEMBLY TUESDAY, 8TH MAY, 2018

8.        Committee: Electoral Amendment Bill (H.B. 6, 2017)  –   The Minister of Justice, Legal and Parliamentary Affairs.

(House in Committee)

            Clause 1, put and agreed to.

            On New Clauses inserted after Clause 1,

            Hon. P. Misihairabwi-Mushonga, moved:

            After clause 1 on page 1 of the Bill, insert the following clauses and the subsequent clauses being renumbered accordingly¾

            2.  Amendment of the long title Cap 02:13

             The Electoral Act [Chapter 02:13], is amended in its long title by the insertion after the phrase “to establish the Electoral Court and provide for its functions;” of “to take into account the gender equality provisions in the Constitution;”.

            3.  Insertion of preamble of Cap 02:13

                            The Electoral Act [Chapter 02:13], is amended by the insertion of a preamble—

                        (1) The State must promote full gender balance in Zimbabwean society, and in particular-”

1. the State must promote the full participation of women in all spheres of Zimbabwean society on the basis of equality with men;
2. the State must take all measures, including legislative measures, needed to ensure that—

1. both genders are equally represented in all institutions and agencies of government at every level; and
2. women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament;

3. the State and all institutions and agencies of government at every level must take practical measures to ensure that women have access to resources, including land, on the basis of equality with men.

                            (2) The State must take positive measures to rectify gender discrimination and imbalances resulting from past practices and policies.”.

            4.  Amendment of section 4 of Cap 02:13

                    The Electoral Act [Chapter 02:13], is amended in section 4(“Interpretation”) by the

                        insertion after the definition of “fixed date” of the definitions—

                        “gender” means the social meaning given to being either female or male in a given society;

                          “gender equality” means the enjoyment by women and men of socially valued good opportunities, resources and rewards;”.

            5.  Amendment of section 5 of Cap 02:13

                   The Electoral Act [Chapter 02:13], is amended in section 5 (“Additional functions and

                    powers of Commission”) by the insertion of paragraph (d1) after paragraph (d), as follows—

                   “(d1) ensuring that gender is mainstreamed into electoral processes; and”.

            6.  Amendment of section 11 of Cap 02:13

       The Electoral Act [Chapter 02:13], is amended in section 11 (“Provisions to ensure independence, impartiality and professionalism of Commissioners and staff and agents of Commission”) by the insertion of in subsection (2)(a)(i) after the word “to” of “enhancement of gender equality,”.

            Amendment put and negatived.

On New Clause inserted after Clause 1,

            Hon. Gonese, moved:

            Between lines 7 and 8 on page 1 of the Bill, to insert the following clauses between clauses 1 and 2, the remaining clauses of the Bill being renumbered accordingly:

            “2        Amendment of section 4 of Cap. 2:13

                        Section 4 (“Interpretation”) of the Electoral Act [Chapter 2:13] (hereinafter called “the principal Act”) is amended

                        a)         in subsection (1)—

                        (i)         by the insertion of the following definition—

                        “appropriate registration office”, in relation to a constituency or ward,        means a registration office that is situated in that constituency or ward or            that normally registers voters on polling station voters rolls in that       constituency or ward;”;

                        (ii)        in the definition of “Commission” by the deletion of “means” and the substitution of “, subject to section 5A(3), means”;

                        (iii)       in the definition of “disciplined force” by the deletion of “Police Force or the Prison Service” and the substitution of “Police Service or the Prisons and Correctional Service”;

                        (iv)       by the insertion of the following definition—

““election petition” means an application to the Electoral Court for the election of a person to be set aside on the ground of lack of qualification, disqualification, electoral malpractice, irregularity or any other reason whatever;”;

                        (v)        by the repeal of the definition of “Electoral Court” and the substitution of—

““Electoral Court” means the Electoral Division of the High Court constituted by section 161;”;

                        (vi)       by the repeal of the definition of “general election” and the substitution of—

““general election” means a general election of the President, Vice-Presidents, members of Parliament and councillors of local authorities;”;

                        (vii)      by the repeal of the definition of “metropolitan council” and the substitution of—

““metropolitan council” means one of the councils established by section 269 of the Constitution for the metropolitan provinces of Bulawayo and Harare;”;

                        (viii)     by the repeal of the definition of “nomination paper in the prescribed form”, “nomination paper” or “nomination form” and the substitution of—

““nomination paper” means a nomination paper in the prescribed form;”;

