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Electoral Amendment Bill - Part I - Bill Watch 37/2011
Veritas
September 13, 2011
Read Part
II
Electoral
Amendment Bill [Part I]
The Bill is
the culmination of lengthy negotiations between the three parties
to the GPA
and is a compromise between their differing views on amendments
needed to the Electoral
Act. Because it is a compromise it is likely to satisfy no one.
Some may feel it does not go far enough to ensure free and fair
elections, while others may fear it will prevent them using the
robust methods of persuasion that have become normal in Zimbabwe.
The following
are the main changes the Bill will make to the Electoral Act:
- Polling stations
will become the basis of the electoral process. Voters’
rolls will be compiled for each polling station and voters will
be compelled to vote at the polling station on whose roll they
are registered.
- It will be
possible to prepare new voters’ rolls by carrying out a
complete re-registration of voters.
- Copies of
voters’ rolls will be more readily available.
- Police officers
will no longer be stationed inside polling stations.
- Disabled
and illiterate voters will be able to choose who they want to
assist them in casting their votes.
- Postal voting
will be restricted to State employees who are outside the country.
- Electoral
officers and members of the security forces who are employed on
electoral duties will be allowed to cast their votes before polling
day, at special polling stations.
- The procedures
for counting and collating votes will be made more transparent,
and time-limits will be specified for the announcement of results
of presidential elections.
- Committees
will be set up to minimise violence and intimidation during elections.
- The powers
of the Electoral Court will be extended.
- The provisions
of the Zimbabwe Electoral
Commission Act will be incorporated into the Electoral Act.
We shall deal
with each of these points in turn.
Polling-station
Based Elections
Voters’
rolls are currently drawn up for wards or constituencies, and voters
are able to cast their votes at any polling station within the ward
or constituency on whose roll they are registered. Clause 42 of
the Bill will change this. The Zimbabwe Electoral Commission (ZEC)
will fix the number of polling stations for each ward and constituency
and the area to be served by each polling station. It will then
prepare a voters’ roll for that area, and voters registered
on the roll will have to cast their votes at that polling station
unless they are entitled to a postal vote or a special vote (as
to which, see below).
The change from
constituency-based voters’ rolls to polling-station based
rolls will not take place immediately, but only after ZEC has compiled
the rolls for all polling stations throughout the country.
Evaluation
of Proposed Amendment
It is understood
that this amendment was put forward by representatives of the two
MDC formations. Whoever proposed it, it is likely to do at least
as much harm as good. On the positive side it will help to curtail
double-voting because it will be impossible for anyone to vote at
two or more polling-stations, which they can do at present; and
the bussing-in of voters will not be so easy since the voters rolls
will be much more localised. On the other hand the amendment will
probably make intimidation more effective, because if voters are
faced with intimidation at any one polling station they will not
be able to go elsewhere to cast their votes. For the same reason
pre-election displacement of voters - i.e. chasing one’s political
opponents out of the area before polling day - and threats of post-election
retribution will also be more effective. Furthermore, the amendment
is unlikely to improve the efficiency of the electoral process.
Currently voters’ rolls are based on wards, which are administrative
units whose boundaries are recognised to some extent by the people
who live in them. The new rolls, on the other hand, will cover arbitrary
areas determined by ZEC and there is likely to be a great deal of
confusion amongst voters, at least initially, as to where they can
vote.
Re-registration
of Voters
The Bill will
insert a new section 36A into the Electoral Act allowing [but not
obliging] the President, on the advice of ZEC, to order a new registration
of voters, either countrywide or in specified wards and constituencies.
The old voters’ rolls will be replaced by new ones, and anyone
who wants to be registered on a new roll will have to apply to the
appropriate constituency registrar. People who were registered on
an old roll will be entitled to re-registration simply by producing
proof of their identity.
