Implications of electoral legislation

By Otto Saki

“IF a person cannot walk into the middle of the town square and express his views without fear of arrest, imprisonment, or physical harm, then that person is living in fear society, not a

free society,” said Nathan Sharansky


Introduction


Constitutional law and international human rights law make it implicit on Zimbabwe to conduct regular and genuine elections. Everyone is entitled to take part in the government of his country either directly or through freely chosen representatives, without distinction on any grounds.


The war of liberation in Zimbabwe was fought as a result of the need to have equal suffrage and for that we have to acknowledge the role of the freedom fighters but are we going to be eternally grateful if the rate at which we attained those rights is being superseded by the desire and thrust to undermine them? When people say they fought for majority rule in essence, they are saying they fought to attain free and fair elections.


Since independence our government has kept us in a perpetual state of fear. There is always a terrible evil at home or some monstrous foreign power that intends to gobble us. The relationship of such paranoia to elections is obvious as evidenced by the laws which have been enacted since the last major election or referendum and lately attempts to level the electoral field by passing of the Zimbabwe Electoral Commission Act and the Electoral Act.

The role of the media in elections can never be underestimated for the media is a tool for influencing opinions and change in every democracy.

The free practice of the profession of journalism is an issue of concern with regards to the coming elections.


The democratic process and the development of every human being are options, for which the protection of freedom of expression is essential.

Principles


Principles for conducting democratic elections include that any poll shall allow full participation of the citizens in the political process, inclusiveness, intra-party democratic culture, political party institutional development, freedom of association and political tolerance. The principles also include regular intervals for elections as provided for by the respective constitutions, equal access to the state media for all parties, equal opportunity to exercise the right to vote and to be voted for, independence of the judiciary and impartiality of the electoral institutions and voter education.


These democratic principles are internationally accepted and locally recognised and should therefore be respected, promoted, enforced and fulfilled.


Zimbabwe Electoral Commission Act


The Act creates the Zimbabwe Electoral Commission whose mandate is to prepare for and conduct the elections for the office of the president, parliament, local authorities and referendums. The commission is also mandated to ensure that those elections and referendums are conducted efficiently, freely, fairly and transparently and in accordance with the law. It is also expected to direct and control the registration of voters, to compile voters’ roll and registers and to ensure the proper custody and maintenance of voters’ rolls and registers and to design and print ballot papers.

Zimbabwe Electoral Commission


The appointment of members of the Zimbabwe Electoral Commission lies in the domain of the office of the president and the Judicial Service Commission. Many recommendations were made by the civil society headed by Zimbabwe Election Support Network but these seem to have yielded no results.


Some of the recommendations were that a five-member commission should be appointed by parliament from nominees put forward by a bi-partisan parliamentary committee; parliament would have to appoint the nominees by a two-thirds majority, to ensure that the appointees are generally acceptable, or a nine-member commission should be appointed by parliament from nominees put forward by the Judicial Service Commission, the Law Society, parliament and the National Association of Non-Governmental Organisations (Nango).


The Judicial Service Commission, in consultation with the Law Society, would nominate the chairman, who would have to be qualified to be a judge. Parliament would appoint four of the remaining members from nominees selected by a bi-partisan parliamentary committee, and the Law Society and Nango would elect the remaining four, or a 15-member commission should be constituted with up to a third of its members being suitable foreigners, perhaps drawn from electoral commissions in the Sadc region.


Reasons for such varied from the need to have an inclusive and representative commission. In light of the current state of the appointment of members of the commission, some key sectors of society and opposition parties still question the degree of independence of the commission.


Voter education


Voter education will be a prerogative of the commission and political parties. The restrictions which are imposed on other entities to provide voter education are wide and far from the constitutional mark. For one to be allowed to conduct voter education you will have to be citizens or residents of Zimbabwe, or associations consisting wholly of citizens or residents; the courses of instruction has to be approved by the commission; organisations or individuals involved in such voter education should not receive foreign funding for such activities.


The Act makes specific reference to the NGO Act, which is not yet in force as the regulating law for the registration of organisations that intend to carry out voter education. Some of the provisions of the NGO Act have been criticised for their obvious effect of strangulation of the civil society in Zimbabwe. The definition of issues of governance includes the promotion and protection of human rights, which in earnest can be deemed to include voter education for it falls on issues of good governance and human rights.

Sections 13,14,15, and 16 of the Zimbabwe Electoral Commission Act can be described as an affront to constitutionalism and democracy. Such provisions beg the abundance or lack of wisdom on the part of the government or the drafters.


Democratic elections


Section 3 of the Electoral Act stipulates the general principles of a democratic election, which is a reaffirmation of international standards of the right of citizens to participate in governance issues through freely chosen representatives. This should be achieved without distinction on any grounds to join a political party of one’s choice, to participate in peaceful activities to influence and challenge policies of government and to influence the composition and policies of government. This is a laudable provision for it attempts to regularise the general conduct of elections to meet the recognised international democratic standards.


The further inclusion in the Act that all political parties shall be allowed to campaign freely within the law and have reasonable access to the media is commendable. But the reality on the ground is yet to establish the extent of adherence to the same by the government through the Zimbabwe Broadcasting Holdings. There is a need however to have reporting of a balanced nature, without use of hate language, racial attacks which in the past has been the style of reporting in the state media towards electoral periods.


