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Electoral legislation - An Overview Zimbabwe 2005
Otto Saki, Zimbabwe Lawyers for Human Rights (ZLHR)
July 11, 2005

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

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the freedom fighters but are we going to be eternally grateful if the rate wt which we attained those rights is being superceded by the desire and thrust to undermine them?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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