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Election Bulletin #2
Crisis in Zimbabwe Coalition
March 08, 2002

Implications of the General Laws Electoral Amendment Act

by Brian Kagoro

Towards the end of the year 2001 and in a desperate bid to neutralize the rule of law arguments the ruling party decided to fast track three pieces of legislation through parliament, namely the General Laws, Electoral Amendment Act, the Public Order and Security Act and the Access to Information and Protection of Privacy Act. The Supreme Court has since ruled the General Laws Amendment Act null and void.

The order in case number SC 46 of 2002 simply reads that “the General Laws Amendment Act(No.2 of 2002)was not lawfully enacted by Parliament and is therefore invalid.”

The annulled Act had sought to achieve the following:

• To make members of the Public Service the only persons qualified to be appointed as election monitors. Effectively this meant that all the individuals who had been recruited and trained by civil society groups for the purpose could not be appointed as monitors. Instead they could now become observers along with foreign nationals
• To criminalize the provision of voter education by civil society groups outside registration and therefore sanction of the Electoral Supervisory Commission (ESC);
• To prohibit civic groups from receiving foreign funding for the purposes of engaging in voter education campaigns. Only the ESC could receive foreign funding for voter education purposes

In effect the General Laws Election Amendment Act had taken away any discretion that the ESC may have previously had to appoint monitors other than civil servants. In substance this amounts to  giving directives to the ESC contrary to the Constitutional provisions that set up the Commission (Section 16(6)). Observers under the amendment were invited at the Minister’s discretion and had to represent local organizations

The Amendment also introduced a distinction between observers and monitors (See Electoral (Amendment) Regulations, 2002(No.10) SI 8 A of 2002 ). According to SI 8A of 2002 there are the following similarities between observers and monitors:

• Both may be present in a polling station
• Both are entitled to witness the verification of statements and counting of votes
• Both can witness the administration of the indelible ink, confirmation of presence of voters’ names on the roll as well as confirmation of cancellation of names of those who would have voted.

The scope of the powers regarding their observations are fundamentally different. For instance, a monitor is empowered to:

• Detect any irregularities in the conduct of the poll and request that remedial action be taken by the appropriate authority
• Inspect any vehicle transporting ballot boxes , to follow the vehicle and to sleep overnight where ballot boxes are stored
• Write a report to the commission regarding any irregularities observed and the remedial action taken therewith

Observers do not have corresponding powers. It is mandatory that there be a monitor at every polling station but there need not be any observer at any polling station.

The invalidation of this Act meant that civic groups can now engage in voter education and they could receive foreign funding for this particular purpose .It also meant that persons other than civil servants could now become monitors. But there was a sting in the tail of this judgment, namely it came after the closure of the accreditation process and just 9 days before the election. In other words, the judgment was for all intents and purposes purely academic. Further, it is pointless to guarantee the right to do voter education when the exercise is made impossible by both time constraints and the prevalence of violence in the communities that require the education the most.

The order in case number SC 30 of 2002 overturned the High Court judgment by Justice Rita Makarau. The result is that we will all have to vote in our respective constituencies. This - under normal circumstances - seems convenient for the purposes of monitoring rigging in any given constituency. It permits for convenience, as polling stations are easily accessible. However, there is a problem in our current circumstances. Many people were displaced from their constituencies by the internationally acknowledged violence. It is foolhardy to expect them to return to their respective homes merely for the purposes of voting. To do so would severely compromise their security.

The amendment also dealt with issues of postal voting by Zimbabweans in the diaspora and those within the country but working outside their constituencies. Under the Electoral Act , Zimbabweans outside the country for the purposes of pursuing studies are entitled to vote using the post in parliamentary and presidential elections. However, since 1990, the government has consistently published regulations in terms of section 158 of the Act that effectively always limit the postal vote to members of the disciplined forces currently serving outside the country as well as Zimbabweans working for international organizations outside the country. In the June 2000 election, members of the army, special constabulary and civil servants on election duties outside their constituencies were entitled to vote by post. This particular process occurred with very little scrutiny or knowledge of the ESC, civic groups, opposition political parties and international observers.

The annulled Act also dealt with the issue of dual citizenship, permanent residence and related matters. This affected those persons who had renounced their Zimbabwean citizenship in terms of the amendment to the Citizenship Act passed in 2001. Those persons who have renounced their citizenship and permanent residence cannot vote, except those who were already residents in 1985.

Following the Supreme Court annulment of the General Laws Amendment Act, the President and Zanu PF candidate exercised his powers in terms of the sections 157 and 158 of the Electoral Act to re-enact the entire Act almost verbatim. This demonstrates the tyranny that lawfully conferred powers can author in the struggle for democracy. Such that it is fair to conclude that – within the prevailing circumstances -  it is not possible to conceive of the rule of law outside the reign of terror.

On the other hand, the Electoral (Amendment) Regulations, 2002(No.13) SI 41B of 2002, epitomize a sad violation of the doctrine of separation of powers.

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