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Constitutional Commissions - Bill Watch 14/2010
April 01, 2010
Electoral Commission [ZEC]
Electoral Commission was sworn in on Wednesday 31st March at State
Justice Simpson Mtambanengwe; Vice-Chairperson: Joyce Kazembe; 7
Other Members: Daniel Chigaru, Geoff Feltoe, Theophilus Gambe, Petty
Makoni, Sibongile Ndhlovu, Bessie Nhandara, Mukuni Nyathi.
main responsibility under section 100C of the Constitution is to
“prepare for, conduct and supervise” Presidential, Parliamentary
and local authority elections and referendums, and to ensure that
they “are conducted efficiently, freely, fairly, transparently
and in accordance with the law”. In addition ZEC is responsible
the registration of voters by the authority [i.e. the Registrar
General] charged with that responsibility under the Electoral
voters’ rolls and registers and ensuring their proper custody
and maintenance [ZEC must compile the rolls from data collected
and recorded by the Registrar-General, a curious and unhappy division
printing and distributing ballot papers, approving the form of
and procuring ballot boxes, and establishing and operating polling
constituencies and wards
- giving instructions
to State and local authority employees for the purpose of ensuring
efficient, proper, free and fair conduct of elections and referendums
any other function assigned to it under the Electoral Act or any
of these Functions and Powers
of voters: The Registrar-General and his officers remain
responsible for registering voters and although in terms of section
18 of the Electoral
Act the Registrar-General should be subject to the ZEC directions
in this matter, there are no provisions to ensure his compliance.
[He is a public servant in the Ministry of Home Affairs, not a ZEC
employee, and has always exercised a considerable measure of independence.]
voters’ rolls: Under section 24 of the Electoral
Act, constituency registrars enter voters’ names on the appropriate
roll as soon as the voters have been registered. The registration
of voters and the compilation of the rolls is therefore a single
process, and is conducted by constituency registrars who are under
the control of the Registrar-General. ZEC itself is not directly
involved in compiling the rolls and the only way it can influence
the process is by giving directives to the Registrar-General and
it may be difficult to ensure his timely compliance [see above].
constituencies and wards: This process is largely under
ZEC’s control, but its control is not absolute. Delimitation
must precede a general election, so the timing depends on the President‘s
decision to call elections, and previous delimitations have always
been rushed, with ZEC’s predecessors relying on the Registrar-General’s
often inaccurate information about the numbers of voters living
in each area and with insufficient time for public input.
voter education: This is spelt out in Part IV of the Zimbabwe
Electoral Commission Act, which gives ZEC a virtual monopoly
of voter education, ZEC itself has an obligation to provide voter
education, and anyone other than a political party who wants to
provide voter education must get ZEC’s approval. But, who
ZEC can approve is limited by the Act, they can only approve local
organisations registered under the PVO
Act and these may not use foreigners to give instruction. Any
foreign funding for voter education whether by ZEC itself or by
local ZEC-approved organisations has to go through ZEC, but such
funding is subject to Ministerial approval.
election observers: Although the Constitution gives ZEC
the function of accrediting election observers, it must do this
in accordance with section 6 of the Electoral Act, which vests accreditation
in an Observers’ Accreditation Committee consisting of equal
numbers of commissioners and nominees of Ministers and the Office
of President and Cabinet, with the Minister of Justice, who is currently
responsible for the Electoral Act, and the Minister of Foreign Affairs
having a veto over their accreditation.
of State and local authority employees: The power to give
instructions is not backed up by effective machinery to ensure compliance.
functions: Under the ZEC Act, the Commission has the power
to make regulations – but the regulations have to be approved
by the Minister of Justice. For example, any regulations it makes
for political party access to public broadcasting media during election
campaigns have to be approved by the Minister, currently Minister
Chinamasa. ZEC must also monitor media conduct generally during
campaigning; but in the past has not had sufficient resources to
conduct meaningful monitoring and the resources come from the Ministry
unless ZEC gets donations, but these also require Ministerial approval.
of Electoral Act to Minister of Justice
In the recent
gazetting of Ministerial functions the President surprisingly allocated
the administration of the Electoral Act and the Zimbabwe Electoral
Commission Act to the Ministry of Justice and Legal Affairs, rather
than the new Ministry of Constitutional and Parliamentary Affairs.
