Medical doctors have a council and a board that regulate the practice of their profession. Lawyers, dentists and judges also provide for the regulation of the manner in which they practise their chosen professions. The idea being to maintain certain agreed standards for registration, promotion, discipline, and prescribe procedures for deregistration.
Writing a letter to the electoral commission to advise it that you have successfully downloaded a manifesto online and adopted it as your own together with your wife, four children and your pastor is all it currently takes to be “recognised” as a political party in Zimbabwe.
The recognition takes the form of a letter in reply to your notification, to the effect that you are now in the database of political parties and will henceforth be invited to stakeholder conferences together with other political parties. And, yes, by the way we confirm that your letterhead and logo do not clash with any other political parties, but kindly advise who your party president is. You may or may not be shocked to find out that there is no requirement or prescribed manner of compelling that fledgling party to supply the electoral commission with any information at this stage.
Is this in line with international best practice and, if not, should we change this wishy washy lackadaisical way of setting up political parties? Change it and replace it with what? This article will look at the issues on all sides. Some people argue that the right to freedom of assembly and association, a fundamental human right and freedom protected by Section 58 of our new constitution is not subject to derogation. That the constitution clearly states that every person has the right to freedom of assembly and association, and the right not to assemble or associate. It goes further to unequivocally state that “No person may be compelled to belong to an association or to attend a meeting or gathering”.
The highest law in this land protects the right to freely associate with whoever joins your band of brothers and sisters who hold similar political views.
The same new constitution tells us that when interpreting our fundamental rights and freedoms, we must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, we must take into account international law and all treaties and conventions to which Zimbabwe is a part, but we may consider foreign law.
In Section 86, we are told that these fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of others. And, more to the point that these rights may be limited in terms of a law of general application. The law of general application may only limit the fundamental right or freedom in a manner that is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. We are guided with regards to the issues that this law must take into consideration.
The purpose of the limitation … is whether it is necessary in the interests of defence, public safety, public order, public morality, public health, amongst others. Finally, Section 86(3) of the new constitution lists those rights which must not be subject to limitation.
The right to freedom of assembly and freedom of association is not one of them. Why should political parties in Zimbabwe be formally registered? Without registration, there is no regulation and therefore no accountability.
Legislative authority of Zimbabwe is derived from the people and is vested and exercised in accordance with the constitution by the legislature (parliament and the President).
We entrust those in whom our legislative authority rests to operate with impunity, without regulation, as if political parties are run by leagues of distinguished gentlemen? Politics is a dirty game. It is my view that we should make it cleaner. For the sake of our future generations.
The Electoral Act (Chapter 2:13) announces itself to be an Act to provide for; (… the procedures for the nomination and election of candidates and filling of vacancies in Parliament … to provide for offences and penalties and for the prevention of electoral malpractices in connection with elections. And to provide for matters connected with or incidental …” to these issues, amongst others.
It is the correct vehicle to use to make provisions for the regulation of political parties. The functions of the Zimbabwe Electoral Commission do not include the registration or regulation of political parties. Section 157(1) of the constitution only stipulates that an Act of Parliament (read Electoral Act) must provide for a Code of Conduct for Political Parties, candidates and other persons participating in elections and referendums.
The code regulates everyone’s conduct, not just political parties, it should regulate all participants. We will look at whether it currently does so later.
“Political party” means any political organisation, according to the interpretation section of the Electoral Act. Wikipedia was more helpful by defining a political party as an organised group of people who have the same ideology, or who otherwise have the same political positions, for elections, in an attempt to get them elected and thereby implement the party’s agenda.
Some countries have several significant political parties, some have one-party systems, and some have many small parties participating, but are in reality two-party system nations. Zimbabwe has a plethora of political parties which mostly come out of the woodwork during an election period and go back into hibernation until the next election. It does have a significant number of active political parties.
The trend in recent by-elections is 3-6 participating political parties, yet, at the height of the last election the number of parties in existence shot to the stratosphere. More than a hundred!
Our democratic elections in Zimbabwe are guided by laid down principles, such as the fact that every citizen is given the right to join or participate in the activities of and to recruit members of a political party of his or her choice.
Section 3 of the Electoral Act goes on to spell out the rights of political parties and candidates; the right to: operate freely within the law; put up or sponsor one or more candidates in every election; campaign freely within the law; have fair and equal access to electronic and print media, both private and public; to have reasonable access to all material and information necessary for it to participate effectively in every election. That’s it. Nothing about minimum requirements for formation or registration.
The next thing we are told is that a candidate for election to the National Assembly shall be nominated by means of a prescribed form signed by five people registered as voters and accepted via the signature of the candidate or designated agent. The nomination paper must be submitted together with two copies of the Electoral Code of Conduct for Political Parties and candidates. Only then, at nomination stage, does our electoral law seek to hold political parties and candidates to some sort of account, some sort so standard. For those who do not know, the nomination prescribed forms appear in schedules to the Electoral Act, as attachments. The Electoral (Nomination of Candidates) Regulations Statutory Instrument 153/2014 give guidance on issues such as nomination fees.
