ELECTION WATCH 1/2022

[1st September 2022]

Fees for Observing and Contesting Elections : Part 1

The Legal Background

On the 19th August the Zimbabwe Electoral Commission [ZEC] published three statutory instruments which increase the fees for obtaining voters rolls, for observing elections and for contesting elections.

SI 145/2022 [link] increases the fees which ZEC will charge for providing voters rolls, as follows:

The new fees are between five and ten times the old ones.

SI 143/2022 [link] increases the fees for the accreditation of observers, as follows:

The fees for local observers and media practitioners remain unchanged;  the other fees have been increased by between 100 and 600 per cent.

Finally, SI 144/2022 [link] increases the nomination fees payable by candidates and parties seeking election to the presidency, the Senate, the National Assembly and provincial councils:

The fees payable by candidates, it will be seen, have been increased twentyfold, while the fees payable by parties have doubled.

The steep increases in all these fees have outraged civil society organisations and political parties, which see them as an attempt to stifle opposition.  On the other hand the Minister of Justice, Legal and Parliamentary Affairs – who approved the increases – has sought to justify them by saying they will ensure that only committed, serious candidates contest elections.

In this, the first part of a two-part series of Election Watches, we shall look at the legal background against which the new fees must be viewed, namely the Constitution, the Electoral Act and international conventions and treaties to which Zimbabwe is a party.  In the second part we shall assess the legality of the new fees viewed against this background.

Legality of Fees and Charges

We should begin by setting out the grounds on which fees that are prescribed in terms of a statute by a Minister or a body such as ZEC may be declared illegal by a court.

Essentially there are two grounds on which they may be declared illegal and set aside:

1.   If the fees have been prescribed for an improper purpose, i.e. for a purpose that is not authorised by the statute;  for example if they are so high that it is clear they are intended to prevent people doing what the law allows them to do.

2.   If the fees are so high as to be grossly unreasonable.  They must not just be unreasonable:  the unreasonableness must be gross, unless the statute specifies a different standard – which the Electoral Act does for the prices of voters rolls, as we shall see.

Both these grounds are based on the rule that the power to make regulations under a statute must be exercised for the purposes stated or clearly implied in the statute, or [if there are no such purposes] generally in order to give effect to the statute.

The fees that we are considering were prescribed under the Electoral Act, and to ascertain the objectives of that Act one needs to look first at the Constitution, which sets out the principles by which elections are to be conducted, and then at the Act itself.

The Constitution

Section 67 of the Constitution gives Zimbabwean citizens the following rights:

·      To free, fair and regular elections,

·      To participate in the activities of political parties of their choice, and

·      To campaign freely and peacefully for political parties and causes.

Importantly in the present context, section 67(3)(b) gives “every Zimbabwe citizen who is of or over eighteen years of age” the right to stand for election for public office.  Every adult citizen is given this right, not just citizens who are wealthy or who are members of political parties.

Section 155 of the Constitution, which sets out principles by which elections must be conducted, says in subsection (2)(c) that the State must:

“ensure that all political parties and candidates contesting an election … have reasonable access to all material and information necessary for them to participate freely”.

Voters rolls fall within the class of materials necessary to enable political parties and candidates to participate in elections.

The Electoral Act

Section 3 of the Electoral Act, which sets out general principles by which elections are to be conducted, states that:

·      Every citizen has the right to stand for office [Note that once again every citizen is given this right, not just those who are wealthy or are sponsored by well-off political parties],

·      Every political party has the right to put up or sponsor one or more candidates in every election, and to have reasonable access to all material and information it needs to participate effectively in elections, and

·      All candidates have the right to reasonable access to all material and information they need to participate effectively in elections [This echoes section 155(2)(c) of the Constitution].

Section 21 of the Act requires ZEC to provide copies of voters rolls in the following circumstances:

·      ZEC must provide a copy of a roll, in printed or electronic form, to everyone who requests it “and who pays the prescribed fee”,

·      Once an election has been called, ZEC must provide all political parties contesting the election with copies of the roll to be used in the election, “on payment of the prescribed fee”,

·      After candidates have been nominated in an election, ZEC must provide every candidate with a free electronic copy of the roll to be used in the election and, “on payment of the prescribed fee”, with a printed copy of the roll.

·      According to section 21(5), the fees charged for rolls must not exceed the reasonable cost of providing them.

Regional and International Agreements

Before discussing the new fees in the light of the above provisions of the Constitution and the Electoral Act, it is worth looking at some international instruments to which Zimbabwe is a party, because these instruments must be taken into account when interpreting the Constitution [see sections 46 and 331 of the Constitution].

The African Charter on Human and Peoples’ Rights

Article 13 of the Charter states that:

“Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the law.”

The African Charter on Democracy, Elections and Governance

Article 17 of the Charter reaffirms the African Union’s Declaration on the Principles Governing Democratic Elections in Africa, which states in article IV.2 that:

“Every citizen shall have the right to fully participate in the electoral processes of the country, including the right to vote or be voted for …”

Also, the preamble to the Charter recognises the importance of election observer missions as an important contributory factor to ensuring the regularity, transparency and credibility of elections.

SADC Principles and Guidelines Governing Democratic Elections

Article 4.1 of the Principles says that Member States commit themselves to upholding certain principles in the furtherance of democratic elections, including:

“4.1.1  Encourage the full participation of all citizens in democratic and development processes”.

This provision, like those of the two African Charters we quoted above, emphasise that all citizens must be able to participate in elections, not just by casting their votes but also by standing for election.

As to election observation, article 1.3 of the SADC Principles recognises that it should be a fundamental component of democratic processes in the SADC region.

To Be Continued

It will be clear from what we have said in this bulletin, and from the provisions of the Constitution, the Electoral Act and international instruments that we have cited, that the validity of the new fees is doubtful to say the least.  In Part 2 of this series of Election Watches we shall go on to see how far those doubts are justified.