Our system of elections: Part 1

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Now that July 30 has been announced as the election date, it is important for the electorate to get a broader overview of the electoral system.

Alex Magaisa,lawyer

Our system of elections is harmonised, which means presidential, parliamentary and local authority elections are all held at the same time. This was not always the case. Prior to the 2008 elections and after the 1990 elections, the presidential election was held separately. The presidential term was six years, while parliament had a five-year term.

In this series, we will attempt to look at critical aspects of the electoral system, explaining the process and highlighting areas of concern that need to be carefully watched. We will also highlight opportunities that can be exploited to promote a free, fair and credible election, which is critical to the question of legitimacy, an important aspect to the forthcoming polls.

Complex system

Our electoral system is incredibly complex, partly because of the numerous piecemeal amendments to the electoral law, which have made it look like a patched-up pair of old trousers. It has multiple patches which give it a hideous look. The task of explaining the electoral system would be a complete nightmare, were it not for the excellent service provided by Veritas, an organisation which painstakingly ensures that the electoral law is updated as and when amendments are made to it.

Electoral authority

It is common knowledge that the body responsible for running elections in Zimbabwe is the Zimbabwe Electoral Commission (Zec). It has the constitutional mandate to manage or organise all elections, which function it must exercise independently. In a democracy, an election is a process that gives procedural legitimacy to the government.

Procedural legitimacy requires elections to be conducted fairly and voters must able to make their choices freely. The electoral authority is the fulcrum of this process. It has the duty to ensure that the election is free, fair and credible. As the referee, Zec must not only be fair, non-partisan and impartial. It must be seen to be fair, non-partisan and impartial.

Zec took over from a predecessor whose reputation was heavily compromised. The Electoral Supervisory Commission (ESC) was widely regarded as politically-compromised. Zec did not cover itself in glory when in 2008 it pronounced an egregiously violent and widely-discredited election as having been free and fair. It has been a long road to recovery since then. An Afrobarometer survey in early 2017 showed that Zec was one of the least trusted public institutions, with just a 50% approval rate. The 2013 elections did not help its reputation, particularly after it failed to ensure electronic copies of the voters’ roll were availed to contestants.

The 2018 election is, therefore, a key test for Zec. It has a new head, Judge Priscilla Chigumba after Justice Rita Makarau resigned abruptly last December which raised unasnwered questions as to whether she had been pushed or jumped voluntarily.

One of the areas of concern is the professional staff who make up its secretariat. There is concern among opposition parties and civil society that with at least 15% ex-security services personnel among its professional staff, the electoral body has an unhealthy military dosage. It is regrettable also that the country is going into this election without a substantive chief elections officer — the executive head of the organisation.

The current head, Utoile Silaigwana, was appointed as the acting chief elections officer in March this year. Zec has the power to appoint the chief elections officer and there is no good reason why it did not appoint a substantive executive head before a crucial election.

Zec is entitled to recruit civil servants and staff of local authorities and parastatals to assist with electoral functions during elections. Zec has the power to select, screen and train all persons who are seconded by these bodies and they will be under its direction and control for the duration of the election. These are the people — normally teachers, nurses and other staff — who perform the role of electoral officers. They have an important role in the running of the electoral machine.

There is, however, another important set of civil servants who have a key role in the electoral system. These are senior civil servants who form the National Logistics Committee.

Voters’ roll closure

The voters’ roll is one of the core instruments in the election process. It determines who is eligible to vote in the elections. Zec has a mandatory duty to keep and maintain a voters’ roll for each polling station area in both printed and electronic form. This polling station voters’ roll is the register that determines who is entitled to vote in that polling station area.

However, the voters’ roll was closed on June 1. The law makes it clear that the voters’ roll closes two days after the proclamation of elections. There will be no more registration of voters for the forthcoming elections and those who did not register will be ineligible to vote.

Nevertheless, this does not mean the voters’ roll can no longer be checked or altered. We have already seen that parties, candidates and any person are allowed to get and inspect copies of the voters’ roll at any time. If there are any irregularities or discrepancies which are discovered after the closure of the voters’ roll they must be rectified. There is no point going to an election with a voters’ roll which is defective. If the closure of the voters’ roll is deemed to prevent such corrections, it would arguably be unconstitutional and would also taint the legitimacy of the election.

