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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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