Our system of elections: Part III

Continued from last week

On Nomination Day, each party is required to submit a list of candidates to fill the party-list seats in the Senate, for the women’s quota and for the provincial assembly.

Alex Magaisa,lawyer

In order to promote women’s representation in parliament and advance gender equality, party-lists must be structured in such a way that female and male candidates are listed in a zebra pattern but with the female candidate at the top of the list. This was to give preference to female candidates and also to prevent a situation where male candidates would dominate the list at the expense of women, as has often been the case historically.

The party-list seats are filled in accordance with a formula for proportional representation prescribed in the Eighth Schedule of the Electoral Act. It is calculated on the basis of the total number of valid votes cast for all the constituency candidates in the electoral province concerned except votes cast for candidates who are not political parties or, if they are party candidates, have not submitted names for the party-list seats. In simple terms, the party that gets the most votes for national assembly candidates in a province will have the largest number of party-list seats in the Senate and women’s quota (and if implemented, in the provincial assembly). Senate candidates and women’s quota candidates have an incentive to campaign for their National Assembly counterparts because their chances of filling their party-list seats are enhanced if they win more votes collectively.

In order to qualify as a party-list candidate, one must be listed on the voters’ roll in the constituency and must have accepted a nomination to be on the party-list. A person cannot be on more than one party-list and cannot be a candidate in another election. For example, if one is contesting for a National Assembly constituency seat, he cannot also be on the Senate party-list. Likewise, a woman who is running for a National Assembly constituency seat cannot also be on the party-list for the women’s quota seat.

If a candidate on the party-list dies after nomination but before the election, the Zimbabwe Electoral Commission (Zec) will select the next eligible candidate on the party-list and if there is no such eligible candidate, the party concerned will be invited to submit a new candidate.

National Assembly

June 14 was nomination day. This is when candidates for elections submitted their nomination papers after which they formally became candidates in the election.

In order to be confirmed as candidates, they had to meet the minimum nomination requirements. For party-list candidates, the relevant party submitted a party list on behalf of the candidates.

For presidential candidates, National Assembly candidates, and local authority candidates, there are minimum numbers of nominators in the areas they are contesting.
For national assembly candidates, they needed at least five nominators from their constituency. For the president, they need 10 nominations from each province. These nominators must be listed on the voters’ roll. The nomination court sits from 10 am to 4pm on nomination day. However, if at that time a candidate or his chief election agent is present in the court and ready to submit a nomination paper in respect of the candidate, the nomination officer is required to give him an opportunity to do so. In other words, you have to be in the nomination court by 4 pm and if you are inside and ready to submit, you cannot be turned down for lack of time.

Where a nomination officer has identified defects on the nomination form, the candidate or his agent must be given an opportunity to rectify the defects but this must be completed on the same day. There can be no adjournment to another day.

The nomination officer must also examine the papers carefully where the candidate purports to be representing a political party so that he is satisfied that this is true. If the nomination officer is doubtful, he may require the candidate or his chief election agent to produce proof as to such fact.

If the nomination officer rejects the nomination, he must do so publicly in open court. There are a number of reasons why a nomination officer might reject a nomination:

If he considers that any symbol or abbreviation used by the candidate is indecent or obscene; or is too complex or elaborate to be reproduced on a ballot paper; or closely resembles another candidate’s symbol in the constituency concerned; or closely resembles the recognised symbol or abbreviation of another political party and this would cause confusion.

If any symbol is a prohibited symbol;

If the nomination officer does not believe the candidate’s claims that he represents a particular party.

if the nomination paper is not accompanied by two copies of the electoral code of conduct;

If in his or her opinion the nomination paper is for any other reason not in order;

Finally, the law does not allow rejection on the basis of minor errors such as slight variations between the name on the nomination paper and the voters’ roll. Indeed, the law recognises that the papers may be imperfect and the nomination is to be accepted where there is substantial compliance.

