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Electoral
legislation - An Overview Zimbabwe 2005
Otto Saki,
Zimbabwe Lawyers for Human Rights (ZLHR)
July 11, 2005
http://www.zlhr.org.zw/legwatch/electoral_leg_2005.htm
Overview
of the legal implications of electoral legislation, Electoral Act,
Zimbabwe Electoral Commission Act, and other pieces of legislation
"If a person
cannot walk into the middle of the town square and express his views
without fear of arrest, imprisonment, or physical harm, then that
person is living in fear society, not a free society" Nathan
Sharansky
Introduction
Constitutional law and international human rights law make it implicit
on Zimbabwe to conduct regular and genuine elections. Everyone is
entitled to take part in the government of his country either directly
or through freely chosen representatives, without distinction on
any grounds. The war of liberation struggle in Zimbabwe was fought
as a result of the need to have equal suffrage and for that we have
to acknowledge the role of the freedom fighters but are we going
to be eternally grateful if the rate wt which we attained those
rights is being superceded by the desire and thrust to undermine
them? When people say they fought for majority rule in essence,
they are saying they fought to attain and participate in free and
fair elections inter alia.
Since independence our government has kept us in a perpetual state
of fear-kept us in a continuous stampede of patriotic fervor- with
the cry of grave threat to sovereignty and independence, always
there has been some terrible evil at home or some monstrous foreign
powers that intends to gobble us. The relationship of such paranoia
to elections is obvious as evidenced by the laws, which have been
enacted since the last major election or referendum and lately attempts
to level the electoral field by passing of the Zimbabwe Electoral
Commission Act and the Electoral Act.
The role of the media in elections can never be underestimated for
the media is a tool for influencing opinions and positive change
in every democracy. The free practice of the profession of journalism
and is an issue of concern with regards to the coming elections.
Freedom of expression constitutes one of the essential foundations
of a democratic society, one of the basic conditions for its progress
and for each individual's self-fulfillment. The democratic process
and the development of every human being are options, for which
the protection of freedom of expression is essential.
Principles for conducting elections
Principles for conducting democratic elections include that any
election shall allow full participation of the citizens in the political
process, inclusiveness, intra-party democratic culture, political
party institutional development, freedom of association, political
tolerance, regular intervals for elections as provided for by the
respective national constitutions, equal opportunity for all political
parties to access the state media, equal opportunity to exercise
the right to vote and voted for, independence of the judiciary and
impartiality of the electoral institutions and voter education.
These democratic principles are internationally accepted and locally
recognised and thus should be respected, promoted, enforced and
fulfilled.
Zimbabwe Electoral Commission Act
The Act which creates the Zimbabwe Electoral Commission whose mandate
in terms of section 4 of the Act is to prepare for and conduct the
elections for the office of the President, Parliament, local authorities
and referendums, and to ensure that those elections and referendums
are conducted efficiently, freely, fairly and transparently and
in accordance with the law, to direct and control the registration
of voters by the authority charged with that responsibility under
an Act of Parliament, to compile voters' roll and registers and
to ensure the proper custody and maintenance of voters' rolls and
registers and to design print ballot papers, to conduct voter education,
to give instructions to the Registrar General in exercise of his
functions, to keep public informed about the delimitation of constituencies,
location of polling stations among other functions as may be directed
or imposed in terms of the Electoral Act.
Zimbabwe Electoral Commission
The appointment of members of the Zimbabwe Electoral Commission
lies in the domain of the office of the President and the Judicial
Service Commission. Many recommendations were made by the civil
society headed by ZESN but these seem to have yielded no results.
Some of the recommendations were that 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, or 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, or 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. Reasons for
such varied from the need to have an inclusive and representative
commission. In light of the current state of the appointment of
members of the Commission, some key sectors of society and opposition
parties still question the degree of independence of the Commission.
Voter Education
Voter education, which has been defined by the Act to mean any course
or electoral law and procedure aimed at voters generally and not
offered as part of a course in civics, or other subject for students
at an educational institution will be a exclusive mandate and prerogative
of the Commission and political parties. The restrictions, which
are imposed on other entities to provide voter educational, are
wide and far from the constitutional mark. For one to be allowed
to conduct voter education you will have to be citizens or residents
of Zimbabwe, or associations consisting wholly of citizens or residents;
the courses of instruction has to be approved by the Commission;
organisations or individuals involved in such voter education should
not receive foreign funding for such activities.
The Act makes specific reference to the NGO Act, which is not yet
in force as the regulating law for the registration of organisations
that intend to carry out voter education. Some of the provisions
of the NGO Act have been criticised for their obvious effect of
strangulation or asphyxiation of the civil society in Zimbabwe.
The definition of issues of governance to include the promotion
and protection of human rights, which in earnest can be deemed to
include voter education for it falls on issues of good governance
and human rights.
Section 13,14,15, and 16 of the Zimbabwe Electoral Commission Act
can be described as an affront to constitutionalism and democracy.
Such provisions beg the abundance or lack of wisdom on the part
of the government or the drafters.
Electoral Act
The Electoral Act Chapter 2:13 has as its preamble to provide for
the procedure and conditions of service of members if the Electoral
Supervisory Commission and its functions with respect to monitors
and observers, to provide for the duties of the Zimbabwe Electoral
Commission, towards the Electoral Supervisory Commission, to provide
the Registrar General of voters and for the lodging of objections
thereto, to provide the requirements of registration of voters among
others.
Section 3 of the Act stipulates the general principles of a democratic
election which is a reaffirmation of international standards of
the right of citizens to participate in governance issues through
freely chosen representatives, without distinction on any grounds,
to join a political party of one's choice, to participate in peaceful
activities to influence and challenge policies of Government, to
participate in peaceful political activity intended to influence
the composition and policies of government. This is a laudable provision
for it attempts to regularize the general conduct of elections to
meet the recognised international democratic standards.