                        (ix)       by the insertion of the following definition—

““polling station area” means the area served by a polling station, determined in accordance with section xxx;”;

                        (x)        by the repeal of the definitions of “proof of identity” and “proof of residence”;

                        (xi)       by the repeal of the definition of “voters roll” and the substitution of—

““voters roll”, subject to subsection (2), means the voters roll for a polling station area;”;

                        (xii)      by the repeal of the definition of “Zimbabwe Human Rights Commission”;

                                    (b)        by the repeal of subsections (2) and (3) and the substitution of the following subsections—

“(2)      Any reference in this Act to a constituency or ward voters roll shall be construed as a reference to the voters rolls for the polling station areas within the     constituency or ward concerned.

(3)        Where this Act refers to a person being registered on the voters roll of a constituency or ward or being registered in a constituency or ward, the reference shall be construed as meaning that the person is registered or is to be registered, as the case may be, on a voters roll for a polling station area within the constituency or ward.”.

            3          Amendment of section 5 of Cap. 2:13

            Section 5 (“Additional functions and powers of Commission”) of the principal Act is amended by the insertion of the following subsection, the existing section becoming subsection (1)—

            “(2)      The Commission shall have power to issue written instructions and guidelines to    voter registration officers, electoral officers and other employees of the Commission as to the manner in which they are to carry out their duties under this Act, and the employees concerned shall carry out their duties in accordance with such instructions and guidelines:

            Provided that—

            (i)         the Commission shall ensure that copies of all such instructions and guidelines are kept at its head office and at all provincial and district offices, where they may be inspected by the public, free of charge, at all reasonable times during normal business hours;

            (ii)        the provisions of this Act and of regulations made under this Act shall prevail over such instructions or guidelines in the event of any inconsistency between them.”.

            4          New section inserted in Cap. 2:13

            The principal Act is amended by the insertion after section 5 of the following section—

            “5A     Assumption and delegation of functions

(1)        For the better carrying out of the objects and purposes of this Act—

            (a)        the Commission may itself exercise any function which by this Act is assigned to any of its officers;

            (b)        the Commission may delegate any of its functions to the Chief Elections Officer or to any other of its employees or agents:

            Provided that the Commission shall not delegate any function that has been assigned to the Chairperson of the Commission;

            (c)        the Commission may assign any function which by this Act is conferred on any of its employees to any other of its employees or agents;

            (d)       with the approval of the Commission, the Chief Elections Officer may delegate any of his or her functions, including a function delegated to him or her under paragraph (b), to any of the Commission’s employees or agents.

(2)        A delegation or assignment under subsection (1)—

            (a)        may be made generally or specially and subject to such reservations, restrictions and exceptions as the Commission or the Chief Elections Officer, as the case may be, may determine;  and

            (b)        may be revoked at any time by the Commission or the Chief Elections Officer, as the case may be;  and

            (c)        shall be exercised subject to the direction or control of the Commission;  and

            (d)       shall not preclude the Commission or the Chief Elections Officer, as the case may be, from exercising the function concerned.

(3)        Where a function has been delegated or assigned in terms of subsection (1), any     reference in this Act to—

            (a)        the Commission, in relation to the function, shall be construed as a reference to the Chief Elections Officer or other employee or agent to whom the function has been delegated or assigned;

            (b)        the Chief Elections Officer or other employee, in relation to the function, shall be construed as a reference to the employee or agent to whom the function has been delegated or assigned.

(4)        This section shall not be construed as—

            (a)        limiting any other law which may permit the delegation or assignment of functions by the Commission, the Chief Elections Officer or any other employee of the Commission;  or

            (b)        absolving the Commission from responsibility for the manner in which the delegated or assigned function is exercised or for the conduct of the employee or agent to whom the function has been delegated or assigned.”.

            5          New section inserted in Part IV of Cap. 2:13

            Part IV (“Voter Registration Functions of Commission”) of the principal Act is amended by the insertion before section 17A of the following section—

“17      Commission to prepare voters rolls

After determining, in terms of section 51, the places where polling stations are to be situated and the areas to be served by those polling stations, the Commission shall prepare a voters roll for each polling station area in accordance with this Part.”.

