Election Watch 22-2023 - Voters Rolls and Polling Stations

ELECTION WATCH 22/2023

[21st August 2023]

Voters Rolls and Polling Stations

The CCC party has complained to the Electoral Court that the Zimbabwe Electoral Commission [ZEC] has not supplied it with up to date copies of the voters rolls that will be used in the forthcoming general election, now only a few days away.  The party alleges that the rolls ZEC supplied it with are deficient, in that:

  • The names of at least 2 150 polling stations in the rolls do not match the names of polling stations published by ZEC on the 2nd August,
  • About 873 polling stations have been added and are not reflected in the rolls,
  • Some ward and constituency boundaries in the rolls do not match the boundaries that will be used on election day, and
  • Some voters have been added since ZEC supplied the rolls.

ZEC’s lawyers have not denied these allegations, apparently.  They simply responded that the distribution of polling stations has always been at the discretion of ZEC, and sections 20 and 21 of the Electoral Act do not require voters rolls to indicate the polling stations to be used in the election.

Is ZEC correct?  To answer that question we need to look at the provisions of the Electoral Act dealing with the establishment of polling stations, the preparation of voters rolls and the supply of rolls to political parties.  As we shall see, the provisions are not coherent and can easily be misinterpreted.

The Electoral Act

Establishment of polling stations

Section 51(1) of the Electoral Act states:

“(1)   Subject to this section, the Commission [i.e. ZEC] shall in each constituency establish, at such convenient places as it may determine, as many polling stations as it may consider to be necessary for the purposes of conveniently taking a poll of the voters in that constituency:

 Provided that the Commission—

              …

 (ii)   shall receive from political parties contesting the election concerned any representations on the issue of the location of polling stations in any constituency …”

The section goes on to say that polling stations must be accessible to the public and must not be sited in places where voters might be intimidated.  Subsection (3) of section 51 obliges ZEC to publish a notice at least three weeks before polling day listing all the places at which polling stations will be established.

On the face of it this section seems to support ZEC’s contention that it has a discretion about where to site polling stations, though its discretion is limited in at least three ways:

  • The places at which polling stations are established must be “convenient” for the public,
  • ZEC must receive representations from political parties about where polling stations are to be located – which suggests that ZEC must tell parties where it intends to establish polling stations and must invite their comments, and
  • The locations of polling stations must be fixed at least three weeks before polling day.
  • Further limitations on ZEC’s discretion are contained in other provisions of the Act which deal with the preparation and supply of voters rolls.

Preparation of voters rolls

Section 20(1), (2) and (4a) of the Electoral Act provide as follows:

“(1)   The Commission [i.e. ZEC] 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.

 (2)   A voters roll shall specify, in relation to each registered voter—

 (a)   the voter’s first and last names, date of birth, national registration number and sex;  and

 (b)   the place where the voter ordinarily resides;  and

 (c)   such other information as may be prescribed or as the Commission considers appropriate.

 (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.”

So each polling station must have its own voters roll, and these polling station voters rolls are the ones that will be used in any election.  Consolidated rolls will not be used.

Section 22A of the Act re-enacts these provisions and, at the risk of tedious repetition, it is worth setting out what the section says:

“(1)   The Commission shall—

 (a)   subject to section 51, determine—

             (i)  the places where polling stations are to be situated within each ward and constituency for the purposes of all elections in terms of this Act;  and

            (ii)  the areas within the ward and constituency concerned that are to be served by each such polling station;

 and

 (b)   … prepare a voters roll for each polling station area determined in terms of paragraph (a)(ii) …

 (2)   The Commission shall consult all interested parties when determining the location of polling stations and their areas for the purposes of subsection (1).

 (3)   Notwithstanding any other provision of this Act, where a voters roll has been prepared for a polling station area—

 (a)   voters who are registered on that roll shall cast their votes in any election at the polling station for whose area the roll was prepared …

 (b)   the provisions of this Act applicable to or in respect of … constituency and ward voters rolls, shall apply, with any necessary changes, to or in respect of the polling station … voters roll.”

This section makes it clear, in case there was any doubt, that:

  • Each polling station serves voters within a determined area, and voters resident within that area must vote at that polling station and no other,
  • ZEC must consult all interested parties when locating polling stations and determining their areas,
  • ZEC must prepare separate voters rolls for each polling station area, and
  • References in the Act to constituency and ward voters rolls should be construed as applying to polling station voters rolls.

Supply of voters rolls to political parties and candidates

Voters rolls are closed for the purpose of an election two days after the proclamation calling the election was published – section 26A of the Act.  Although voters can be enrolled after that [because voter registration must be conducted continuously – section 17A of the Act] they will not be entitled to vote in the election.  The proclamation calling this general election was published on the 31st May so all voters rolls were closed on the 2nd June.  After that ZEC had to prepare the final rolls and issue them to political parties – no new voters could be enrolled on them.

