Our system of elections: Part II

Continued from last week

Location of polling stations

The law requires every polling station to be located at a place that is readily accessible to the public, including persons living with physical disabilities. There are certain places where polling stations cannot be located. These are:

premises owned or occupied by a political party or candidate;
a police station, barracks, cantonment area or another place where police officers or members of the Defence Forces are permanently stationed;

premises licensed under the Liquor Act [Chapter 14:12] – so beerhalls and bottle stores cannot host polling stations;

at or in any place which, for any reason, may give rise to reasonable apprehension on the part of voters as to the secrecy of their votes or the integrity of the electoral process.

Indeed, it would be wrong for Zimbabwe Electoral Commission (Zec) to locate a polling station anywhere near these listed locations. A polling station outside the fence of a military barracks or police station would be illegal.

Public notice on polling stations

At least three weeks before polling day and also on polling day, Zec is required to publicly inform voters of the location of polling stations and the hours during which the polling stations will be open. This notice must be published in a newspaper circulating in the constituency concerned and in such other manner as Zec thinks fit.

Additional polling stations

Nevertheless, the law now allows Zec to establish new polling stations to serve the same polling area where the electoral body determines that the number of people exceeds the limit which it thinks can be served by one polling station. In other words, where there are too many people per polling station, Zec may establish new polling stations.

Zec has described these as “substations” or “satellite stations” which are supposed to reduce the burden on the main polling station. This is a sanitised explanation and sounds alright if they follow it through to the letter.

However, the law is more liberal than Zec is telling the electorate. It actually states that “the Commission may establish two or more independent polling stations to serve the same polling station area”. If Zec sticks to its word, there might be little trouble. However, since the law allows it to establish independent polling stations, parties must remain vigilant to ensure that Zec does not actually do this, thereby establishing polling stations far away from the main polling station which would result in challenges in monitoring. This is because the problem of ballot stuffing usually takes places at these new and little-known polling stations.

In order to prevent problems, Zec must stick to its word so that any new polling stations are within the vicinity of the main polling stations. Second, they must be established well in advance and in consultation with all parties. Third, they must be known to every contestant so that there is proper monitoring. Finally and perhaps more importantly, since Zec will split the voters’ rolls between the multiple polling stations, it is important that voters are advised in advance so that they do not attend the wrong polling stations. The provision requiring publication of this information at least three weeks before polling day becomes critical.

Polling day

On election day, polling stations are opened at 7 am and closed at 7 pm — giving a 12-hour period of voting. Where it is necessary to make modifications, the electoral authority must make it clear but still ensure the 12-hour period is honoured. All voters who will be in the queue at the closing time must be permitted to cast their votes.

It is absolutely important for party election agents and observers to exercise vigilance at the closing time of the poll because that is where irregularities and cheating are likely to occur. It will be dark, there will be fatigue after a long day of hard work and lapse of judgment can be easily exploited. Parties must make sure their election agents are well-provided for and well-fed and refreshed at this critical point.

The procedures before, during and after polling are specified by law and designed to ensure transparency. For example, 30 minutes before polling begins, the presiding officer must satisfy himself and all parties concerned that the ballot box to be used at the polling station is empty. Afterwards, the ballot box must be sealed and only opened for counting in accordance with the law.

Furthermore, the presiding officer is required, in the presence of all persons entitled to be within the polling station, to count and record the total number of ballot papers received at the polling station. Election agents must independently take note of this.

Polling station

Apart from the voters recording their votes, the law allows the following to be in the polling station: electoral officers performing their official duties; the candidates; election agents; police officers on duty; accredited observers. Note that police officers have no direct role in the polling process apart from keeping law and order. They cannot, like they used to do before, assist voters. To her credit, the Zec chairperson Justice Priscilla Chigumba, has been clear regarding the role of police officers. This should be respected. Ideally, they should not even be permitted within the polling station and should only be called in when it is necessary in the opinion of the electoral authorities at the polling station.

Election agents

A party is allowed one election agent in the polling station. A candidate is also allowed one election agent inside. Two more agents are permitted outside, one of whom will be an alternate should he be required to fill in for the candidate’s agent inside.

