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This article participates on the following special index pages:
2008 harmonised elections - Index of articles
to the election in Zimbabwe
Zimbabwe Election Support Network (ZESN)
March 22, 2008
The constitutional and legislative framework for elections
For an election to be free and fair the entire process
must be free and fair and the body running the election must perform
its duties efficiently and in a scrupulously impartial manner. The
effectiveness of any electoral reforms depends on how the electoral
laws are applied and enforced in practice. Legislation alone cannot
prevent malpractices. The best remedies against them are an impartial,
efficient and active Electoral Commission; rigorous observation
and monitoring of all stages of the electoral process; and impartial
and professional enforcement of the laws by law enforcement agencies.
of reforms will be patchy. For electoral reforms to be effective,
a climate must be created before, during and after elections in
which voters will believe that they can vote freely to a change
government through the ballot box, and that the elections will be
conducted fairly. It will take time to restore voter confidence
in the electoral process. It is therefore essential that there should
be a sufficient period between the coming into operation of reforms
and the elections. Only when voters see the new laws being enforced
will their confidence be restored. The political parties contesting
the elections will also need to test the efficacy of the new laws
and satisfy themselves that they are being properly implemented.
As ZESN continues to monitor the pre-election period ahead
of the harmonized elections in March 2008, this update id intended
to give an overview of the legislative framework under which the
election will be held. This update is based on an analysis of the
of Zimbawe, the Electoral
Act [Chapter 2:11]; the Zimbabwe
Electoral Commission Act [Chapter 2:12] as amended by the Electoral
Laws Amendment Act of 2008 and relevant regulations ZESN's various
recommendations for reform are also included.
Constitution of Zimbabwe, the Electoral Act of 2004 and Regulations
and the Zimbabwe Electoral Commission Act of 2004 provide the framework
for the conduct of elections in Zimbabwe. The Constitution provides
generally for elections, the delimitation of constituencies and
the Zimbabwe Electoral Commission. Pursuant to the Constitution
of Zimbabwe Amendment Act (No. 18) of 2007, parliamentary, presidential
and local authority elections are to be held every five years commencing
with the harmonized polls scheduled for March 29 2008.
In terms of
the Constitution Parliament consists a lower house made up of 210
directly elected House of Assembly members and an upper house of
84 Senators. 60 members of the Senate are directly elected. The
remaining members are appointed and consist of 18 chiefs elected
by the Chiefs Electoral College; 10 provincial governors appointed
by the President as well as 6 other members appointed by the President.
Act among other things provides for a Registrar-General of Voters
and constituency registrars; the registration of voters; the preparation,
compilation and maintenance of voters rolls; the qualifications
of voters; the nomination and election of candidates to Parliament,
the office of President and local authorities. It also establishes
the Electoral Court and provide for its functions, which include
the hearing and determination of election petitions. The Zimbabwe
Electoral Commission Act establishes the Zimbabwe Electoral Commission
and provides for its functions in detail.
the election of parliamentary and local authority representatives,
Zimbabwe practices the 'first past the post' (FPTP) electoral system
inherited from the Westminster-type plurality or single-member district
(SMD) system, in which the candidate with the highest number of
votes wins. It must be noted that a winner may be elected on the
basis of less than 51 percent of voters in constituency.
Zimbabwe Electoral Commission
the enactment of the Constitution of Zimbabwe Amendment Act (No.17)
Act 2005 and the Zimbabwe Electoral Commission Act No. 22 of 2004,
the management and supervision of elections in Zimbabwe is now the
responsibility of the Zimbabwe Electoral Commission.
are as follows: · To prepare for, conduct and supervise all
elections and referendums and to ensure that such elections are
conducted freely, fairly, transparently and in accordance with the
law. · To supervise the registration of voters being conducted
by the Registrar of Voters · To compile voters' rolls and
registers · To ensure the proper custody and maintenance
of voters' rolls and registers · To design, print and distribute
ballot papers, approve the form of and procure ballot boxes, and
establish and operate polling centres · To conduct voter
education · To accredit observers of elections and referendums
· To give instructions to the Registrar-General of Voters
in regard to the exercise of his functions · To instruct
other persons in the employment of the state or local authority
in order to ensure efficient, proper, free and fair conduct of elections,
and · To exercise any other functions the Electoral Law and
any other law may impose that on the Commission.
was introduced through the Constitution of Zimbabwe Amendment Act
(No. 18) Act of 2007. This effectively abolished the Delimitation
Commission whose function was to determine the limits of the 120
house of assembly constituencies and 50 senate constituencies into
which Zimbabwe was previously divided.
is given functions in addition to those set out in the Constitution.