Political parties and candidates are entitled to copies of the rolls under section 21(4), (6) and (7) of the Act:

“(4)   Within a reasonable period of time after the calling of an election, the Commission shall provide, on payment of the prescribed fee, to every political party that intends to contest the election … one copy of every voters roll to be used in the election, either in printed or in electronic form as the party … may request.”

              …

 (6)   Within a reasonable period of … time after nomination day in an election, the Commission shall provide—

 (a)   free of charge, to every nominated candidate, one copy in electronic form of the voters roll to be used in the election for which the candidate has been nominated;  and

 (b)   at the request of any nominated candidate, and on payment of the prescribed fee, one copy in printed form of the voters roll to be used in the election for which the candidate has been nominated.

(7)    Where a voters roll is provided in electronic form ... its format shall be such as allows its contents to be searched and analysed”.

In the context of the current election, these provisions mean that within a reasonable time after:

  • the 2nd June (two days after the election was called) ZEC had to supply political parties, on request and on payment of a fee, with electronic or printed copies of all the final voters rolls to be used in the election, and
  • the 21st June (nomination day) ZEC had to supply candidates with one free electronic copy of the final voters rolls to be used in their constituency or ward elections and, for a fee, one printed copy of each of the final voters rolls.
  • In all cases the rolls to be provided were the polling station voters rolls, not consolidated national, constituency or ward rolls.  This is because only the polling station rolls can be used in the election – the consolidated rolls cannot be used:  see section 21(4a) of the Act, which we quoted earlier.  Where electronic copies of the rolls were provided, they had to be searchable.

Inconsistencies in the Act

It will have been obvious that the provisions of the Act we have quoted are not easy to understand and are not entirely consistent.  When the Act refers to voters rolls it is not always clear whether a polling station roll is meant, or a consolidated national, constituency or ward roll.  The confusion is confounded by the definition of “voters roll” in section 4 of the Act:

“voters roll” means (unless expressly otherwise specified) the voters roll for any ward”.

In light of sections 20(1) and 22A, this definition is sheer nonsense.

Back to the CCC Application

The CCC, as we said at the beginning of this bulletin, complains that the rolls it was given are inaccurate because some polling stations have been misnamed, further polling stations have been established that are not reflected on the rolls, and some new voters have been enrolled whose names do not appear on the rolls.

With respect, these complaints seem misplaced.  As we have said, the voters rolls which ZEC is obliged to supply parties and candidates under section 21 of the Act are polling station voters rolls, not consolidated national, constituency or ward rolls, because that section requires ZEC to supply the voters rolls that will be used in the election, and only polling station rolls can be used.  Each polling station roll lists the voters in a single polling station area so any additional polling stations that may have been created elsewhere cannot possibly be reflected or listed on it.

ZEC’s response to the CCC complaints is equally misplaced, and for the same reason.  It does not matter if a consolidated voters roll should or should not list the names and locations of polling stations:  what is important is whether or not ZEC has provided the CCC with up to date polling station voters rolls for all the constituencies and wards which the party is contesting.  That is the real bone of contention between ZEC and the CCC.

On the other hand, the CCC’s allegations raise serious issues:

They suggest that the party has not been given all the polling station voters rolls to which it is entitled.  If that is so, it means that ZEC has seriously prejudiced the CCC’s ability to contest the election – because political parties need voters rolls that are accurate and complete in order to contact voters and check electoral fraud.

The allegations, if true, also suggest that ZEC has been tinkering with the voters rolls long after they were supposed to have been finalised, has altered electoral boundaries long after the delimitation exercise ended, and has been registering voters after the rolls should legally have been closed.

The allegations are so serious they need to be investigated further.

Conclusion

It is not surprising that the lawyers representing both the CCC and ZEC in the court application have misunderstood the law.  The provisions of the Electoral Act relating to voters rolls and polling stations are confused and contradictory.  ZEC should probably have taken steps to try and get the law clarified, but the primary blame for leaving the law in its current unsatisfactory state rests with the Ministry of Justice, Legal and Parliamentary Affairs, the Ministry responsible for administering the Act.  The Ministry should have had the Act amended long before the election.

The Ministry is not to blame for the failure – if in fact there was a failure – to supply the CCC with electronic, analysable copies of all the voters rolls to be used in the election.  The blame for that lies squarely with ZEC.  Why ZEC should not have supplied all the polling station voters rolls, when it did so in the last election, is unfathomable.  Was it ignorance, or incompetence, or perhaps something worse?  Whatever it was it sows confusion.

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