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ERC alternative provisions to the Electoral Amendment Bill 2011
Election
Resource Centre
September 29, 2011
The ERC has
expressed its opinion on some provisions of the Electoral
Amendment Bill which seeks to create a conducive environment
for new elections bringing an end to Zimbabwe's current political
compromise, namely the Global
Political Agreement and Inclusive
Government. Having presented its opinion, highlighting concern
over certain provisions within the Electoral Bill which may not
enable a conducive electoral environment, ERC has prepared alternatives
to the provisions in questions. These alternatives suggest an amendment
to the current provisions to ensure that Zimbabweans are guaranteed
their right to participate freely in new elections leading to a
fair result that ushers in a democratically elected government.
Removal
from the Roll
Section 36B
(c) allows the removal of a voter from the voters roll on the grounds
that such voter: "has left Zimbabwe with the intention of
residing permanently outside Zimbabwe".
This provision
deprives Zimbabwean citizens who leave the country to reside in
foreign countries, but who still keep their Zimbabwean citizenship,
their right to participate in the governance of Zimbabwe through
voting in elections. Zimbabwean citizens in the diaspora who keep
their citizenship and do not assume foreign citizenship must be
allowed to retain their right to vote. The Constitution
of Zimbabwe, Section 23A (2) (a), guarantees that "every adult
Zimbabwean citizen shall have the right to vote" in referendums
and elections.
The new electoral
laws must guarantee and enable the exercise of the right to vote.
Zimbabwe may follow the example set by other SADC countries, such
as South Africa and Mozambique that have guaranteed the right of
their citizens in the diaspora to vote. The Electoral Law of Mozambique,
Act n. 7/2004 provides that "The voters residing abroad shall
have two electoral constituencies, one being one for countries in
the African region and the other for the rest of the countries."
During its 2004 and 2009 elections Mozambique registered voters
in countries with large Mozambiquean populations, such as in Zimbabwe,
South African and Portugal.
Zimbabwe has
had millions of its citizens leave the country over the past decade,
with an estimated, 3 million Zimbabweans in South Africa alone.
Those citizens who have maintained their single Zimbabwean citizenship
must be allowed to vote in Zimbabwe's general elections.
Alternative
Given such a
right the new Electoral Act must:
Acknowledge
and guarantee the right of Zimbabwean citizens in the Diaspora to
vote, and provide for mechanisms to enable the exercise of such
right.
Thus The proposed
Subsection (c) of Section 36B must be amended to the effect that
citizens of Zimbabwe who leave the country, but continue to maintain
their Zimbabwean citizenship, cannot be removed from the voters
roll but simply transferred to a separate voters' roll for
Diasporans.
Zimbabwe could
also consider the Mozambique and Sierra Leone's provisions
on Diaspora Voters.
In Mozambique
Diaspora Voters have at least two seats reserved for them. Thus
two seats for Zimbabweans in Europe and those in Africa could also
be reserved for those in the Diaspora. Separate voters' roll
could be created for such voters, separating them from citizens
residing in Zimbabwe voting for candidates to represent them within
their constituencies. The Electoral Law of Mozambique provides that:
Article
11
1. Citizens
who reside and have been registered abroad can exercise their voting
rights at their Republic of Mozambique embassies and consulates.
2. The electoral acts can only take place after the National Electoral
Commission has verified that the necessary material conditions and
the control mechanisms, follow up and inspection of the said acts,
in the region or regions of the electoral district.
3. In the absence of the acts referred to in the previous point
the National Electoral Commission shall redistribute to the other
electoral districts the mandates of the electoral districts of the
Mozambican communities abroad, in accordance with the criteria set
in the present law.
Article
42
The polling
stations constituted out of the country shall function in places
indicated by embassies, general consulates or government representations
in foreign countries.
Zimbabwe may
also learn from Sierra Leone where, "The Diaspora Voting Act
of 2011" has been tabled to enable Sierra Leone's Diaspora
Voters to enjoy their constitutional right to vote. Unlike with
Mozambique no seats have been reserved for Diaspora voters, whose
vote is simply added to the national vote. Some notable provisions
within this Act are;
"Diaspora
Voter" refers to a citizen of the Republic of Sierra Leone
who is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections.
Diaspora Voters have to personally apply for registration with a
representative of the Electoral Commission at the country's
embassy, consulate or Foreign Service establishment.
"National Registry of Diaspora Voters" refers to the consolidated
list prepared, approved and maintained by the Commission of Diaspora
voters whose applications for registration as voters, including
those registered voters who have applied to be certified as voters,
have been approved by the National Electoral Commission.