The writer advocates for the significant increase in nomination fees particularly for presidential candidates. Are we seriously saying we can allow anyone, just anyone, to set up a political party and only attempt to regulate serious players at nomination court stage with a weak Code of Conduct of Political Parties which is based on consensus? The current code is weak. It has no teeth. It has no enforcement mechanisms which provide real-time relief.
How many criminal prosecutions for election malpractice for violation of this code have we had, since Independence? I challenge you, the reader, to find and name one.
There are many models for the registration of political parties. I have looked at a lot of codes. The one I will briefly outline was attractive to me because of the manner in which it has levelled the playing field and provided, quick, speedy, timeous, rea-time relief to all participants, not just political parties, or candidates, but complainant affected citizens. Criminalising electoral malpractices has not worked well in Zimbabwe because of the cumbersome nature of legal proceedings. It is my most sincere belief that the purpose of the code of conduct should be to promote conditions that are conducive to free and fair elections, including tolerance of democratic political activity and free political campaigning and open public debate (Schedule 2, s99, Electoral Act of 1998) South Africa.
That is known as the Electoral Code of Conduct, because it binds all participants. Our Code of Political Parties and Candidates falls short in not having mechanisms by which to bind all participants, much less political parties and or candidates.
“Every registered party and every candidate bound by this code must: promote the purpose of the code when conducting an election; publicise the code widely in any election campaign; promote and support efforts in terms of this act to educate voters.
The beauty is the prescribed action. It tells everyone participating in elections to promote and publicise the code and to support voter education. It sets a trap for those who mislead or misinform voters deliberately and makes it a violation of the Code to do that.”
Then it whips out the stick and stipulates that every registered party and candidate must publicly state that everyone has the right to freely express their political beliefs and opinions, publicly condemn any action that may undermine free and fair elections. It stipulates that every registered party and candidate must recognise the authority of the commission in the conduct of an election and assure voters of the commission’s impartiality.
What happens to those who fail to make these assurances to voters? Those parties who engage in prohibited conduct can be de-registered or fined by removal of stipulated numbers of voters from the Presidential candidates … by the commission. Candidates may be fined or removed from the ballot.
Political parties can have hefty, really hefty, fines imposed on them for each and every incident until they stop. Hate speech — moderate fine, hate speech — hefty fine, hate speech — remove candidate from ballot, hate speech — subtract 10 000 votes from the party list of that candidate, we get the drift.
This is an example of how one country in the Sadc region is successfully regulating political parties and candidates and all participants in the electoral process through a code of conduct. We must improve our own code and have a homegrown solution.
I say it is time for politicians and their parties and all participants in the electoral process to be regulated. If all other practitioners of various professions can regulate themselves in a meaningful manner, why not politicians?
There must be legal provisions put in place and a body clothed with the power to sit and determine applications for registration by political parties. Such a body can be quasi-judicial, a tribunal of some sort, it can be another body which operates as a registry of political parties in the same way we have a Registrar of Companies, Registrar of Deeds, Registrar of Births and Deaths.
Parliament would have oversight, and decisions would be subject to review by a court to be chosen and agreed. Those who are afraid of registration surmise that, once registered, a party can be deregistred and they do not trust any player to handle this in an impartial manner.
Those in favour of registrartion are in favour of accountability, an end to polarisation, hate speech and electoral malpractices that political parties get away with, with impunity.
We will call this proposed paragon of virtue our newly minted Political Parties Registry (PPR). A gentle reminder at this stage that the Code of Conduct currently only binds registered political parties and their candidates. Registration is key because the PPR will not be able enforce the code unless the political party is subject to regulation. Accountability and enforcement depend on registration. The application for registration may be submitted to a chief registrar. Thereafter prescribed time periods for objections to the proposed registration kick in. All notices to be gazetted.
The Electoral Act, or Political Parties Registration Act, can prescribe reasons why an initial application for registration can be rejected, it can prescribe the minimum information to be contained in the constitution of a party such as: executive structure of the party; election procedure for the executive; decision making process and functions of office bearers; minimum requirements for membership to the party; internal disciplinary processes of the party; requirements for audited financial statements.
Each political party will be required to file a deed of foundation which must be signed by at least 500 registered voters, whose full names and identity numbers must be reflected against their signatures. There will be a prescribed registration fee, and the details of the party will be gazetted; name, symbol, date of registration, party registration number. A register of parties duly registered will be kept by the chief registrar. The registration may or may not be subject to renewal as a way of raising funds by the Political Parties Registry.
Party registration certificates will be issued and a database of registered parties maintained. Such a duly registered party shall be entitled to be represented at the Multi-Party Liaison Committees, and have free access to voters’ rolls. Its name symbol or distinguishing mark will be protected by the PPR.
A duly registered party will comply with the Electoral Act and shun electoral malpractices for fear of de-registration. Naturally, any appeal against decisions of the PPR will be heard by a court of law.
Most people are wondering what to do about polarisation in Zimbabwe. Here is a humble submission that registration of political parties, and giving teeth to an electoral code of conduct that binds all participants in the electoral process, is a start, a step in the right direction. Let us get talking about this, and lobby parliament to bring about any requisite changes to existing laws.
This article is part of a special series focussing on electoral processes and reforms.