In particular, the Commission will be enjoined to undertake research
into electoral matters, to promote co-operation between the Government
and political parties and other bodies concerned with elections,
and to inform the public about all issues relating to elections.
Composition of ZEC The Commission's composition is dealt with in
section 61 of the Constitution rather than in the Zimbabwe Electoral
Commission Act, and amendments were made by the Electoral Laws Amendment
Act to reflect this fact. Making the Commission a constitutional
body, rather than one which owes its existence to an Act of Parliament,
should theoretically make the Commission more independent, and for
that reason is a welcome move.
Staff of the
Commission The Electoral Commission obviously needs a substantial
body of staff to carry out the work needed on the ground to fulfil
the Commission's onerous functions in connection with elections.
It is vitally important that these staff members be properly trained
and they must perform all their duties professionally and without
In terms of
the Electoral Laws Amendment Act of 2008, employees of the Police
Force, Defence Forces and the Prison Service can no longer be seconded
as staff of the Commission except where their services are required
for the provision of security. (Section 17 of ZEC Act as amended)
The pool of
persons who can now be seconded to the Commission has been expanded.
Now not only persons employed by the Public Service Commission may
be seconded; the Commission can also call upon the Health Services
Board and responsible authorities of any statutory or local government
body to make their employees available for election service.
However, it is hoped that seconded persons such as recently retired
members of the armed forces will not circumvent this provision.
It should also be pointed that on the staff of the Commission there
are already a number of ex-military officers dealing with electoral
management. Even though these persons resigned from their military
positions when they were engaged, there is a perception that the
management of elections has been heavily militarised. The law should
also explicitly exclude members of intelligence services. Members
of these forces are now viewed, as being politically partisan and
the use of such personnel in connection with elections is intimidatory.
None of the
changes made by the Act will have much effect on the functioning
of the Commission unless the Commission's members are perceived
to be politically independent, efficient, and dedicated to ensuring
that elections are held in accordance with the law.
to emphasize the importance of the Electoral Commission's impartiality,
all-inclusiveness, competence and accountability. The method of
appointment of Commissioners should be changed to reassure political
parties and the electorate that Commissioners will be impartial.
ZEC should be appointed with the participation of opposition parties
and key stakeholders. The selection process of commissioners should
be transparent and engender confidence in all stakeholders. These
selection processes should also ensure that gender and youth participation
or representation is achieved. Adequate,
qualified personnel should also staff ZEC. It is necessary to ensure
the independence of the ZEC, including financial autonomy Commissioners
could each be given areas of responsibility to enhance accountability.
The law could require the commissioners to divide among themselves
responsibility for the Commission's different activities so that
each commissioner would be responsible for a particular activity.
This would promote equal participation of all Commissioners. An
alternative way of distributing functions between Commissioners
would be to give each Commissioner the responsibility for a particular
Electoral Act establishes the office of the Registrar-General of
Voters and gives it extensive powers to deal with the registration
of voters, prepare the voters roll and take measures to prevent
Laws Amendment Act (2008) will make the Commission, rather than
the Registrar-General, responsible for keeping and maintaining voters
rolls. While this is a welcome change, but the Amendment seems to
fail to make a clear demarcation between the functions of the Commission
and the Registrar-General in regard to voter registration. Thus,
while the Commission will "keep and maintain" the rolls,
the function of registering voters and updating the rolls will remain
with constituency registrars, who are under the control of the Registrar-General.
The Amendment also requires the Registrar-General to get permission
from the Commission, rather than the Minister, before delegating
his functions to some other member of the Public Service. To the
extent that this gives the Commission greater responsibility over
the electoral process, it is to be welcomed.
the current Electoral Act, the Zimbabwe Electoral Commission has
primary responsibility for conducting a programme of voter education.
