ELECTION WATCH 2/2022
[2nd September 2022]
Fees for Observing and Contesting Elections : Part 2
The Validity of the New Fees
On the 19th August the Zimbabwe Electoral Commission [ZEC] published three statutory instruments, SI 143/2022 [link], SI 144/2022 [link] and SI 145/2022 [link], which increase the nomination fees required to contest elections, as well as the fees for accreditation as election observers and for obtaining copies of voters rolls.
In Part 1 of this series of Election Watches [link] we set out the new fees and looked at the legal background against which they must be viewed. In this Part we shall go on to assess the validity of the new fees, looking at each set of fees individually because slightly different considerations apply in relation to each set.
First though we should make some general points.
Grounds on which Fees may be Held to be Invalid
In Part 1 we set out the principles by which our courts will assess the validity of the fees. It may be helpful to set them out again:
The fees will be held to be invalid if they are so high as to be grossly unreasonable. An old English judgment, still followed by our courts today, said that a decision, including a decision to fix a fee, will be regarded as grossly unreasonable if:
· it is partial and unequal in its application to different classes, or
· it is manifestly unjust, or
· it discloses bad faith, or
· it involves such oppressive or gratuitous interference with peoples’ rights that it can find no justification in the minds of reasonable people.
A lower standard of unreasonableness however applies to the fees for provision of voters rolls because, as we saw in Part 1, the Electoral Act says that those fees must not be more than the reasonable cost of providing the rolls.
The fees will also be ruled invalid if they have been fixed for an improper purpose, i.e. for a purpose that is not authorised by the Electoral Act. For example, if they are intended to prevent or discourage people from obtaining voters rolls, or from being accredited as election observers or from standing for election; if that is their purpose they will be invalid.
Ultra Vires or Unconstitutionality
Finally, a court will rule the fees invalid if, regardless of the intention of the persons who prescribed them, their effect is to nullify or frustrate the objectives of the Electoral Act or to nullify or unduly limit a right conferred by the Constitution.
General Points to be Considered
When assessing the validity of the fees, we need to keep in mind several points:
1. The Constitution gives all adult citizens, not just those who belong to political parties, the right to participate in politics and to stand for election. Any limitations on their rights must not just be fair and reasonable, they must actually be necessary in a democratic society.
2. Elections are essential to democracy, and the State must encourage its citizens to participate in them, and to participate not just by casting their votes but also by standing for election, whether by themselves or through political parties.
3. The State has a duty, which it must exercise through ZEC, to conduct and facilitate elections, and it cannot seek to recover its costs from the participants. It would be outrageous, for example, if the State were to charge citizens fees for entering polling stations and casting their votes. Is it no less outrageous for the State to charge candidates high fees for standing for election?
4. The new fees, like the old ones, are fixed in United States dollars, which is a fairly stable currency. The increases are not, therefore, due to inflation.
We now turn to look at the new fees individually.
Fees for Provision of Voters Rolls
As we pointed out in Part 1, section 21(5) of the Electoral Act states that these fees must not exceed the reasonable cost of providing copies of the rolls – not the cost of compiling the rolls, it should be noted, but of providing copies of them. Registering voters and compiling rolls is undoubtedly a costly exercise, but ZEC cannot seek to recoup the cost from people who buy copies of the rolls. Providing copies does not cost much: in the case of electronic copies, it involves no more than copying a computer file on to a storage device such as a flash drive or emailing a file to a recipient.
The new fees are between five and ten times the old ones, which were fixed in 2017. If the new fees are no more than the reasonable cost of providing voters rolls, then either the old fees were far below that cost or else the cost has risen dramatically in five years. Neither alternative seems credible.
The conclusion is inescapable that the new fees are invalid.
Fees for Accreditation of Observers
Not all these fees have increased, nor have the increases been uniform:
· The fees for accrediting local observers and local media practitioners have remained the same, at US$10.
· The fees for accrediting foreign observers from African countries have risen from US$20 to US$100 – a fivefold increase.
· The fees for accrediting foreign observers from non-African countries have risen from US$50 to US$300 [for embassy staff] and from US$100 to US$400 [for other foreign observers].