Election monitors


A monitor means a person appointed and accredited in terms of the Act. The monitors are to be recruited from members of the Public Service. This is a dangerous provision for it allows the government to use individuals or particular sections of the Public Service, which are considered to be sympathetic or apologetic to the establishment.


The Electoral Supervisory Commission is empowered to appoint monitors from the Public Service and deploy them to every polling station. The reasons of appointing and deploying members of the Public Service as monitors still escapes many. Accountability has been raised as one of the reasons, but seems unsatisfactory in the sense that if there is a code of conduct for the general role of the monitors, anyone who is accredited as a monitor should be bound by that code.


Civil society should have been included in the process of appointing and accreditation of observers and monitors.


Postal voting


Postal voting in elections in Zimbabwe has remained an exclusive right for those who are away from Zimbabwe such as a member of the armed forces, or a spouse to such a person or an electoral officer. This provision is discriminatory to other citizens and nationals who are outside the confines of Zimbabwe for various reasons.


The government has objected to the fact that those in the diaspora should vote on the basis that it is unconstitutional. Excluding Zimbabweans in the diaspora from participating in the political process clearly discriminates against them and I contend that this is outlawed under Section 23 of the Constitution of Zimbabwe.


In addition to the protection against discrimination in the constitution, the government promulgated the Prevention of Discrimination Act Chapter 8:16 which prohibits discrimination on a number of grounds, thus proving beyond doubt that the government is indeed committed to non-discrimination.

The provisions of the Electoral Act must of necessity be interpreted in such a way that all of the freedoms and protections that are afforded Zimbabweans under international and constitutional human rights law are fully protected and that this can be done by ensuring that arrangements are made for Zimbabweans in the diaspora to vote in general and presidential elections as and when they are held.


Countries in the Sadc region such as Botswana and Mozambique have been able to carry out such processes of allowing their citizens to participate in the elections in their countries. No justifiable reason has been given by the government to deny the diaspora the right to vote. It is ironic that the state has been imploring those in the diaspora to contribute to the development of Zimbabwe through the Homelink scheme.


Electoral Court


Electoral disputes should be solved within a reasonable period of time to allow citizens to be given a second chance to express themselves if the court deems the elections a nullity. During the 2000 Parliamentary elections a number of constituency results were contested. The President had issued regulations under the Electoral Act (Modification) No 3 SI 318/2000 which sought to legalise the outcome of the elections and oust the jurisdiction of the courts in dealing with electoral petitions. The opposition took the matter to the Supreme Court, which remarkably ruled that:


“The MDC had a civil right to partake on an election that was free and fair and devoid of corrupt or illegal practices, to challenge the result of an election which was claimed to be tainted by corrupt and illegal practices and to seek practical and meaningful redress in the form of a High Court order certifying that the results were tainted. The notice effectively deprived them of that right. The right of full and unimpeded access to courts is of cardinal importance for the adjudication of justiciable disputes.”


This decision was to say the least was a “brutal full men” or in ordinary parlance English an empty thunderous order for all the election petitions were not solved and the judiciary passed the buck onto the litigants themselves. The Electoral Court will not be spared of the troubles, which have haunted the present judiciary. Perceptions of dependence and partiality, administrative delays and pitfalls will also beleaguer the court. There are no provisions to stop the president from issuing regulations in terms of the Presidential Powers to legalise the outcome of the elections.

Broadcasting Services Act


This Act has created a monopoly of the airwaves, which has been challenged in a number of court cases. The Electoral Act stipulates that political parties shall have reasonable access to the media. Then Information minister Jonathan Moyo in response to the provisions said access to the media was not an actionable right that could be claimed.


And further to that, newspapers have been allowed through their editorial policies not to highlight materials of political parties they don’t feel like publishing. Under the Act Section 2(1) of the Fifth Schedule, “during the election period a broadcaster broadcasts election matter, the broadcaster shall give reasonable and equal opportunities for the broadcasting of election matter to all parties contesting the election”.


The Act defines election time to be 30 days before the polling day for the elections and ends at the close of polling day or the last day of polling. This provision should be repealed for the fact that before the election period, the ruing party has unfettered access to the state controlled media.


The issue which this provision raises is of freeing the airwaves. While the state has contended that you can’t have a country that is perpetually in election mode from January to December, this view shows the narrowed view of the importance of freeing the airwaves and reflection of the notion that the state still has to retain the monopoly of the airwaves and determine what is newsworthy or not newsworthy for Zimbabweans. To some an election is an event while to some it’s a process, which starts way before the actual polling days. The Act has retained a limited, narrow and shortsighted definition of election time.


There are laws, which might not be directly related to electoral periods such as the Access to Information and Protection of Privacy Act and Public Order and Security Act, but have a direct impact on the enjoyment of rights related to participation of citizens in an election. This includes as the right to freely assemble and express one’s views.


*Produced for the Zimbabwe Election Support Network by Otto Saki — projects lawyer, Zimbabwe Lawyers for Human Rights.