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New electoral regulations - Bill Watch 22/2008
Veritas
May 31, 2008

New electoral regulations
[An important new provision is that the official counts from each polling station will not only be posted outside the polling station, but an official copy will be given to each election agent and observer]

SI 82A/2008 [Electoral (Amendment) Regulations (No. 5)] - gazetted in a Gazette Extraordinary on 27th May. [Electronic version available] The regulations, made by ZEC:-

• increase the accreditation fee for local observers from $10 million to $1 billion. Accreditation fees for foreign observers remain unchanged at USD100 for observers from Africa and USD300 for observers from outside Africa.
• replace forms V11 and V23 with new forms V11 [polling station return], V23A [Collation of Polling Station Returns and Postal Ballots] and V23B [Constituency Returns]. Unlike the old forms, the new forms provide for countersignature by candidates/election agents and "others" [e.g., observers] entitled to be present at vote-counting; ZEC has explained this as being in the interests of greater transparency and designed to minimise disputes at later stages [e.g., at the verification stage at the national collation centre]. The new form V11 also states that a copy of the completed form must be handed to each election agent and observer present, in addition to being posted outside the polling station.

Note: there is no provision for a copy of the completed forms V23A [Collation of Polling Station Returns and Postal Ballots] and V23B [Constituency Returns] to be given to election agents and observers. If ZEC’s purpose is to provide for greater transparency and to avoid disputes at final collation this omission should be rectified.

Update on presidential run-off and by-elections
Polling Day is Friday 27th June : The Presidential run-off election and the three by-elections will be held concurrently on this date.

By-election nominations: Nomination day for the three House of Assembly by-elections was yesterday Friday, 30th May. The following candidates will be contesting:

• Gwanda South: Orders Mlilo, ZANU-PF; Nephat Mdlongwa, MDC-T; Elizabeth Ndlovu, MDC.
• Pelandaba-Mpopoma: Sikhanyiso Duke Ndlovu, ZANU-PF; Samuel Sandla Khumalo, MDC-T; Dhumani Gwetu, MDC; Chamunorwa Mahachi, ZDP; Samuel Mahlamvana Ndlovu, UPP; Leonard Nkala, PUMA; J ob Sibanda, Ind; Fungai Mutukwa, Ind.
• Redcliff: Sheunesu Muza, ZANU-PF; Aaron Chinhara, MDC-T; Tapera Sengweni, MDC-T; Gilmond Karigambe, MDC.

Information from ZEC
Accreditation of observers and journalists: Accreditation of observers and journalists – international and local – will start on 2nd June at Bulawayo and Harare Polytechnics. Accreditation fees for local observers have been increased to $1 billion [see SI 82A/2008 above]

National Multi-Party Liaison Committee meeting: The National Multi-Party Liaison Committee had a closed meeting on 28th May – no statement was issued.

Number of Polling Stations: The number of polling stations may be reduced, following very low turn-outs at some polling stations in the poll of 29th March.

Training of election officials: ZEC conducted training workshops for provincial election officers this week. Training for constituency election officers will be carried out over the next two weeks.

Voting procedures
Reminder – voting is ward based

Voters have to go to the polling stations in the ward in which they are registered voters. The list of polling stations for each ward has not yet been published.

Postal voting for police, defense forces, prison service
Members of disciplined forces are not obliged by law to fill in ballot papers in the presence of their officers or to use forces channels to send in their votes. The Electoral Act specifies that they may [as a matter of their own convenience] use their own commissioned officers as competent witnesses and submit their postal vote applications and ballot papers to the electoral authorities via their commanding officers, but they do not have to go this route. It would be legally in order under the Electoral Act for them to make use of any other competent witness and to submit their applications and ballot papers to the electoral authorities by registered post. The list of competent witnesses includes hospital matrons, Government mining engineers and inspectors of mines, chartered accountants, postmasters, legal practitioners, magistrates, bank managers, commissioners of oaths, medical practitioners and veterinary surgeons.

Challenge to existing voting procedures for illiterate or physically incapacitated voters
Amended sections 59 and 60 of the Electoral Act state that if an illiterate or physically incapacitated voter requires assistance in voting, that assistance will be provided by the polling station presiding officer in the presence of two other electoral officers or ZEC employees and a police officer on duty. A group of visually impaired prospective voters has challenged the constitutionality of these provisions, claiming the right to be assisted by persons of their choice [see under Election-Related Court Cases, below].

