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The road ahead: Facts and fears in the Electoral Amendment Bill (2011)
Election Resource Centre
July 12, 2011

The Election Resource Centre (ERC) has in the past weeks contributed to the on-going debate on the political reforms through providing a preliminary commentary on the proposed electoral reforms. Consistent to that, the ERC in this paper endeavours to make a more detailed analysis of the facts and possible fears emanating from the recently gazetted Electoral Amendment Bill (H.B.3) 2011.

The Electoral Amendment Bill seeks to amend the Electoral Act [Chapter 2:13], by making several changes which include the following:

(a) to incorporate the provisions of the Zimbabwe Electoral Commission Act [Chapter 2:12] into the Electoral Act and to repeal the former Act;

(b) to base the voting process at polling-station level, with voters obliged to vote at their nearest polling stations rather than at any polling station within their constituencies;

(c) to ensure that electronic copies of voters rolls are available in analysable form;

(d) to restrict postal voting to voters who are outside the country on Government business;

(e) to allow electoral officers and members of the Police Force and Defence Forces who have to be away from their constituencies on duty during an election, to cast their votes in advance of the election at special polling stations established for the purpose;

(f) to introduce greater transparency in the counting and collation of votes at all levels;

(g) to establish new mechanisms to prevent politically-motivated violence and intimidation during elections;

(h) to extend the jurisdiction of the Electoral Court;

(i) to ensure that the results of presidential elections are announced speedily;

and in addition to correct anomalies and discrepancies in the Electoral Act.

The Electoral Amendment Bill, 2011 that will soon be tabled before parliament for debate, still raises several issues which might militate against the creation of a stable and fair electoral environment. In the foregoing analysis, the ERC attempts to highlight both the progressive and the retrogressive proposals from the Electoral Amendment Bill 2011;

Polling station Vs Ward based voters' rolls

As already highlighted in previous critiques from the ERC, the adaptation of a polling station specific voting system in the absence of security guarantees for the voter, only serves to accommodate further disenfranchisement of voters through displacements. In Zimbabwe's often intimidatory and violence prone elections characterized by incessant political conflict, it becomes easier for merchants of organized violence to identify and target those areas and persons viewed as supporting particular parties. This provision, if adopted has the potential of perpetuating and enabling widespread victimization of perceived political enemies during the voting period as well as in the post-electoral period. The ERC believes a broader approach to the roll such as the one prevailing now would allow insecure voters to travel to safer polling stations to cast their ballots within the same ward. The ERC also notes that whilst the Bill proposes to base the voting process at the polling station level, a new sub clause (8) has been inserted which mandates the Chief Elections Officer to provide sufficient copies of the ward voters' roll to every polling station. The Bill therefore remains unclear on how it would operationalize the usage of a ward voters' roll in the context of a polling-station level voting system. The Bill indeed fails to explicitly mention whether the proposed system shall rely on a ward voters' roll or a polling station voters' roll during the authentification of eligible voters at voting.

Removal from the roll Section 39B

(a) The provision that one will be removed from the roll if they have been absent from the constituency for a period of 12 months is not conscious of the realities in Zimbabwe where families and breadwinners are constantly moving and still sending money home. Some of these potential voters can only afford to go home once every year and they maybe unable to secure proof of residence in some of the urban areas they reside due to reluctance by landlords. The provision has the risk of disenfranchising a significant proportion of voters. The ERC therefore proposes that the provision must instead; focus more on ensuring a comprehensive access of the registration process to all eligible and interested potential voters who still hold Zimbabwean citizenship. The ERC further recommends that the ongoing electoral reforms must allow voters the opportunity to decide where they would like to register on their own as long as they can provide proof of residence.

(b) Section 39B (c) allows the removal of any voter from the voter`s roll who leaves Zimbabwe to reside permanently in another country. This provision raises some concerns. With millions of Zimbabweans already in the Diaspora, many having left the country in pursuit of economic reprieve, they however cannot participate in the country's elections given resistance to the Diaspora vote, and even more worrying is the fact that the proposed amendments have intentions of even barring the existence of their names in the roll. This effectively disenfranchises even those citizens whose visits back home might coincide with the occurrence of an election. This proposed provision thus has the effect of blanketing all Zimbabweans in the Diaspora and denying them any right to vote even where they may have an intention of returning home. Clearly the provisions, if adopted effectively terminate the prospects of enabling external voting to all Zimbabweans in the Diaspora.

There is indeed a need for steps to be taken to ensure that at least those Zimbabweans maintaining with their Zimbabwean citizenship are enabled to participate in their country's elections.

Identity and Proof of Residence: Section 23 (5):

While the ERC notes that proposed amendments to section 20, commendably allow a person to prove his or her identity and residence by an other means beyond those prescribed by the Electoral Commission the issue of proof or residence which, in the past, has successfully disenfranchised thousands of potential voters still requires some intervention by the Zimbabwe Electoral Commission and other stakeholders there is need for efficiency in determining the residential status of thousands of Zimbabwean voters without title to their places of residence (those leasing properties, and that of rural folk whose security of tenure and residence in rural communities is at the discretion of traditional leaders/chief, which traditional leaders have often been accused of being discriminatory on political grounds when exercising their discretion.