ZEC requires the Minister’s approval for making regulations,
borrowing money and accepting donations.
up ZEC: A Long Drawn-out Process
The new ZEC
was established by Constitution
Amendment No. 19 in February 2009. In August 2009 Parliament
interviewed candidates and submitted its list of nominees, from
which the President had to appoint 8 members. The selected members
were only announced on 21st December, the interval having been used
to reach a party-political compromise on membership. The chairperson
was appointed by the President after consultation with the Judicial
Service Commission and Parliament. The President also appointed
the vice-chairperson in term of the ZEC Act from the 8 members.
Under the GPA
he was obliged to get the agreement of the Prime-Minister for these
Status under Electoral Laws
Electoral Commission [ZEC] has been through several metamorphoses.
It was originally established by the Zimbabwe Electoral Commission
Act of 2004. It was then re-established as a constitutional body
in 2005, by Constitutional
Amendment No. 17 which inserted a new section 61 in the Constitution
establishing ZEC and setting out its functions. The problem is that
there was no provision stating that the new ZEC was a reincarnation
of its predecessor, or that commissioners and staff should continue
to hold their offices. Despite this, in fact it was tacitly accepted
that ZEC continued as it was in 2005 and staff continued in office
and new commissioners were not appointed till 2006.
2009 Constitution Amendment No. 19 replaced section 61 with a new
section 100B establishing a new ZEC and once again setting out its
functions. There was nothing in the provisions to indicate this
was a continuation of the 2005 ZEC – in fact there were significant
differences between the old ZEC and the new one in regard to composition
and method of appointment of members. Until the new ZEC was appointed
yesterday, there was no legal ZEC in existence to employ and pay
staff. This issue may cause difficulties for the new ZEC:-
- If staff
have continued in office, the new ZEC may be caught in a dilemma
– they may want to start as “new brooms” and
appoint their own staff, but at the same time have to solve the
staffing and remuneration questions that have been let slide.
- Again, as
the old ZEC was abolished in February 2009 when Constitution Amendment
No. 19 was enacted, the commissioners ceased to hold office then
and should not have been entitled to any remuneration or benefits
done after February 2009 by the old ZEC could be considered to
have no legal validity. This may cast doubt on the Commission’s
report on the 2008 elections, which was not presented to Parliament
till May 2009.
the new ZEC be able to ensure free and fair elections in Zimbabwe?
no. Although ZEC is responsible for conducting elections, there
are impediments, both legal and institutional, which seriously limit
the Commission’s power to ensure that elections are free and
fair. Some of these have been dealt with above, but there are more:
- ZEC cannot
control the timing of elections. General elections are called
by the President with the agreement of the Prime Minister [GPA,
Article 20.1.3(q)], while parliamentary by-elections have to be
called within 14 days after the President is notified of a vacancy
in Parliament [Electoral Act, section 39]. This means that ZEC
usually has only a short time within which to plan and organise
- There is
no easy and quick way to restore credibility to the voters’
rolls. ZEC cannot order a new registration of voters, there is
no provision for it in the present Electoral Act. Without accurate
voters’ rolls it is impossible to delimit electoral boundaries,
and any election conducted on the basis of defective rolls is
open to suspicions of rigging.
- ZEC does
not have sufficient staff to conduct elections itself and must
rely on civil servants assigned to it by the Public Service Commission,
the Health Service Board and local authorities under section 17
of the Electoral Act. This is inevitable, because obviously ZEC
shouldn’t have to engage large numbers of employees to be
kept on standby pending the calling of an election, but there
is a danger that some sections of the Public Service are thoroughly
- ZEC cannot
control the electoral environment, i.e. the general atmosphere
in which an election is conducted. If there is widespread intimidation
or violence in the run-up to an election, there is little that
ZEC can do to stop it, for that it has to rely on the Police and
Defence Forces, whose conduct in previous elections has been widely
criticised as party-politically partisan.
- While ZEC
has far-reaching powers to make regulations for the conduct of
elections, its power to do so is subject to approval by the Minister
responsible for the Electoral Act, currently the Minister of Justice.
In this important respect, therefore, ZEC is not independent.
- While ZEC
must ensure that elections and referendums are conducted transparently,
there is no legal requirement that the Commission itself must
act in a transparent manner. This is not a fatal defect in itself,
but if ZEC’s decision-making processes are not completely
open there may be suspicions that ZEC is being subjected to political
2010 Budget allocates an amount of US$ 4 175 000 for ZEC operations
for the whole of 2010, under Vote 21: Ministry of Justice
and Legal Affairs. The breakdown of the allocation, how the funds
will be spent, is not set out. Donations or grants from local or
foreign sources may be accepted, but only with the consent of the
Minister of Justice and Legal Affairs.
makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
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