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The SADC electoral principles and guidelines, and Zimbabwe's new electoral legislation - An evaluation
Zimbabwe Election Support Network (ZESN)
January 28, 2005

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Executive Summary
The purpose of this memorandum is to examine whether the new electoral legislation enacted by the Zimbabwean Parliament, the Zimbabwe Electoral Commission Act [Chapter 2:12] and the Electoral Act [Chapter 2:13] conform to the principles and guidelines for the holding elections that were adopted by SADC heads of State and government in 2004. The memorandum examines the legislation under the following general headings:

Electoral Environment
The SADC Principles and Guidelines require member States to ensure that all their citizens enjoy freedom of movement, assembly, association and expression as well as political tolerance during electoral processes. There must also be an independent judiciary.

There is little in the Zimbabwean legislation that touches on these topics, apart from a general statement of principles in section 3 of the Electoral Act. There is no enforcement mechanism, and the Electoral Commission’s role is confined to registering voters, providing voter education and conducting elections.

This is a flaw, likely to affect the political environment for the holding of democratic multi-party elections.

The following are of particular concern:

• Freedom of Assembly and Association: These freedoms are limited by the Public Order and Security Act [Chapter 11:17], under which the regularly ban political meetings, particularly those held by the opposition political parties mainly the MDC.The freedoms will be further eroded by the Non-Governmental Organisations Bill when it becomes law.
• Freedom of Expression: The Public Order stifles this right and Security Act and the Access to Information and Protection of Privacy Act [Chapter 10:27], which makes it an offence to publish false news. The latter Act has been used to ban the Daily News newspaper and to prevent foreign journalists working in Zimbabwe, since only citizens or permanent residents can be accredited as journalists for more than 30 days.
• Political tolerance: the ruling ZANU (PF) party has consistently shown itself intolerant of opposition, and in this it is backed by war veterans and the heads of the Defence Forces and the Police Force. The new legislation is unlikely to change the party’s attitude.

Frequency of Elections
The SADC Principles and Guidelines require elections to be held at regular intervals on dates that are announced timeously.

The Zimbabwean Constitution requires elections to be held regularly: within four months after a dissolution of Parliament and within 90 days after a President’s term expires or he ceases to hold office. As to timeous announcement of elections, polling must take place between 35 and 66 days after publication of a proclamation calling an election. Thirty-five days is inadequate for the holding of a general election or a presidential election, though probably enough for a parliamentary by-election; it is certainly far less than the period of three or four months suggested by the SADC Parliamentary Forum.

The President is empowered to fix the dates of parliamentary elections without consulting the Electoral Commission. The SADC Parliamentary Forum suggests that Parliament should be involved in fixing election dates.

Electoral Bodies
The SADC Principles and Guidelines require impartial, all-inclusive, competent and accountable electoral bodies to be appointed, staffed by qualified personnel.

The President appoints the chairperson of the Electoral Commission after consultation with the Judicial Service Commission; the other members are appointed from nominees put forward by Parliament’s Committee on Standing Rules and Orders. Supporters or members of the ruling ZANU (PF) party dominate both the Judicial Service Commission and the parliamentary committee. Membership of the Electoral Commission is not therefore likely to be impartial or all-inclusive. Once appointed, however, the members enjoy substantial security of tenure and have to conduct themselves in an impartial manner — as do their staff.

There is a worrying duplication of roles between the new Electoral Commission and the constitutionally appointed Electoral Supervisory Commission; it is not clear how they will work together or which will have the greater authority. There is also concern over their staff: both Commissions are allowed to take on secondment members of the Defence Forces and Police Force, leading to fears that voters will be intimidated and elections "militarised". And the Electoral Commission’s independence is undermined by the fact that the Minister must approve all statutory instruments made by the Commission under the Electoral Act.

Voter Education
The SADC Principles and Guidelines state that there must be voter education.

In the Zimbabwe Electoral Commission Act voter education is made the exclusive preserve of the Commission and its agents; it may not be provided by anyone other than citizens or permanent residents, and only the Commission is allowed to receive foreign funding to provide it. These provisions are probably unconstitutional.