The Amendment Act includes further provisions on voter education
15, 15A and 15B of the Electoral Act as amended). The Commission
must commence a programme of voter education not later than 90 days
before the polling day of an election. The Amendment Act provides
that the Government must give the Commission whatever assistance
it may require to conduct voter education.
Electoral Commission Act obliges the Commission to conduct accurate
and unbiased voter education. Thus in conducting its programme the
Commission is be expected to ensure that those it employs have sound
knowledge of the electoral laws and processes and that they remain
scrupulously impartial and do not show bias for or against any particular
Electoral Commission Act contains various provisions regulating
the conduct programmes of voter education by civic organisations
and other interested stakeholders. The Commission may require a
civic organisation to furnish it with copies of all the proposed
voter education materials; the materials must be adequate and not
misleading or biased in favour of any political party; and only
the Commission may receive foreign funds for voter education, although
it may distribute these funds to other organisations involved in
the provision of voter education; the persons providing voter education
must be citizens or permanent residents, domiciled in the country
and they must, operate through an organisation with a specific mandate
to provide voter education.
Laws Amendment Act of 2008 contains further provisions allowing
the Commission to control voter education by other organisations.
The Commission is empowered to close down a voter education programme
being conducted by a civic organisation if it considers the organisation
is providing materially false or incorrect information that is unfairly
biased in favour or against a contesting political party, and the
programme therefore is likely to prevent a substantial number of
voters from making an informed choice in an election. Before closing
down a programme the Commission must give the affected organisation
an adequate opportunity to make representations in the matter.
Delimitation of electoral boundaries
The Zimbabwe Electoral Commission is now responsible for delimiting
constituencies and other electoral boundaries. The Commission will
be obliged to give public notice before embarking on a delimitation
exercise, and "so far as is practicable within the time available"
will have to entertain representations from political parties and
other interested parties who are likely to be affected by its decisions.
Prior to the Electoral Laws Amendment Act 2008, only the President
has the power to require the Commission to give "further consideration"
to its report before finalising it.
registration and voter's roll
will be continuous, with citizens entitled to apply for enrolment
at any time. Rolls will not be regarded as closed for new registrations
in any election until the day before nomination day in the election
concerned. Persons who claim registration on a particular roll will
be able to produce any satisfactory documentary evidence reasonably
proving where they live. This is a welcome change because at present
the Act makes the process of establishing residence difficult, particularly
for urban residents in high-density suburbs.
Copies of voters'
rolls The Commission is now obliged to provide, on payment of a
fee, one electronic copy of a voters roll to each political party
contesting an election. The copy will have to be provided within
seven days after the calling of the election concerned, which means
that the copy will never be entirely up to date since as indicated
above -additional voters may be registered until the day before
nomination day in the election. Printed copies of voters' rolls
will be made available to interested parties on payment of a reasonable
fee. It may be noted that there does not seem to be any requirement
that the fee for the electronic copy of the roll must be reasonable.
It is also notable that while the Electoral Laws Amendment Act requires
the Commission to provide printed copies of voters roll on request
at any time, its obligation to provide electronic copies is restricted
to the period after an election has been called. If voter registration
is continuous and the rolls are stored electronically, they should
be available at any time in both printed and electronic form.
The Electoral Laws Amendment Act 2008 introduced new provisions
(Section 133A of the Electoral Act) specifically criminalising a
range of practices, which will constitute the offence of intimidation.
The provisions spell out in detail what constitutes the offence
of intimidation. For example, inflicting or threatening to inflict
bodily harm, causing or threatening to cause bodily harm or abducting
a person is an offence if the person doing these things compels
a person or persons generally to vote for a political party or to
refrain from voting or to attend a political meeting. The offence
will also be committed by a person who, in order to compel another
person to vote for a political party, withholds or threatens to
withhold any assistance to which that other person is entitled or
illegally does or threatens to do anything to the disadvantage of
There are further
provisions, which seek to stamp out other forms of intimidation.
