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Commentary: Zimbabwe Electoral Commission Bill (HB 18, 2004)
Zimbabwe Election Support Network (ZESN)
October 22, 2004

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Executive summary
This document examines the Zimbabwe Electoral Commission Bill to assess whether it will establish a strong and independent body which will be able to ensure the conduct of free and fair elections in Zimbabwe.

Confusion of roles between different electoral authorities
The electoral process has been politicised in Zimbabwe and the Electoral Supervisory Commission, the Registrar-General of Elections, and the Election Directorate have overlapping responsibilities, leading to confusion. This confusion could best be avoided by amending the Constitution to establish a single Independent Electoral Commission to conduct all elections and supervise the entire electoral process.

The method adopted by the Bill, namely the setting up of a statutory commission, is not ideal because the new Zimbabwe Electoral Commission appears to be usurping the functions of the constitutionally-established Electoral Supervisory Commission.

Composition of Commission
The composition of the Commission established by the Bill is far from ideal. All five Commissioners will be appointed by the President. In the case of the chairperson, the President will have to consult the Judicial Service Commission, and he will appoint the other four Commissioners from a list of nominees submitted by a parliamentary standing committee. The Judicial Service Commission is dominated by government appointees and the parliamentary standing committee is dominated by members of the ruling political party. It will be possible, therefore, for the President to pack the Commission with his supporters.

To ensure that the Commission will be composed of competent, neutral and independent persons, ZESN recommends that the Bill should be amended in any one of three ways:

• A five-member Commission should be appointed by Parliament from nominees put forward by a bi-partisan parliamentary committee; Parliament would have to appoint the nominees by a two-thirds majority, to ensure that the appointees are generally acceptable.
• A nine-member Commission should be appointed by Parliament from nominees put forward by the Judicial Service Commission, the Law Society, Parliament and NANGO. The Judicial Service Commission, in consultation with the Law Society, would nominate the chairman, who would have to be qualified to be a judge. Parliament would appoint four of the remaining members from nominees selected by a bi-partisan parliamentary committee, and the Law Society and NANGO would elect the remaining four.
• A 15-member Commission should be constituted with up to a third of its members being suitable foreigners, perhaps drawn from electoral commissions in the SADC region.

Independence of Commission
The Bill does not go far enough in ensuring that Commissioners and members of the Commission’s full-time staff are politically neutral. They should not be office-bearers of a political party, and probably should not be allowed to hold membership of a party.

Although the Bill states that the Commission is not subject to direction or control, it will have to report to the President and the Minister, and so by implication is answerable to them. Furthermore, the Minister will have a power of veto over the Commission’s regulations. The Bill should be amended to give the Commission control over its staff and procedures, and to allow it to make regulations without Ministerial approval. In regard to reports, the Commission should be answerable to Parliament alone.

The Bill allows Commissioners to be dismissed on the ground that they have shown themselves to be unsuitable, which is too wide and vague, although their dismissal must be recommended by a disciplinary committee appointed by the Minister from nominees put forward by the Attorney-General, the Commission and the parliamentary standing committee on rules and orders.

It is recommended that Commissioners should have the same security of tenure as judges.

Funds of Commission and remuneration of Commissioners
It is not clear whether the Commission’s funds will be a statutory appropriation or will have to be voted on annually by Parliament, and the Bill contains inconsistent provisions regarding Commissioners’ remuneration. There is, however, a useful safeguard against reducing their remuneration during their tenure of office.

ZESN recommends that the Commission’s funds should be appropriated annually, and that the Bill should state that Parliament must provide the Commission with adequate finance. Commissioners’ remuneration should be fixed by a bi-partisan parliamentary committee.

Staff of Commission
The Bill requires the Commission to appoint a Chief Elections Officer who will be the Commission’s chief executive responsible for managing the Commission’s affairs. The Commission will also be empowered to appoint other members of staff.

Registration of voters and voters’ rolls
The Bill gives the Commission the function of directing and controlling the registration of voters and compiling voters’ rolls, but there is no statement as to the public’s right of access to the rolls. The Commission must be given power ensure that rolls are accessible and available to the public and interested parties. The Commission should also be given express power to check the recent registration exercise and, if necessary, order its extension.

Voter education
The right to provide voter education , i.e. instruction on electoral law and procedure, will be severely restricted by the Bill: effectively, only the Commission itself, as well as the Commission’s appointees and political parties will be allowed to provide it. For anyone else to provide voter education, they will have to be citizens or residents of Zimbabwe, or associations consisting wholly of citizens or residents; the courses of instruction they provide will have to be approved by the Commission; they will have to provide the instruction free of charge; and they will not be allowed to accept any foreign funding to enable them to provide it.

These provisions are far too restrictive and are probably unconstitutional. The Commission should merely be given responsibility for ensuring that other persons’ programmes of voter education are reasonably fair and accurate.

Access to media
Access to public news media, particularly broadcasting, is an essential element in a fair electoral process. In Zimbabwe the public media are unduly partisan in favour of the ruling political party. The Commission should be given the responsibility for formulating and enforcing a code of conduct to ensure fair and balanced news reporting during election periods.

Conciliation and mediation
The Bill does not give the Commission responsibility for setting up procedures for the mediation and settlement of electoral disputes. The Commission should have been given this responsibility, either in this Bill or in the Electoral Bill.

Communication with the public
The Bill does not contain provisions requiring the Commission to keep the public informed about its activities, to provide people with information to which they have a right of access, and to decentralise its operations. The Bill should be amended to insert such provisions.

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