The text of the emailed version of Election Watch 8/2023 is set out immediately below
and is available for downloading as a Word document as the first downloadable document.
The second downloadable document is the attachment to the emailed Election Watch
containing the text of the Notice of Amendments
setting out in full Veritas Suggested Amendments to the Electoral Amendment Bill.
 

ELECTION WATCH 8/2023

[28th February 2023]

 Veritas’ Suggested Electoral Amendments

The Electoral Amendment Bill is undergoing its Second Reading in the National Assembly.  It was published in November last year and when we analysed it in Election Watch 7/2022 [link] we found it did not address several deficiencies in our electoral law.  Two Members of Parliament, Hon Gonese and Hon Hwende, have give notice of extensive amendments they will put forward when the Bill reaches its Committee Stage in the Assembly – see [link] for both.  Their amendments will meet some of the Bill’s shortcomings but not all of them. 

Members of the ruling party may have suggested other amendments to the Minister, but if so they have not yet been made public.

Veritas’s Suggested Amendments [attached]

In Veritas’s view several further amendments should be made to the Bill, and in the public interest we are publishing them in an attachment to this bulletin.  Any member of the National Assembly may like to take them up or members of the public may want to lobby for them.  All our suggested amendments are politically impartial and are put forward with a view to ensuring a successful 2023 election.

The amendments address the following issues:

Postal voting

Section 72 of the Electoral Act allows only the following people to vote by post:

• Persons who will be on duty as members of the security forces or as electoral officers,
• Public servants on duty outside Zimbabwe and their spouses.

The effect of this is to deny many potential voters the right to cast their votes.  Veritas’s amendments will allow any registered voter to claim a postal vote if on polling day :

• he or she will be detained in hospital or prison or in a similar institution, or
• he or she will be on duty as a member of the security forces or as an electoral officer, or
• he or she will be absent from his or her constituency or ward, whatever the reason for the absence.

Electoral challenges (election petitions)

The Electoral Act makes it difficult to challenge elections.  Challenges are made by petition under Part XXIII, and there are excessive restrictions on who can challenge elections and the grounds on which they can do so.  Veritas’s amendments seek to facilitate and expedite challenges in the following ways:

• Who may institute a challenge:  Under section 167 only unsuccessful candidates are allowed to present a petition challenging an election.  The new section 167 will extend this right to voters who are registered in the constituency or ward where the election took place.
• Grounds for challenging an election:  These will be greatly extended, to cover the qualifications (or lack thereof) of the winning candidate, electoral malpractices, mistakes committed by ZEC and other persons administering elections, and breaches of the Constitution and the Electoral Act.  Furthermore, the amendments will allow elections to be set aside if they do not conform with constitutional principles for elections.
• Standard of proof required in an election petition:  the amendments will make it clear that the ordinary civil standard of proof (a balance of probabilities) will be required for all factual issues.  There will be no question of requiring allegations of criminality to be proved beyond a reasonable doubt.
• Technicalities:  The amendments will make it clear that courts should avoid technicalities and deal with the real issues raised in election petitions.
• When elections to be set aside:  Apart from widening the grounds on which elections may be set aside, the amendments will reduce the onus of proof on petitioners.  Whereas under the existing section 177 of the Electoral Act a petitioner (i.e. a person who challenges an election) has to prove that a mistake or irregularity on which he or she relies affected the result of the election – something that is always difficult and often impossible to prove – the amendments will provide that elections must be set aside if a material irregularity is proved to have occurred, unless it is shown that the irregularity did not affect the result.
• Time-limit for petitions:  Under section 182 of the Electoral Act, petitions must be finalised within six months and electoral appeals within three months.  This time-limit has not been effective in speeding up electoral proceedings.  Veritas’s amendments will state that if a petition or appeal lapses because it was not finalised within the time-limit, the lawyers who represented the parties will be personally liable to pay the costs and will be deprived of their right to fees from their clients, unless they can satisfy the Electoral Court that they were not responsible for the delay.  That, in Veritas’s view, will give lawyers an incentive to see that electoral proceedings are completed promptly.

Disqualifying offences

Clauses 2, 7 and 9 of the Bill seek to prevent persons who have been convicted of certain criminal offences (called “disqualifying offences”) from standing for election.  It is not legally possible to do this, as we pointed out in Election Watch 7/2022.  Section 125 of the Constitution sets out the grounds which disqualify persons from being elected to the National Assembly, and the section is exhaustive:  it is not permissible for an Act of Parliament to add to the grounds.

Our amendments will therefore delete these provisions from the Amendment Bill.

Misuse of State resources for electoral purposes

State resources have often been misused in elections by office-holders to gain an unfair advantage over their electoral opponents.  Veritas’s amendments will insert a new section in the Electoral Act that will make such conduct a corrupt practice.

Proof of identity

Clause 2 of the Bill proposes to amend the definition of “proof of identity” in section 4 of the Electoral Act so that drivers licences can no longer be used as proof of identity for voting.  This will prevent voters from using their drivers licences at polling stations to prove their identities, which will prejudice those who are not carrying their passports or IDs.

Veritas’s proposed amendments will leave the definition of “proof of identity” as it is, so that it includes drivers licences, but will amend section 24(6) of the Electoral Act so that when persons apply to be registered as voters, they can be asked to produce any document reasonably needed to establish that they are citizens.

Notice of withdrawal of candidates

Under clause 8 of the Bill, if a candidate withdraws from an election the Chief Elections Officer will have to give notice of the withdrawal in all newspapers circulating in Zimbabwe.  This is expensive and unnecessary because the withdrawal of a constituency candidate is not of general interest outside the constituency.  Veritas’s amendments will require notice of withdrawal to be given only within the candidate’s constituency.