Election agents are critical to the election process. They are the guards that help to ensure that there is no cheating. They must be well looked after. They must be well-trained, well-fed and well-provided for. They are the most important people because they are the eyes and ears of the parties. But they are also vulnerable to rent-seeking behaviour of opponents. They can be bought off, especially when they do not have a strong moral and ethical constitution and if they are not well provided for. They are also targets of intimidation, especially in the remote areas and ruling party strongholds. Zanu PF has resources and generally looks after its agents well. The opposition parties have to improve in this regard. Without effective agents, the opponents will have a field day, especially in remote areas.

Assisted voting

The law permits certain voters who are either illiterate or physically handicapped and require assistance to be given such help by persons of their choice or by the presiding officer. Where the presiding officer assists a voter, there must be two other electoral officers or employees of Zec and a police officer on duty. No other person in the polling station is allowed to interfere with this process

Assisted voting is a big red flag in the electoral process as there were allegations of abuse in the 2013 elections, particularly in the rural areas. The law does have some safeguards which can be used to prevent abuse. Candidates and election agents are not permitted to perform this role. Furthermore, a person is only permitted to assist one voter. The law requires a register of assisted voters to be kept. Those who have been assisted and those who have assisted are recorded. This will be helpful when analysing election data in case there is suspicion of abuse. High levels of assisted voters in a country boasting a high literacy rate as Zimbabwe does are bound to raise suspicion.
More importantly, voter education must be used to give people confidence to vote on their own. There are suspicions that some have been forced to feign illiteracy or injury in order to facilitate assistance, which compromises the secrecy of the vote. Voters need confidence that they do not have to fear and must be free to exercise their right to vote.

Election observers

Election observers are accredited by a committee of Zec called the Observers Accreditation Committee (OAC). Applications are made to the chief elections officer who forwards the applications to the OAC for consideration.

The OAC is headed by the chairperson of Zec. The Deputy chairperson of Zec and three other Zec commissioners complete the Zec representatives of the OAC. The rest of the members are political appointees. They are a single nominee from the following: the Office of the President and Cabinet; the Minister of Justice; the Minister of Foreign Affairs, the Minister of Home Affairs and the Minister responsible for women’s affairs.

The job of the OAC is to recommend the accreditation of both local and foreign observers who have either applied or been invited to observe elections. The problem with this OAC is the heavy presence of political appointees in the form of ministerial nominees. Since these ministers represent the ruling party, it gives an unfair advantage to one party over others as they have a disproportionate influence in choosing election observers.

The Minister of Foreign Affairs is also entitled to object to the accreditation of foreign observers in which case the OAC is required to pay due regard to the objection when deciding whether or not to recommend the observers’ accreditation.

Nevertheless, the Mnangagwa administration has undertaken to be open to the observation process and in particular to international observers. This spirit should also extend to local observers.

Observers are critical to the legitimacy of the electoral process. They are the first step in the process of certifying the proper conduct of the election. Their observations inform the response of their governments and organisations as to whether the elections are free, fair and credible.

Their role is to observe the election process in its entirety, particularly the conduct of polling on polling day. They are entitled to enter and remain at polling stations to observe the conduct of polling. They can raise any concerns regarding polling, collating or counting of votes. They are also entitled to be physically present at the counting or collating of votes and the verification of polling-station returns by presiding officers.

At the end of the process, observers provide a comprehensive review of the election. They consider a number of issues including Zec’s impartiality, respect for political and related rights, political parties’ agents’ freedom to observe all aspects of the election, role of state media and access to use of state resources, the conduct of polling and counting of votes and any other issues that might affect the free and fair conduct of the election.

A recent amendment also brought in considerations of gender equality in the elections. Observers must observe and review factors that impact gender equality in the conduct of elections. The Electoral Act has a specific provision which makes the Zimbabwe Human Rights Commission (ZHRC) as an election observer. Section 40K provides that the ZHRC can, through any of its commissioners or employees, observe any election to ensure respect for the human rights and freedoms under the constitution. The ZHRC is one of the core institutions designed as a guardian of human rights and freedoms and its role in the elections is critical.

Party-list candidates: Senate, women’s quota and provincial assembly

Party-list seats are filled by candidates who are elected on the basis of proportional representation in the Senate, the women’s quota in the National Assembly and the provincial assembly. Zimbabwe is divided into 10 electoral provinces. Each province has six party-list seats for the Senate; six party-list seats for the women’s quota and 10 party-list seats for the provincial assembly. Nevertheless, in the outgoing tenure, the government failed to implement the devolution provisions and there were no provincial councils. It is unclear whether the provincial councils will be operationalised this year. Failing to do so undermines the constitution.

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

To be continued next week

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