Update on council election results
The results for Midlands have not yet been published in the press. Results for all other provinces have been published. Publication is for public information only, not a condition precedent to councillors taking office.

Status of councils
The new councils have not met or commenced operating, although successful candidates were declared duly elected two months ago. Press reports this week say this is because the Minister of Local Government has adopted the attitude that the councils, like Parliament, cannot meet or exercise their functions until the winner of the Presidential run-off election has been declared and sworn in. This attitude is legally questionable. While the Constitution expressly states in section 63(4) that the life of the new Parliament is deemed to commence when the President is sworn in, there is no similar provision for councils in either the Constitution or the Urban Councils Act or Rural District Councils Act.

The same press reports state that the Minister has appointed "commissions" to run the affairs of major local authorities until the elected councils are able to take over. [Note: the law no longer provides for the appointment of "commissioners" to run the affairs of councils left without functioning councillors; the term now used in section 80 of the amended Urban Councils Act, is "caretakers". The appointment of caretakers is permitted when elected councillors are "unable to exercise all or some of their functions as councillors".] Legal action challenging the Minister's position is being planned by at least one residents' association.

Election related court cases

MP-elect takes court case to keep army out of his constituency
Alleging an army terror campaign in his constituency, Advocate Matinenga, MP for Buhera West House of Assembly constituency, was granted a provisional order in the High Court by Mr Justice Bhunu ordering the Commander of the Defence Forces to put in place "immediate measures to ensure that the army officers seconded to rural areas, particularly Buhera West, confine their operations within their constitutional duties in terms of section 96(1) of the Constitution". The provisional order, granted on 23rd May, lasts for 10 days from its service on the Commander and calls on him to show cause why the court should not make a final order in the following terms: "the deployment of the Zimbabwe Defence Forces in rural areas, particularly in Buhera West, for any purpose other than that provided for by the Constitution of Zimbabwe as read with the Defence Act be stopped forthwith". [Note: Section 96(1) of the Constitution states that the Defense Forces are established "for the purpose of defending Zimbabwe".]

Challenge to Official/Police involvement in voting arrangements for disabled
Six visually impaired prospective voters have lodged a Supreme Court application challenging the constitutionality of section 60 of the Electoral Act, which requires them to be assisted by electoral officials and a police officer when casting their votes. They claim that this provision discriminates against them by reason of their physical disability, and is therefore inconsistent with section 23 [Non-discrimination section] of the Constitution; they wish instead to be assisted by spouses, friends or relatives who know their political preferences. [Note: In South Africa, a disabled voter can opt to be assisted by a friend or other person of his or her choice.]

Case by disallowed presidential candidates
Judgement is still awaited. In this case against ZEC, the applicants Chiota and Shumba claim their nomination papers for the Presidential election of 29th March were wrongly rejected and seek a re-run of the entire Presidential election with themselves included as candidates. [For more detail see Bill Watch 21.]

Case to bring Presidential election date forward
In this case, also lodged in the Supreme Court, Jonathan Moyo MP challenges ZEC's fixing of the date for the Presidential run-off election, arguing that that the President, not ZEC, should have fixed the date, and seeking an order directing the President to fix a date not later than the 14th June for the run-off. The case has not yet been heard.

Election petitions
22 of the 105 petitions [53 brought by Zanu PF and 52 by MDC T] have been set down for preliminary hearings. There will be oral argument in 9 of the cases next week, on the 4th and 5th June in the High Court.

Update on bills and acts
There are no new Bills or new Acts. Statutory Instrument 84/2008, gazetted 30th May, will bring into force an Act passed some years ago – the Securities Act [Act No.17 of 2004]. It will come into force on 1st June. The Act establishes a Securities Commission, and provides for the regulation and control of the marketing of securities and the regulation and registration of securities exchanges. The term "security" covers more than stocks and shares; it includes depositary receipts, futures and contracts for differences. The Act repeals the Zimbabwe Stock Exchange Act, but states that the Zimbabwe Stock Exchange will continue in existence as a registered securities exchange under its present rules.

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