The further inclusion in the Act that all political parties shall
be to campaign freely within the law, operate freely within the
law, have reasonable access to the media is commendable. But the
reality on the ground is yet to establish the extent of adherence
of the same by the government. The recent gazetting of regulations
under the Broadcasting Services Act that will allow all political
parties access to the state controlled electronic media is commendable
but what remains to be seen is whether the same will be implemented
by the government though the Zimbabwe Broadcasting Holdings. There
is a need however to have reporting of a balanced nature, without
use of hate language, racial attacks which in the past has been
the style of reporting in the state media towards electoral periods.
Postal voting
Postal voting in elections in Zimbabwe has remained an exclusive
right for those who away form Zimbabwe as a member of the armed
forces, or a spouse to such a person, an electoral officer, this
provision is discriminatory to other citizens and nationals who
are outside the confines of Zimbabwe for various reasons. The government
has object to the fact that those in the Diaspora should vote and
called it unconstitutional for that matter.
Excluding Zimbabweans in the Diaspora from participating in the
political process clearly discriminates against them and I contend
that this is outlawed under Section 23 of the Constitution of Zimbabwe.
In addition to the protection against discrimination in the Constitution,
the government promulgates the Prevention of Discrimination Act
Chapter 8:16 which is a piece of legislation that prohibits discrimination
on a number of grounds, thus proving beyond doubt that the government
is indeed committed to non-discrimination.
The provisions of the Electoral Act must of necessity be interpreted
in such a way that all of the freedoms and protections that are
afforded Zimbabweans under international and constitutional human
rights law are fully protected and that this can be done by ensuring
that arrangements are made for Zimbabweans in the diaspora to vote
in general and presidential elections as and when they are held.
Countries in the SADC Such as Botswana and Mozambique have been
able to carry out such processes of allowing their citizens to participate
in the elections in their countries, no justifiable reason has been
given by the government to deny the diaspora the right to vote,
but they have consistently and persistently harassed them to use
the homelink scheme obviously they are contributing to the development
of Zimbabwe so why deny then a chance to have a say how their hard
earned money is used?
Electoral Court
Electoral disputes should be solved within a reasonable period of
time to allow citizens to be given a second chance to express themselves
if the court deems the elections a nullity. During the 2000 Parliamentary
elections a number of constituency results were contested. The President
had issued regulations the Electoral Act (Modification) No 3 SI
318/2000 which sought to legalise the outcome of the elections and
oust the jurisdiction of the courts in dealing with electoral petitions.
The opposition took the matter to the Supreme Court, which remarkably
ruled that
"the MDC had a civil right to partake on an election that was
free and fair and devoid of corrupt or illegal practices, to challenge
the result of an election which was claimed to be tainted by corrupt
and illegal practices and to seek practical and meaningful redress
in the form of a High Court order certifying that the results were
tainted. The notice effectively deprived them of that right. The
right of full and unimpeded access to courts is of cardinal importance
for the adjudication of justiciable disputes."
This decision was to say the least a "brutal full men"
or in ordinary parlance English an empty thunderous order for all
the election petitions were not solved and the judiciary passed
the buck onto the litigants themselves how astonishing? The Electoral
Court will not be spared of the troubles, which have haunted the
present judiciary, perception of dependence and partiality, administrative
delays and pitfalls will also beleaguer the court. There are no
provisions further the President cannot issue regulations in terms
of the Presidential Powers to legalize the outcome of the elections.
Broadcasting Services Act, Regulations
This act has created a monopoly of the airwaves, which has been
challenged in a number of court cases. The Electoral Act stipulates
that political parties shall have reasonable access to the media.
In response to the provisions and its welcome by many the Minister
on Information highlighted that it was not an actionable rights
that can be claimed…. without reference to the laws governing
the media in Zimbabwe . And further to that, newspapers have been
allowed through their editorial policies not to highlight materials
of political parties they don't feel like publishing. Under the
Act Section 2(1) of the Fifth Schedule "if during the election
period a broadcaster broadcasts election matter, the broadcaster
shall give reasonable and equal opportunities for the broadcasting
of election matter to all parties contesting the election".
The Act defines election time to be "thirty days before the
polling day for the elections and ends at the close of polling day
or the last day of polling. This provision should be repealed for
the fact that during ordinary times the ruling party has always
had access to the state controlled media and this can be interpreted
to mean that they having been campaigning since time immemorial
and the opposition will only be afforded access for a plus or minus
30 days. The issue which this provision raises is of freeing the
airwaves, whilst the state has contented that you can't have a country
that is perpetually on elections from January to December, this
view shows the narrowed view of the importance of freeing the airwaves
and reflection of the notion that the state still has to retain
the monopoly of the airwaves and determine what is newsworthy or
not newsworthy for Zimbabweans. To some an election is an event
while to some it's a process, which starts way before the actual
polling days and the Act has retained a limited, narrow, and shortsighted
definition of election time.
Other laws
There are laws, which might not be directly related to electoral
periods such as AIPPA, POSA, MOA but have a direct impart on the
enjoyment of rights related to participation of citizens such as
the right to freely assemble, express one' views. There a number
of rallies of the opposition, civil society demonstrations and events,
which were dispersed or disbanded under these acts and individuals
arrested, potential candidates for the coming elections and ordinary
party and civic activists. These laws if interpreted in light of
the elections can be deemed to be undermining the attempts to create
a fair playing field and platform for all the interested and contesting
parties.
*Otto Saki
is a Projects Lawyer, Zimbabwe Lawyers for Human Rights
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