ZIMBABWE’S parliament is preparing to debate and adopt the new Electoral Amendment Bill that was gazetted on January 3 2014.
Election Resource Centre
The mentioned Bill seeks to amend the Electoral Act (Chapter 2:13) (the principal Act) and it remains pertinent to point out that the Bill contains clauses that render it unconstitutional and unable to positively influence a change in the architecture of electoral management in Zimbabwe.
Against this background, the Election Resource Centre (ERC), strongly urges parliament to block the passage of the Bill in its current state.
The Bill states that in addition to correcting anomalies and discrepancies in the Electoral Act, it further makes other amendments to ensure its conformity with the applicable provisions of the new constitution.
The ERC is convinced that this Bill deserves urgent reconsideration from parliament on the basis of the following:
Unconstitutionality of the Bill
The proposed Amendment Bill is patently unconstitutional as illustrated by the following four points:
In terms of voter education, the Bill does nothing to change Section 40c of the Electoral Act, whose definition of voter education is arguably overly broad. Voter education is defined in the Act as a “programme of instruction on electoral law”.
The Human Rights Commission in their July 2013 election report raised similar concerns, especially noting the possible violation of the freedom of expression in the interpretation of the section. The Bill should clearly define voter education with the due attention in ensuring that it does not violate citizens’ right to freedom of expression and assembly;
The Bill sustains ambiguity over the management and control of the voters’ roll. While the constitution gives the Zimbabwe Electoral Commission (Zec) the responsibility to register voters and compile a voters’ roll (Section 239), the Bill does not change the current provisions in the Electoral Act as amended, which gives the same mandate to constituency registrar of voters who are under the supervision of the Registrar-General of voters. Failure to address this anomaly firstly is in contradiction to the spirit of the Bill and it provides for the violation of constitutional provisions in terms of the mandate of Zec;
The Bill compromises the independence of Zec in violation of the new constitution. While the new constitution emphasises the independence of the commissions, including Zec, the Bill reinforces and entrenches the powers of the executive through the Minister of Justice. For instance, under the Bill, neither can Zec receive any money from local or foreign sources nor can it make regulations relating to the conduct of elections without the authority of the Minister of Justice, and
The Billsfurther violates the constitution in that it does not fully grant the right to vote to all Zimbabweans, for example, while Section 67 of the constitution protects the right of all adult Zimbabweans to vote in all elections, the Bill does not confer the same rights to Zimbabweans in the diaspora, prisoners and those that may be hospital patients during the time of the polls.
Deficiencies of the Bill
The proposed Bill has potential deficiencies that cannot be ignored:
Provision for the closure of the voters’ roll 12 days after nomination — such a provision allows voter registration to continue after nomination and brings the compilation of the final roll too close to the election date.
The voters’ roll for the July 2013 polls remains unavailable in an electronic format. The Bill should therefore seek to address challenges of previous elections and not perpetuate them. Closing voter registration early, especially noting that the law provides for this to happen on a continuous basis, will allow for extensive interrogation of the final voters’ roll before the polls which will not happen if the registration continues nearly two weeks post-nomination;
Clause 24 of the Bill provides for the continued use of registration slips. The clause reinforces the practice of using registration slips as proof of registration, and allowing access to voting by adding the requirement to produce proof of identity.
While the intention of the provision could be well-meaning, the provision should be tightened taking into account the reports of voter registration certificates misuse in the last elections. The expectation was that the amendment deals with the potential weaknesses of using registration slips when there is a voters’ roll that should be credible.
The use of registration slips even with proof of identity can contribute to an election not being verifiable, thus violating provisions of the constitution.
The use of registration slips is potentially open to fraud and there is need to provide safeguards on their use so as to curtail abuse, and Clauses 33 and 34 of the Bill reinstate postal balloting while abolishing special voting. The introduction of special voting ahead of the 2013 election was in line with international practice, while also dealing with the challenges associated with the postal voting which had in the past compromised the secrecy of the vote. It is difficult to understand how the administrative flaws of special voting process in 2013, arguably deliberately shambolic, could cause a return to postal balloting which threatens the secrecy of the vote.
The Bill is badly drafted
As illustrated by Veritas, which monitors parliamentary activities, generally the Bill is badly written, and has some errors for example:
The definition of “disciplined force” which Clause 5 will insert in Section 4 of the Act, for example, refers to the police force and the police service, which under the new constitution are called the Police Service and the Prisons and Correctional Service;
In the same clause, the new definitions of “metropolitan council” and “provincial council” refer to the incorrect sections of the constitution; the definition of “metropolitan council” is inaccurate;
Clause 38 of the Bill repeals Section 109 of the Act and inserts a new section which duplicates most of the existing Section 110, hence there will be two sections in the Act saying much the same thing, but not altogether the same — the new Section 109 says that the chairperson of Zec must announce the results of a presidential election, whereas Section 110 says that the chief elections officer must do so;
Recognising the above, the ERC implores parliament to seriously consider blocking passage of the Bill outside significant changes to the content and text of the amendments.
Additionally, proceeding with the Bill without inclusion of recommendations which emerged from the recently held Zec post-election review conference is tantamount to putting the cart ahead of the horse as it is only logical that the drafters of the Bill should have acted on recommendations from electoral stakeholders after the Zec-initiated consultative process.
The Election Resource Centre is a think tank, advocacy and citizen mobilisation institution on elections and democracy.