Evaluation
of Proposed Amendment
Scrapping the
existing voters’ rolls and registering voters afresh is probably
the only way for Zimbabwe to get an accurate voters’ register,
and for that reason the proposed amendment must be welcomed. Nonetheless,
it has some drawbacks. Members of the Zimbabwean Diaspora, many
of whom are still registered voters, will not be able to re-register
and so will lose their votes. Similarly, people who are hospitalised
or disabled or for any other reason are unable to get to a constituency
registrar’s office to re-register may be disenfranchised before
the next elections. So while the rolls will be cleared of the names
of dead voters, they may exclude the names of many people who should
be on them.
Provision
of Copies of Voters’ Rolls
In previous
elections there have been legitimate complaints from political parties
that they were unable to obtain copies of the voters’ rolls,
and that any copies they were given were in such a form that they
could not be analysed electronically. Clauses 5 and 6 of the Bill
will require ZEC to keep copies of the rolls in printed and in electronic
form, and to provide anyone who asks for it with a copy in whichever
form, printed or electronic, that the person may specify. If the
roll is provided in electronic form it must be capable of being
searched and analysed.
Evaluation
of Proposed Amendment
This amendment,
if it is implemented, will go some way to allay the suspicions that
have been aroused in non-ZANU-PF political circles, that the names
of deceased persons have been deliberately kept on the voters’
rolls so that their “votes” can be used to inflate support
for ZANU-PF. Whether the amendment will in fact be implemented is
doubtful, however, since responsibility for preparing voters’
rolls remains with the Registrar-General, and he may not be willing
to provide ZEC with copies of the rolls for ZEC to issue to members
of the public in accordance with the amendment.
Exclusion
of Police Officers from Polling Stations
Under clause
18 of the Bill, police officers will no longer be stationed inside
polling stations. Instead they will be stationed in the immediate
vicinity of polling stations, and will be allowed to enter polling
stations only to cast their votes or help in preserving order.
Evaluation
of Proposed Amendment
There have been
complaints that the presence of police officers inside polling stations
has an intimidatory effect on voters. Whatever the justification
for these complaints, this amendment will remove it.
Illiterate
and Disabled Voters
Under sections
59 and 60 of the Electoral Act, illiterate, blind and disabled voters
who find it difficult or impossible to mark their ballot-papers
themselves, may be assisted by electoral officers in the presence
of at least one police officer. The Bill will replace these sections
with a new one that will allow such voters to be assisted by persons
of their choice.
Evaluation
of Proposed Amendment
This is a beneficial
amendment which may help to prevent abuses that have allegedly occurred
in rural areas. It will be effective, however, only if illiterate,
blind and disabled voters are informed of their right to choose
a person to assist them in voting.
Postal
Voting and Special Voting
Under the Electoral
Act at present, postal voting is restricted to:
- Government
employees such as staff of diplomatic missions, who are stationed
outside Zimbabwe;
- Electoral
officials who will be on election duty outside their constituencies;
- Members
of the police and defence forces who are required for election
duty; and
- Spouses of
these people (though it is unlikely that electoral officers and
members of the police and defence forces would bring their spouses
with them on election duty).
The Bill will
allow postal votes only to Government employees stationed outside
Zimbabwe. Electoral officials and security force personnel who will
be away from their constituencies on polling day in an election
will be allowed to cast their votes two to three weeks before polling
day, at special polling stations established in each district. Candidates’
election agents and accredited observers will be entitled to be
present at these special polling stations and to monitor voting
procedures there.
Evaluation
of Proposed Amendment
In past elections
there have been widespread suspicions that postal votes cast by
members of the security forces were not cast freely, that members
of the forces were ordered by their superiors to vote for a particular
person or party and were monitored to ensure they complied with
the order. By requiring security-force personnel to vote at polling
stations under the scrutiny of election agents and monitors, this
malpractice will be eliminated.
On the other
hand, the amendment will not extend the classes of voters who are
allowed to vote without going to a polling station on polling day.
As before, only government employees will be allowed to do so. No
provision is made in the Bill for voting by members of the Diaspora,
or by disabled people or by people detained in hospitals or prisons
who cannot get to a polling station (and here it should be noted
that prisoners are entitled to vote in elections unless they are
serving sentences of six months or more). The Bill, in other words,
ignores the rights of many people who are entitled to vote in elections.
The procedure
for special voting, moreover, will be complex and time-consuming.