Thus it is an offence for a person to use intimidation to prevent
or obstruct or attempt to prevent or obstruct a political party
or candidate from campaigning in any election. It is also an offence
for a person to prevent or discourage a person from voting by taking,
destroying or damaging another person's proof of identity, voters'
registration certificate or other document by which that person
may be identified as a voter.
Act also contains provisions that are intended to ensure that polling
stations are not located at sites, which may be intimidatory to
voters. Thus polling stations may not be sited in premises owned
or occupied by a political party or a candidate; in a police station,
barracks or other place where police officers or Defence Forces
are permanently stationed; at any other place that may give rise
to a reasonable apprehension by voters that their votes will not
be secret or that the integrity of the voting process could be compromised.
practice will also constitute an electoral malpractice. This will
allow the Electoral Court to declare void an election where the
Court finds in an election petition that the intimidation was committed
by or with the knowledge and consent or approval of the candidate
returned at that election, or by or with the knowledge and consent
or approval of any of his or her agents, and the effect of such
practice was such as to have materially affected the outcome of
penalty for most of these practices, except theft or destruction
of voter identification, is five years' imprisonment.
offences include personation, which is applying for a ballot paper
in the name of some other person. It is illegal to attempt to vote
twice in an election. [Section 137 of the Electoral Act]. It is
also illegal for any person to impede or prevent a voter from exercising
his or her rights or to compel a voter to vote or refrain from voting
in an election. [Section 134] It is also illegal to bribe voters
as a way of persuading them to vote for you. Bribery includes giving,
lending or getting any money to, for or on behalf of any voter at
any stage of the election process from registration to voting, including
any procession or demonstration. [Section 136]
For these provisions to be effective they will need to be properly
enforced by the law enforcement agencies. Where complaints of political
intimidation are made to the Electoral Commission, the Commission
should be given powers to direct the Commissioner-General of Police
to ensure that an urgent and proper investigation is conducted into
28(3) and 58(1) of the Constitution of the Constitution requires
presidential, parliamentary and local authority elections to be
held simultaneously, the Electoral Laws Amendment Act 2008 makes
the necessary amendments to the Electoral Act.
be entitled to vote even if they are not registered on the ward
voters roll, so long as they can produce a voters' registration
certificate (which, presumably, must show that they are entitled
to be registered on the roll) . Before being issued with a ballot
paper, a registered voter will have to produce a voters' registration
certificate or proof of identity. It should be noted that few if
any voters have been issued with voter's registration certificates.
The Electoral Act allows polling to be held over one or more days.
Polling days will be regarded as public holidays, and presumably
they will be fixed so as to coincide with a weekend.
Conduct of poll
Before polling begins, every presiding officer will have to count
and record the number of ballot papers received at his or her polling
station, and the count will have to take place in the presence of
candidates, election agents and observers.
The number of
voting compartments and ballot boxes to be provided in each polling
station is no longer fixed in the Act but is left to the discretion
of the presiding officer. However, presumably the Commission will
be able to specify the number through directives or regulations.
Role of Police
The Amendment Act provided that police officers would be excluded
from polling stations, except when they are voting or when they
are specifically summoned to assist election officers in quelling
exclusion of the police from the process was reversed by the Presidential
Powers (Temporary Measures) (Amendment of Electoral Act) Regulations
2008 gazetted on 17 March 2008, which provides that police office
on duty are restored to the list of persons authorised to be present
in a polling station.
physically handicapped voters The Electoral Law Amendment 2008 stipulates
that illiterate and physically handicapped voters to be assisted
to vote by two electoral officers or employees of the Commission,
rather than by the presiding officer of the polling station in the
presence of a policeman, as was previously provided by the Act.
This was in tandem with the view that the presence of police could
be intimidating to some of these voters.
have however also been affected by the Presidential Powers (Temporary
Measures) (Amendment of Electoral Act) Regulations 2008. Illiterate
or handicapped voters will be assisted by the presiding officer
I the presence of two other electoral officers and a police officer
The law should go further and require the Commission to disclose
the total number of ballot papers printed for each election. Only
a trusted friend or relative to safeguard the secrecy of their ballot
and avoid intimidation should assist assisted voters.
and tabulation of results
Laws Amendment made several minor changes to the way in which votes
are counted and the results of elections are collated and announced.
votes at polling stations Candidates and their agents will no longer
be allowed to put their thumb-prints, signatures or seals on ballot
boxes which are sealed in a polling station at the close of polling.