Duplicates’ removal

Zec has the power to remove duplicates to ensure that no person is registered as a voter more than once on the voters’ roll. More importantly, Zec can remove these duplicates without giving notice to the affected voters. This provision is based on trust that Zec would carry out this role honestly and without prejudicing voters. The problem is that trust levels in Zec are low. The risk that innocent voters might otherwise be removed, even in error, weighs heavily on voters’ minds. It is regrettable that Zec has this broad power to remove names deemed to be duplicated without informing affected voters.

The hope has to be that since Zec has this broad power it will use it responsibly and correctly and those innocent voters will not be affected. Otherwise, there is a significant risk that some voters might discover that they are not on the voters’ roll on polling day on account of this removal process. This has to be watched carefully and the number of voters who are turned away on the grounds that they are not on the voters’ roll when they registered must be monitored.

Consolidation

It is very important for Zec to prepare, maintain and avail the consolidated national voters’ roll. In terms of section 20(4) Zec is also has a mandatory duty to keep at least one copy of a consolidated national voters’ roll at its head office. It states: “The Commission shall — . . . (c) keep at least one copy of a consolidated national voters’ roll at its head office.”

However, section 20(4a) suggests that this duty to keep a consolidated national voters’ roll is optional. It states, “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.”

The word may suggest that preparing a consolidated national voters’ roll is an option.

It is odd that the Electoral Law contains inconsistent provisions on the duty to prepare, keep and maintain a consolidated national voters’ roll. This might seem innocuous but it matters a great deal. Unlike separate polling station-based voters’ rolls, a consolidated national voters’ roll provides a facility to see the bigger picture of the electorate.

The problem of duplicates is easier and quicker to identify on a consolidated national voters’ roll than on individual polling station voters’ rolls.

It is therefore critical that Zec observes its mandatory duty to keep both polling station voters’ rolls and a consolidated national voters’ roll. Preparing and maintaining a consolidated national voters’ roll must not be optional as suggested in section 20(4a). Indeed, Zec must ensure that it provides both polling station voters’ rolls and the consolidated national voters’ roll.

Provision of voters’ rolls

Zec has an obligation to provide a free copy of an electronic voters’ roll to every nominated candidate within a reasonable time after the nomination. The law makes it clear that the electronic copy must be provided in a form that is searchable and analysable. Zec can make this tamper-proof and impose conditions to prevent commercial or other unauthorised uses, but it must be easy to search and analyse. Secondly, every nominated candidate is entitled to a printed copy of the voters’ roll upon request and payment of the prescribed fee.

Political parties and accredited election observers are also entitled to receive the voters’ roll upon request and payment of a prescribed fee. In addition, any person, even those who are not candidates, is also entitled, within a reasonable time after the election is called, to receive the voters’ roll upon request and payment of the prescribed fee. This includes the consolidated national voters’ roll either in printed or in electronic form.

The law states that the prescribed fee for the voters’ roll should not exceed the reasonable cost of providing the voters’ roll. This means Zec cannot impose prohibitive fees which make it impossible for the purchase of the voters’ rolls (we await information on fees for the new voters’ rolls).

It is also important to know that according to the law, every voters’ roll is a public document which is open to inspection by any member of the public without charge during ordinary office hours at the Zec office or the registration office where it is kept.

A person is entitled to make notes while inspecting the roll. This means inspection is not just about checking one’s name on the roll. You can ask for the whole voters’ roll and you do not have to pay anything to do the inspection as long as you are doing it on the premises and during working hours. Zec might tell you otherwise but this is the law. It is important for parties to use this facility to ensure they have copies of voters’ rolls, particularly the electronic versions which opposition parties were denied in 2013.

They must subject these voters’ rolls to rigorous scrutiny to ensure that they are credible. Zec is not going to do an independent audit, so it is entirely up to political parties and civil society organisations to carry out these audits and highlight any irregularities if any are identified. A voters’ roll will never be perfect but it must at least be substantially accurate insofar as it represents the electorate.

Polling station voting

During the July general election, voting will be based at polling stations. This means a person will only be able to vote at the polling station where they are registered as voters. The only exception is where a person is permitted to vote by post. Postal voting is only allowed in very limited circumstances. By now, every person should know the polling station at which they are registered to vote. If you do not know, you have to check with Zec.

Magaisa, a law lecturer and researcher, is former advisor to Zimbabwe’s prime minister. He regularly writes on legal and political issues on legal and political issues.
l To be continued next week

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