The Commission shall cause the printing of ballots for Diaspora
voters, voting instructions, and election forms in such number as
may be necessary, Security markings shall be used in the printing
of ballots for Diaspora voters. The Commission shall, not later
than thirty (30) days before the day of elections, transmit by special
pouch to the embassies, consulates and other foreign service establishments,
the exact number of ballots for Diaspora voters corresponding to
the number of approved applications, along with such materials and
election paraphernalia necessary to ensure the secrecy and integrity
of the election.
Upon receipt by the designated officer of the embassy, consulate
and other foreign service establishments of the ballots for Diaspora
voters, voting instructions, election forms and other paraphernalia,
he/she shall make them available on the premises to the qualified
Diaspora voters in their respective jurisdictions during the thirty
(30) days before the day of elections when Diaspora voters may cast
their vote. Immediately upon receiving it, the Diaspora voter must
fill-out his/her ballot personally, in secret, without leaving the
premises of the embassies, consulates and other foreign service
establishments concerned.
The Diaspora voter shall cast his/her ballot, upon presentation
of the Diaspora voter identification card issued by the Commission,
within thirty (30) days before the day of elections. The Diaspora
voter shall be instructed that his/her ballot shall not be counted
if it is not inside the special envelope furnished him/her when
it is cast.
The counting
and canvassing of votes shall be conducted on site in the country
where the votes were actually cast. The opening of the specially-marked
envelopes containing the ballots and the counting and canvassing
of votes shall be conducted within the premises of the embassies.
In South Africa's
2009 National Assembly elections there was successful incorporation
of electronic voting, with as many as 16,000 South Africans casting
votes through the web simply by providing proof of their identity
and voter registration. This of course raises questions about the
reliability of e-voting, yet it is a process that shows how the
diaspora can exercise their right to vote.
Voter
Education: Section 40C (1) (h) read with 40F
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 any person assisting in voter education.
Alternative
Proposed provisions
(see sec 40B) clearly empower the ZEC over any voter education,
including monitoring any voter education to be conducted in Zimbabwe.
This means that there is little need to deny "foreign"
funded Zimbabweans or organizations carrying out voter education
when such education activities can be monitored by the ZEC, with
real deterrent consequences for non-compliance spelt out under sec
40E (5).
Rather than
barring voter education by foreign funded Zimbabwean citizens or
organizations section 40C (h) and 40F, Zimbabwean organizations
must be allowed to carry out voter education under the strict guidance
of the ZEC. ERC is of the opinion that section 40F be removed.
C. Accreditation
of Observers: Section 40H
Section 40G
allows observers, including, foreign and international observers,
to observe the electoral process. Section 40H goes on to provide
that the Observers Accreditation Committee shall consider applications
for accreditation as an observer. The application process for observed
status is as follows:
Section 40I (3): The Chief Elections Officer shall without delay
forward to the Observers Accreditation Committee all applications
for accreditation that he or she has received . . . the Observers
Accreditation Committee shall forthwith consider the applications.
The timelines for the consideration of accreditation are not clear,
creating the risk of unnecessary delays in accrediting observers
timously, enabling observes to be on the ground when the election
process begins, and in particular the conduct of polling at the
election. Observers might find their accreditation delayed to the
extent that they are only able to observe the elections from the
casting of votes.
Alternative
There is need
to set timelines for the accreditation of observers. Section 40I
(1) may be amended to include the following: "An application
for accreditation as an observer shall be made to the Chief Elections
Officer, at any time after a call for elections had been made. Further,
section 40I(3) must require that the Chief Election Officer shall,
within 48 hours of receiving applications for accreditation, forward
to the Observers Accreditation Committee all received applications
for accreditation. The Observer Accreditation Committee must proceed
to consider such applications within seven days.
Where the Commission intends to reject an application for accreditation,
under section 40I (5), there must be a provision for an applicant
whose accreditation has been rejected to be informed in writing
of reasons for such rejection with 48 hours of the rejection. A
similar notification to the applicant is provided for in South Africa's
Electoral Act 73 1998, section 84 (4)(b).
D. 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"
Section 23A (2) (a) provides that a Zimbabwean citizen has a right
to vote "and to do so in secret".
Alternative
There must be
a system of postal voting that does not require a voter to write
his name on a Ballot Paper Envelope, thereby violating secrecy of
the vote. Instead the Commission can provide secret voting numbers
to postal voters, which numbers are used to identify voters, rather
than make use of their names.
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