The rationale behind this apparently that the new translucent ballot
boxes have no space for additional seals or signatures. However,
this seems an inadequate reason for abolishing a small but valuable
safeguard against electoral fraud.
When the votes
have been counted at a polling station, the presiding officer will
have to record them on a return and post them up outside the polling
station before sending them to the constituency elections officer.
This must be done in the presence of the candidates and their agents
and will certainly go some way towards ensuring transparency in
the counting process, so long as candidates and political parties
are able to deploy agents at every polling station to witness the
counting of votes.
Commission is given power to order a recount of votes at any polling
station, either on its own initiative or at the request of a candidate
or political party contesting the election, if the Commission has
reason to believe that a miscount occurred which might affect the
result. The Commission's decision to order, or not to order, a recount
will not be subject to an appeal. It is however recommended that
the decision be.
Although votes are counted at polling stations in the presence of
monitors, observers and polling agents, the Electorate sometimes
is fearful of retribution since polling station will be available.
Voter education should help in informing the electorate to ease
fears such as the fear that that translucent ballot boxes negates
the secrecy of their ballots. The prevention of electoral fraud
is also critical.
of the Electoral Act restricts postal voting to disciplined force
members and electoral officers who will be absent from their constituencies
on electoral duties; Government officials who are absent from the
country on Government service; and spouses of such persons.
The Electoral Commission should be given the power to establish
a system that allows Zimbabweans living outside the country to vote
by post if they are unable to return to Zimbabwe to cast their votes.
the new provisions of the Electoral Laws Amendment Act 2008, all
observers will have to be accredited by theElectoral Commission's
Observation Accreditation Committee. The observers will be accredited
to observe over the election period. Election period is defined
as the period from as from the calling of an election to the declaration
of the result.
Observation Accreditation Committee had five members. The chairperson
or vice-chairperson of the now defunct Electoral Supervisory Commission
chaired it. The other four members were ministerial and presidential
nominees. Under the Amendment Act, this Committee will consist of
six members, three of them being commissioners (the Commission's
chairperson will chair the Committee.) The Commission's vice-chairperson
willalso sit on it, together with one other Commissioner designated
by the Commission. The other three members are ministerial and presidential
Minister of Foreign Affairs was responsible for the invitation of
individuals representing foreign ountries or international or regional
organisations & foreign eminent persons to observe elections
in Zimbabwe. In terms of the Electoral Laws Amendment Act 2008 such
persons can apply to Electoral Commission & Observer Committee,
which decides whom to accredit. However, the Committee cannot accredit
a person if the Foreign Minister objects to such person observing
the election. Thus the law gives veto powers t the Minister. These
provisions also apply to individuals representing bodies in the
region that exercise functions similar to those of Commission, which
are invited by ZEC to observe elections.
representing local organisations & eminent persons from within
Zimbabwe are similarly accredited,savethat the Minister of Justice
Legal and Parliamentary Affairs in addition to veto powers, has
the right to invite such persons to observe the election
· Observe the election process between the calling of the
election and the declaration of the result of the poll; ·
Observe the conduct of the polling at the election; · Be
present at the counting or collating of votes cast at the election
and the verification of polling station returns by presiding officers;
· Bring any irregularity or apparent irregularity in the
conduct of the poll or the counting or collating of the votes to
the attention of the Commission.
It is a criminal
offence to obstruct the performance by an observer of his or her
The Commission should decide on which observers to accredit and
there should be no Ministerial veto power. The Electoral Commission
must accredit sufficient numbers of local and international observers
to allow comprehensive observation of elections. This function should
lie solely in the hands of the ZEC, which should not indulge in
Court has remained in limbo since the Supreme Court's judgment in
Marimo & Anor v. Minister of Justice, Legal and Parliamentary
Affairs & Ors (S-25-2006) was delivered in July last year. The
Supreme Court held that the method by which judges of the Electoral
Court were appointed contravened section 92 of the Constitution.