Candidate withdrawal

If a candidate withdraws before the election and there is only one candidate left, that candidate will be duly declared elected. If there are two or more candidates after the withdrawal, the electoral authorities will ensure that the name of the withdrawn candidate is either omitted or deleted from the ballot paper. In any event, the authorities must ensure that voters are informed of the withdrawal.

Death of a candidate

Where a candidate dies after nomination but before polling day, the Chief Elections Officer must declare that all proceedings relating to that election in the constituency are void. There will be a new election process for that constituency but there will be no need for the remaining candidates to submit new nomination papers if they still wish to contest.

Candidate substitution

The law allows parties to have substitute candidates if a candidate withdraws or dies within seven days after nomination day. The party must inform Zec no later than 48 hours after it becomes aware of its candidate’s withdrawal or death.

Ballot papers

Zec has the responsibility of printing ballot papers. It must ensure that the number of ballot papers does not exceed the number of registered voters by more than 10%.

This is in accordance with international best practice and a point of progress from the situation in the 2013 elections when Zec printed an extra two million ballot papers, which was excessive and raised suspicions.

International observers such as those from the African Union raised this issue as an irregularity that needed to be rectified.

Zec is also required to be transparent on the issue of ballot papers. The law requires Zec to provide the following information to all political parties and candidates contesting an election and to all observers:

where and by whom the ballot papers have been or are being printed

the total number of ballot papers that have been printed

the number of ballot papers that have been distributed to each polling station

Opposition parties have been demanding an open and transparent procurement process and a role in that process. However, Zec has rejected the demands, preferring a direct procurement as opposed to an open competitive tender process.

This dispute has dented the process and raised suspicions that could have been easily dispelled had Zec used an open tender just as it did with the Biometric Voter Registration process. Zec has offered opposition parties to observe the printing process, although specific details regarding modalities are yet to be availed. It is critically important that the ballot paper printing and distribution is carefully monitored.

Counting the votes

The counting of votes is one of the most critical stages of the electoral process. The old cliché that it does not matter who votes, but who counts the votes couldn’t be more appropriate. Votes must be counted after the close of polling and following the opening of the seal on the ballot box.

This critical process must be performed openly and transparently in the presence of witnesses. It is very clear that there should be no undue delay between the closing of ballot boxes and their opening for counting. The law states that it must be done as soon as possible. Those who may be present at the counting are:
the presiding officer and such polling officers as he may consider necessary

election monitors and observers

the candidates, and every chief election agent and election agent of each candidate and of each political party is present within the polling station or its vicinity at the time of the commencement of the counting any roving political party election agent who, at the time of the commencement of the counting, is present within the polling station or in the immediate vicinity of the polling station.

After the counting is done and the results are recorded, the presiding officer must give an opportunity to agents to affix their signatures. The candidate or his agent must be given a copy of the completed polling-station return.

Outside polling station

Critically, the law requires the presiding officer to affix a copy of the polling-station return outside the polling station so that it is visible to the public. He is required to ensure that it remains there so that all members of the public who want to inspect and record its contents may do so freely.

This is a critical stage because it ensures that parties and members of the public have at their disposal a means of collecting data independent of Zec. Parties can do the parallel process of recording votes and if done on a countrywide basis it can be useful to compare with Zec’s official statistics.

It worked fairly well in March 2008, but was not as successful in 2013. In these days of smartphones and cameras, the public has an opportunity to participate actively in the election process by keeping a record of results at their polling stations as they are released.

The law provides for a process of transmitting results from the pooling station to the national command centre in Harare.

Zec has the ultimate power to declare the election result. However, it helps that parties can implement mechanisms to monitor results as they are published around the country. With an organised and efficient system, it can be a useful way to monitor the electoral process. This requires resources and this is where others, including Zimbabweans in the Diaspora, can chip in. They might not be allowed to vote in their foreign locations in this election, but they can still play a critical role of availing resources to support the monitoring of this election — from resourcing election agents and ensuring data is captured at source.

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

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