Election Observing/Monitoring
Under the SADC Principles and Guidelines, national and international observers and monitors must be accredited and given free access to everyone concerned in the electoral process. SADC must be invited to send a mission at least 90 days before polling. Representatives of parties and candidates must be allowed in polling stations and counting stations.

The Zimbabwean legislation is most unsatisfactory in this respect. A committee dominated by Ministerial nominees accredits observers, and only persons invited by a Minister or the Electoral Supervisory Commission may be accredited. Monitors will all be public servants.

There is no longer enough time for SADC to be given an invitation to send observers 90 days before polling, if the general election is to be held in March.

Rights of Candidates and Political Parties
Under the SADC Principles and Guidelines, all political parties must have equal access to State media and allowed freedom of campaigning. Funding of political parties must be transparent and based on agreed legal thresholds.

The Zimbabwean legislation does nothing to regulate the general political environment or to give parties access to the State media. Apart from a bland statement of principle, the Electoral Act is silent on the question of political campaigning. Public funding of political parties is governed by the Political Parties (Finance) Act [Chapter 2:11], which is largely transparent.

Right to Vote and to Stand for Election
The SADC Principles and Guidelines require all citizens to be given the right to participate in the political process, and an equal opportunity to vote. Participation of women, disabled persons and youth must be encouraged.

The Electoral Act requires people to be resident in a constituency to be able to vote there, since postal voting is not permitted for anyone except State employees. This means that members of the Zimbabwean "diaspora" will not be able to vote in the forthcoming election. All citizens will not therefore be able to participate in the political process.

Women are not specifically encouraged to participate in elections, though ZANU (PF) is trying to ensure a minimum number of female candidates. Disabled people may be assisted to vote if they cannot cast their ballots unaided. Youths are not encouraged: the minimum age for voters is 18, for parliamentary candidates 21 and for presidential candidates 40.

Registration of Voters and Voters’ Rolls
Under the SADC Principles and Guidelines, there must be no discrimination in voter registration and the rolls must be up-dated and accessible.

Under the Electoral Act there is no discrimination in voter registration, except between residents and non-residents, and there is elaborate provision for the up dating of voters’ rolls though the rolls have in practice been allowed to get out of date. Although the Act gives people the right to obtain a copy of a voters’ roll, the copy is in printed form and therefore expensive.

Voting Procedures
The SADC Principles and Guidelines require polling stations to be sited in neutral places. Measures must be taken to prevent electoral fraud, and adequate resources must be provided.

There is nothing in the Act to regulate the citing of polling stations, but the Act does lay down elaborate procedures for polling which should discourage illegal practices. In particular, the new provisions for marking voters with indelible ink visible to the naked eye are to be welcomed. There is no provision, however, for transparent ballot-boxed to be used, as recommended by the SADC Parliamentary Forum. However the Minister of Justice, Legal and Parliamentary Affairs made an undertaking that the government would use translucent ballot boxes in the forth-coming elections. (Herald, 15 December 2005) It is desirable if the provisions were contained in the Act.

Counting of Votes
Votes will be counted at polling stations in the presence of monitors, observers and candidates’ representatives, as recommended in the SADC Principles and Guidelines.

Adjudication of Electoral Disputes
The Electoral Act sets up a special Electoral Court to adjudicate on challenges to election results, as required by the SADC Principles and Guidelines. The procedures laid down in the Act for the hearing of election petitions is excessively formal, however, and will probably lead to undue delays. The Act makes provision for the arbitration of electoral disputes, again as mandated by the SADC Principles and Guidelines, by requiring the Electoral Commission to set up multi-party liaison committees in every constituency with powers to mediate disputes and grievances.

Acceptance of Results
The SADC Principles and Guidelines require political parties to accept the results of elections that have been declared free and fair. The Electoral Act provides for this in a code of conduct to be observed by candidates and parties. That is about as far as the Act can go.

Generally
Although the new legislation goes some way towards meeting the SADC Principles and Guidelines, it suffers a most important drawback: if the next general election is to be held in March, the legislation has been promulgated too late for it to have any real effect on the general political environment and on the election processes. The Electoral Commission will not have the time to re-examine the voters’ rolls and to put in place the procedures and staff necessary to ensure that the election is conducted freely, fairly and democratically.

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