Voter Education: Section 40C (1) (h) read with 40F

The ERC acknowledges that voter education must be regulated by the Electoral Commission to ensure uniformity and to safeguard the electorate from potentially misleading voter education. The ERC however firmly believes that it is important for civil society organisations constituted by Zimbabwean citizens or permanent residents are also given a role to provide complementary voter education which ultimately would benefit the electorate since a critical mass of potential voters would have received voter education.

It will be noted that these organisations rely largely on foreign funding to carry out any effective voter education. However the proposed section 40C (1) (h) read with section 40F prohibits voter education by any Zimbabweans or civil society organisations that receive direct foreign contribution or donation. It is only the Electoral Commission which can receive such foreign contribution and donations and thereafter allocate them to others wishing to undertake voter education. The ERC believes that such a provision is an unnecessary restriction in ensuring adequate voter education. Given that the new amendments contain enough safeguards, including empowering the Electoral Commission to inspect any voter education materials, programmes and to monitor the same, and to bring any educator to account, there is clearly no need to deprive participation by citizens/residents and organisations wishing to conduct voter education. Monopolising all foreign contributions and donations towards voter education within the Electoral Commission may well hinder any effective and wider voter education.

Observing Elections: Section 40G

(a) The ERC notes that the proposed section 40G (1) (a) makes provision that observers are entitled "to observe the election process and, in particular, the conduct of polling at the election". ERC is of the opinion that an "election process" by definition includes the process of campaigning by candidates and political parties, registration on voters roll, nomination of candidates etc. such an interpretation should be the case given the fact that the proposed amendment, s 40G (1) (a) goes on to outline that observers can indeed observe the election process, and, "in particular, the conduct of polling at the election", The "conduct of polling at the elections" is thus just a part of the whole election process which must be monitored. The ERC would therefore like to emphasise the need for the observer accreditation processes to be timeous such that observers are able to observe elections from the very moment of campaigning by candidates and their political parties.

(b) While the proposed amendment under section 40H(2)(a) will allow foreign and international observers, the ERC remains concerned that there may be political interference from government to restrict and bar full participation by international observers. The Observers Accreditation Committee has seven members four of whom are appointed by government Ministries and may thus be susceptible to pressures to bar certain international observers. The ERC would therefore urge that the Commission ensure that any recommendations on applications for accreditation presented to it by the Observers Accreditation Committee do not bar or discriminate against foreign/international observers.

(c) The proposed section 40I [3] will mandate the Chief Elections Officer to forward, without delay, applications for accreditation to the Observers Accreditation Committee, which Committee shall forthwith consider the applications. The ERC wishes to emphasise the importance of an effective and efficient accreditation process, including making calls within good time to enable observers to be on the ground in good time and to ensure that they are enabled to undertake their observation without any interference and intimidation.

Observer Accreditation Process: Section 40I (1)

The provision that each and every observer needs to singularly submit their applications for observer status to the Chief Elections Officer who must forward such applications for determination to the Observers Accreditation Committee is clearly cumbersome and prone to cause the unnecessary delays that may cause observers to be accredited late and thus unable to observe the whole election process. Given the fact that in the 2008 elections, nearly 10 000 observers were invited for accreditation; it would be a logistical nightmare for the Committee to meet the invited observers. One of the recommendations given by domestic observation groups has been the need to decentralise the accreditation process to the provinces and the ERC strongly urges the amendment to focus more on easing the accreditation process through such decentralisation. The clause should be clear that the Accreditation Committee will set up provincial centres for the purposes of accrediting observers and vetting them.

Postal Balloting Section 75 (1) (b), read with 70 (1) (c)

These new sections are to the effect that a postal voter shall have to send his/her marked ballot paper in an envelope marked "Ballot Paper Envelope", on the back of which Envelope shall be written the name of the voter, his or her voter registration number and the constituency and ward in which he or she is registered. Such provisions raise serious concerns regarding secrecy of the ballot given the fact that the Chief Elections Officer receiving such ballot paper will be able to identify the manner in which a postal voter has voted through the marked "Ballot Paper Envelope."

Given the controversy surrounding the 2008 postal votes, this proposed amendment needs to protect the secrecy of the ballot through explicitly protecting the successful applicant of the system. Such protection can come through introducing an inner envelope with the name of voter and an outer one which will be shown to election agents and observers. Tightening the process of opening such ballots will also protect the secrecy of the postal ballots.

The Election Resource Centre maintains that the ultimate product from the on-going electoral reforms must harness and reflect contributions from all election stakeholders including the legislature, executive, civic society and more importantly the general concerns of the electorate.

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