Unreasonableness of the differentiation
Both the old fees and the new ones discriminate between local observers, observers from Africa and observers from elsewhere. There is no rational reason for the discrimination, because a person can be a competent and credible election observer no matter where he or she comes from. And the cost of accrediting observers is much the same, wherever they are from. The only possible reason for the differential increases is political prejudice, and that is not a rational reason.
The fees operate partially and unequally between different classes of observers; there is no rational reason for distinguishing between the classes; hence the fees are grossly unreasonable according to the test we set out above.
Increases will discourage electoral observation
There is another ground for regarding the new fees as invalid, which is that they are so high they will discourage foreigners from observing our elections.
In Part 1 we noted that the African Charter on Democracy, Elections and Governance and the SADC Principles and Guidelines on Elections both emphasise the importance of independent observers in ensuring that elections are transparent, credible and democratic – all qualities that are essential for elections held under our Constitution and Electoral Act.
For both these reasons, the new fees should be regarded as invalid.
The nomination fees for candidates have been increased twentyfold, to US$20 000 for presidential candidates and US$1 000 for constituency members of the National Assembly, while the nomination fee for party lists has been doubled to US$200 per list.
Staggering though these increases are, it is more important to look at the effect of the new fees rather than the extent to which the fees have been increased.
Individuals who want to stand for election as President will have to pay US$20 000 out of their own funds, a sum that is beyond the reach of all except the very wealthy. Even the US$1 000 that candidates have to pay to be nominated for election to the National Assembly is unaffordable by most people. If the candidates are standing for a political party they can expect their party to pay their nomination fees, but even political parties will struggle to find the money. Any party that aspires to win a general election and form a government has to win not only the presidency but also a majority of seats in the National Assembly and the Senate. That means the party must contest the presidency and all or most of the seats in Parliament; it should also contest seats in provincial councils and local authorities if it wants its influence to extend to local levels. The cost of doing this, in nomination fees alone, will be enormous:
One presidential candidate.................................................. 20 000
210 constituency members of the National Assembly.......... 210 000
10 party lists for women members of the Assembly................. 2 000
10 party lists for youth members of the Assembly.................... 2 000
10 party lists for Senators..................................................... 2 000
10 party lists for provincial councils........................................ 2 000
Total: 238 000
How many parties will be able to afford such amounts, and where will the money come from? Not from government funding under the Political Parties (Finance) Act, unless it is drastically increased. In 2021 Z$200 million – US$365 750 at current rates of exchange – was allocated to political parties. Of this amount Z$140 060 000 (US$256 130) was paid to the ruling ZANU-PF party and the remaining Z$59 940 000 (US$109 615 ) went to the MDC Alliance; nothing at all went to the CCC party. Realistically, therefore, with nomination fees at the new level, only ZANU-PF will have a hope of nominating a full slate of candidates in the next general election.
It should be remembered that nomination fees, unlike the deposits which candidates and their parties had to pay before 2012, are not refunded if the candidates win election.
It should be obvious from what we have said that the new nomination fees are invalid:
· They are inimical to multi-party democracy, one of the principles of good governance that are the country’s foundational values in terms of section 3(2) of the Constitution.
· They deny citizens of moderate means their right to stand for election, granted to them by section 67(3) of the Constitution, section 3(b)(i) of the Electoral Act and international instruments to which Zimbabwe is a party.
· They are grossly unreasonable, in that they are partial and unequal (i.e. they discriminate unfairly) as between rich people and poor people.
Christian scripture teaches us that it is easier for a camel to go through the eye of a needle than for a rich man to enter into the Kingdom of God. Now however rich people have a consolation prize, thanks to ZEC’s new fees. By eliminating poor people from elections, ZEC has made it much easier for the rich to enter State House and Parliament.
We have concluded that all the new electoral fees – those for copies of voters rolls, for accreditation as election observers, and for nomination as candidates – are invalid.
The only justification offered for the new fees is that they will ensure that only serious people contest elections. It may be necessary to eliminate entirely frivolous candidates, but the new fees go too far. In Britain years ago a pop musician who called himself Screaming Lord Sutch contested parliamentary elections on behalf of his Monster Raving Loony Party. He never won an election, but his candidacy showed the public that there is a place for light-heartedness in politics, that elections should not always be treated as life and death affairs. More seriously he served to remind voters that some politicians are monstrous raving loonies. That is something we must all remember, and the people who remind us of it should be prized, not priced out of existence.