            6          Amendment of section 18 of Cap. 2:13

            Section 18 (“Commission to register voters”) of the principal Act is amended—

            (a)        in subsection (1) by the repeal of the definition of “former Registrar-General of Voters” and the substitution of—

““former Registrar-General of Voters” means the member of the Civil Service who has custody and control of any voters rolls, databases and records, or any copies thereof, which—

            (a)        were in the custody and under the control of the Registrar-General of Voters immediately before the 1st July, 2016, being the date of commencement of the General Laws Amendment Act, 2016 (No. 3 of 2016);  and

            (b)        have not been transferred to the custody and control of the Commission;”;

            (b)        by the repeal of subsection (2);

            (c)        in subsection (4) by the deletion of “and the former Registrar-General of Voters, in his or her capacity as” and the substitution of “, the former Registrar-General of Voters,”;

            (d)       in subsection (5)—

            (i)         by the deletion of “may, after consultation with the Commission and the former Registrar-General of Voters,” and the substitution of “, with the approval of the Commission and after consultation with the former Registrar-General of Voters, may”;

            (ii)        by the repeal of paragraph (d).

            7          Amendment of section 20 of Cap. 2:13

            Section 20 (“Voters rolls to be kept by Commission”) of the principal Act is amended—

            (a)        by the repeal of subsection (1) and the substitution of—

“(1)      The Commission shall keep and maintain in printed and electronic form a voters roll for each polling station area, containing the names of all registered voters who may vote in that area.”;

            (b)        in subsection (2) by the insertion after paragraph (b) of the following paragraph—

            “(b1)    where the voter, through being illiterate or physically handicapped, requires assistance in exercising his or her vote, a note of that fact in the prescribed form;  and”;

            (c)        in subsection (4)—

            (i)         in paragraph (b) by the deletion of “each ward and constituency voters roll” and the substitution of “the voters roll for every polling station area within a constituency”;

            (ii)        by the repeal of paragraph (c);

            (d)       by the insertion after subsection (4) of the following subsection—

“(4a)  The Commission may prepare and maintain, in printed or electronic form, a consolidated national voters roll and a consolidated voters roll for any constituency or ward, but such rolls shall not be used for the purposes of polling in any election.”.

            8          Amendment of section 21 of Cap. 2:13

            Section 21 (“Inspection of voters rolls and provision of copies”) of the principal Act is amended—

            (a)        in subsection (1) by the insertion after “voters roll” of “, and every consolidated roll referred to in section 20(4a),”;

            (b)        by the repeal of subsection (2) and the substitution of—

“(2)  A person inspecting any voters roll in terms of subsection (1) may, without removing the roll from the office where it is kept—

            (a)        photograph or make a copy of the roll or any part of it;  and

            (b)        make written notes of anything contained in it.”;

            (c)        in subsection (3)—

            (i)         by the deletion of “within a reasonable period of time” and the substitution of “without delay”;

            (ii)        by the deletion of “ward or constituency voters roll” and the substitution of “voters roll, including a consolidated roll referred to in section 20(4a),”;

            (d)       in subsection (6)—

            (i)         by the deletion of “Within a reasonable period of the time” and the substitution of “Without delay”;

            (ii)        by the deletion of “constituency” wherever it occurs;

            (e)        in subsection (9) by the deletion from paragraph (b) of “makes use” and the substitution of “without the consent of the Commission, makes use”.

            9          Amendment of section 23 of Cap. 2:13

            Section 23 (“Residence qualifications of voters”) of the principal Act is amended—

            (a)        by the repeal of subsection (1) and the substitution of—

“(1)      Subject to the Constitution and this Act, in order to have the requisite residence qualifications to be registered as a voter on the voters roll for a particular polling station area, a claimant must be resident in the constituency or ward within which the polling station area is situated:

Provided that—

            (i)         if a claimant satisfies the voter registration officer that he or she is or intends to be a candidate for election in a constituency or ward in which he or she is not resident, the claimant may be registered as a voter in that constituency or ward;

            (ii)        if a claimant is qualified in terms of paragraph 1(1) of the Fourth Schedule to the Constitution to be registered as a voter, but is unable to satisfy the voter registration officer that he or she is resident in any particular constituency or ward, the claimant shall be registered on the voters roll for a polling station area in the constituency or ward within which he or she was born or, with his or her consent, in any other appropriate constituency or ward.”;

            (b)        in subsection (2) by the insertion after “constituency” of “or ward”;

            (c)        by the repeal of subsection (3);

            (d)       by the repeal of subsection (4) and the substitution of—

“(4)      A person who is registered in a constituency or ward shall, on demand by the Commission or a voter registration officer, provide the Commission or the officer with proof of identity and additionally, or alternatively proof that he or she is resident in the constituency or ward.”.

Amendment put and negatived.