The Amendment Act corrects the Electoral Act in this regard.
of the Electoral Court is restricted to the hearing of appeals and
petitions under the Electoral Act. The court should be able to resolve
expeditiously disputes before the election has taken place. The
current Electoral Act requires the Court to determine election petitions
within six months of the date of its presentation. The determination
of pre-election disputes should be done fairly but within a very
tight time frame.
There is need for competent, effective, independent and impartial
Judiciary and electoral institutions. There is also need to complement
the judges of the Electoral Court with staff, equipment and adequate
resources. This Court should be given jurisdiction to resolve disputes
before the election has taken place.
Media coverage of elections
Electoral Laws Amendment Act contains a number of provisions that
seek to ensure fair media coverage during the election period. The
provisions relate to public broadcasters and other news media.
The Amendment Act empowers the Zimbabwe Electoral Commission, with
the approval of the Justice Minister, to pass regulations governing
electoral reporting by the public media. As the Commission should
be independent of political influence, the requirement that these
regulations receive Ministerial approval should be removed.
broadcasters are obliged to "afford all political parties and
independent candidates such free access to their broadcasting services
as may be prescribed" in the regulations. The regulations must
provide for the total time allocated to each political party or
candidate; the duration of each broadcast by the party or candidate;
and the times when and areas to which such broadcasts are to be
must ensure that there is a fair and balanced allocation of time
between each political party and independent candidate; each political
party and independent candidate is allowed a reasonable opportunity
to present a case through the broadcasting service concerned.
is placed under an obligation to monitor broadcasters during the
election period to ensure that they observe these provisions.
the next elections in Zimbabwe more broadcasters should be allowed
to start to operate so that the public can receive a greater diversity
of information and viewpoints. Print media The Amendment Act also
provides for various obligations on the print media and broadcasters.
During the election period such media must ensure that ·
They treat equitably all political parties and candidates in regard
to the extent of their coverage and the timing and prominence of
their coverage; · Their reports are factually accurate, complete
and fair; · They make a clear distinction between factual
reporting and editorial comment; · They rectify inaccuracies
in reports without delay and with due prominence; · They
give a reasonable right of reply to political parties and candidates
where they claim that the reports about them are false; ·
They do not promote political parties or candidates that encourage
violence or hatred against any class of persons in Zimbabwe; ·
They avoid in their reports language encouraging racial, ethnic
or religious prejudice or hatred or inciting violence or likely
to lead to undue public contempt towards any political party, candidate
or class of persons in Zimbabwe.
of media coverage The Amendment Act imposes a duty on the Zimbabwe
Electoral Commission to monitor news media to ensure that political
parties, candidates, broadcasters, print publishers and journalists
do not breach the new provisions of the Act. The Act does not, however,
address the issue of how the Commission is to deal with any such
breaches. It is not given any explicit powers to sanction the media
institution concerned by imposing penalties.
Act requires broadcasters and print publishers, when required to
do so by the Electoral Commission, to publish the Commission's statements
informing voters about aspects of the voting process. The Commission
is required to pay a reasonable fee for such publication. In its
post-election report the Commission is obliged to include a report
on the coverage of the election by the news media.
It is significant
that the Amendment Act provides that these provisions relating to
the media will prevail even if theyare inconsistent with the
Broadcasting Services Act, the Access
to Information and Protection of Privacy Act or any other enactment.
In conclusion, without the requisite implementation of constitutional
and electoral framework, and the creation of an atmosphere in which
persons can campaign and vote freely, we will miss the mark as a
nation and it is unlikely that the result of the elections in March
would be indisputably free, fair and democratically expressive of
the will of the people. ZESN remains committed to values that ensure
that citizens freely participate in elections in an informed manner
and in a free political environment. The Network urges all stakeholders
to work together to ensure participatory and people-driven democratic
processes in the governance of the country; the security of citizens,
their enjoyment of freedoms of movement, assembly and association
and the existence of a political and social environment that is
conducive to holding free and fair elections.
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