Voters will be required to place their ballot-papers into envelopes
marked to show their constituency and ward, and then to put the
envelopes into a special ballot-box. This box will be opened and
the envelopes containing the ballot-papers sent to ZEC’s Chief
Elections Officer at the national command centre. The Chief Elections
Officer will then sort them and send them back to the appropriate
provincial elections officers, who in turn will distribute them
to the appropriate district elections officers, who will distribute
them to the ward elections officers. There at ward level the votes
will finally be counted on election day. Whether all this sorting
and distributing can be done in the time available remains to be
seen. If it can’t, the votes will be wasted.
Counting
and Collation of Votes and Announcement of Results
The Bill will
make the process of counting and collating votes a bit more transparent.
At each stage of the process, political parties as well as candidates
and their polling agents will be given copies of the returns (i.e.
the voting records), and after the returns have been collated at
constituency level the constituency returns will be posted up outside
the constituency centres (at present returns are posted up only
outside polling stations, and parties and candidates are not given
copies).
Evaluation
of Proposed Amendment
These amendments
should make it easier for interested parties to spot discrepancies
in returns. The effectiveness of the amendments will depend on how
quickly parties and candidates are given copies of the returns (the
amendments state in various places that it must be done “without
delay”, “as soon as possible” and “forthwith”),
because parties will have only 48 hours after the announcement of
results within which to request a recount of votes [see below].
Measures
to Combat Violence and Intimidation
The Bill will
insert a new Part XVIIIB into the Electoral Act, which will require
the Commissioner-General of Police to appoint a special police liaison
officer for each province who will be tasked with “the expeditious
investigation” of cases of politically-motivated violence
or intimidation in the province during election periods. Each liaison
officer will be under the direction of a special investigation committee
chaired by a member or employee of the Zimbabwe Human Rights Commission.
In addition, the Commissioner-General of Police will have to establish
special police units to investigate cases of political violence
and intimidation, the Judicial Service Commission will have to designate
magistrates to try such cases quickly, and the Attorney-General
will have to provide sufficient “competent” prosecutors
to prosecute the cases.
The courts will
also be given power to impose additional penalties for political
violence or intimidation. Magistrates will be able to prohibit convicted
persons from addressing meetings or otherwise taking part in an
election, and the High Court will be able to prohibit such persons
from voting or holding public office for up to five years.
Finally, office-bearers
of political parties as well as candidates and their agents will
be enjoined to take all appropriate measures to prevent political
violence and intimidation and, if ZEC calls on them to do so, will
have to give a public undertaking to abide by the prescribed code
of conduct for parties and candidates.
Evaluation
of Proposed Amendment
The effectiveness
of these amendments will depend entirely on how diligent the special
police units are in cracking down on political violence and intimidation,
and on how effectively such cases are dealt with by the courts.
No sanction is laid down for those who fail or refuse to comply
with these obligations. Electoral violence will diminish only if
activists in all parties are made to understand that if they break
the law they will be prosecuted and punished. Furthermore no time
period is laid down for the establishment of the special investigation
committees. It is questionable moreover whether the Human Rights
Commission should be involved as part of the process rather than
as a monitor.
Extension
of the Power of the Electoral Court
Clause 35 of
the Bill will extend the jurisdiction (i.e. the power) of the Electoral
Court, so that it will be able to review (i.e. determine the legality
of) decisions made under the Electoral Act, including decisions
made by ZEC. No other court will be allowed to exercise this power.
The Electoral Court will generally have the same powers as the High
Court and its decisions will be enforceable in the same way as those
of the High Court.
Evaluation
of Amendment
So far as it
goes, the amendment is welcome. The Electoral Court has very limited
jurisdiction at present, and it has never been clear to what extent
the High Court can deal with electoral matters. Simply amending
the Electoral Act, however, is not enough. The procedure for hearing
election petitions is slow and complex, and it will remain so until
new rules are made under section 165 of the Electoral Act to simplify
the process.
[To be continued
- Part
II will cover the incorporation of the Zimbabwe Electoral Commission
Act and highlight important omissions in the Bill.]
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