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Electoral Amendment Bill -Part II - Bill Watch 38/2011
Veritas
September 13, 2011

Read Part I

Electoral Amendment Bill [Part II]

In Part I the changes made by the Electoral Amendment Bill to the Electoral Act were summarised and evaluated. This Part deals with the provisions of the Bill that incorporate the Zimbabwe Electoral Commission Act so that one Act will regulate both how elections are run and also the body responsible for running them – the Zimbabwe Electoral Commission [ZEC]. Finally there is an overall evaluation of the Bill drawing particular attention to the omission of provisions which would have made it a more satisfactory piece of legislation.

Incorporation of the ZEC Act into the Electoral Act

The Bill will incorporate the Zimbabwe Electoral Commission Act into the Electoral Act and will repeal the former Act. The provisions taken from the ZEC Act will deal with: the functions of ZEC and its staff and procedures; with voter education; with the accreditation of election observers; and with the conduct of media during elections. These provisions have not been substantially changed.

Evaluation of Amendment

It will undoubtedly be convenient to have the ZEC Act and the Electoral Act combined into a single piece of legislation, but it is a great pity to say the least that the opportunity was not taken to improve the provisions of the former Act when inserting them into the latter. For example:

• Voter education will continue to be subjected to stifling control. No one apart from ZEC and its agents and political parties will be allowed to provide voter education unless:
• everyone involved in its provision is a Zimbabwean citizen or permanent resident;
• the programme of education is supplied or approved by ZEC; and
• any foreign funding for the programme is channelled through ZEC.

These restrictions are excessive. All that is needed is a provision giving ZEC power to prevent or stop the dissemination of misleading or biased information to voters.

• The accreditation of election observers will continue to be tightly controlled by the government. Applications for accreditation will be channelled through a committee half of whose members will be government appointees [one nominated by the Office of the President and Cabinet]. ZEC will have only 48 hours to dispute the committee’s recommendations on who should be accredited, after which the recommendations will bind ZEC. ZEC will have no independent power to accredit observers.

Adequate numbers of independent observers are an important safeguard against electoral malpractices. If the Bill is enacted in its present form, there may be no independent observers in future elections.

• Observers must all report personally to the accreditation committee, which necessarily reduces their numbers and strains the resources of the organisations that sponsor them. Furthermore, they are accredited for the period of an election, which means their accreditation lasts from the calling of the election until the announcement of the result. Hence they have no right to observe the electoral processes that take place before an election is called: voter registration, for example.
• The new Part dealing with the conduct of the media during elections suffers from at least two defects:
• The section that requires news media to treat political parties and candidates fairly and to refrain from “hate speech” applies only during an election period, that is from the calling of the election until the declaration of the result. Before and after that period, the media can be as unfair and vituperative as they like.
• No sanctions can be imposed against media organisations that flout the requirements of the Part. All that ZEC can do is to report contraventions to Parliament after the election has been held.

Evaluation of Bill Highlighting Omissions

The amendments that will be made by the Bill are mostly beneficial, so far as they go, but they do not address the most serious deficiencies in the Electoral Act. In themselves, the amendments will not be enough to ensure free and fair elections.

Some of the matters that are not addressed by the Bill are the following:

• No provision for voting by the Diaspora and other absent voters

This is probably the most glaring omission in the Bill. The only people who will be able to vote outside their constituencies are Government employees and election officers. The rights of registered voters who are living outside the country, and of students studying both outside and in the country, and of voters who are detained in hospital or who for some other reason are unable to reach a polling station, are completely ignored - and their right to vote is guaranteed by section 23A of the Constitution.

• No attempt to increase the effectiveness, independence and transparency of ZEC

As already noted, the Bill incorporates provisions from the Zimbabwe Electoral Commission Act into the Electoral Act virtually without change. The opportunity should have been taken to do the following:

• To increase the powers of ZEC, for example by requiring it to provide general civic education to Zimbabweans. Voter education is inadequate if voters are not informed about the role of Parliament, the functions of the President and (in relation to local authority elections), the importance of urban and rural district councils.
• To increase the independence of ZEC by removing at least two provisions which seriously compromise its independence, namely:
• section 11(5) of the Zimbabwe Electoral Commission Act, which prohibits ZEC from dismissing its Chief Electoral Officer without the permission of the Minister of Justice;
• section 192(6) of the Electoral Act, which prevents ZEC from enacting regulations without the approval of the same Minister.
• To increase the transparency of ZEC’s internal procedures, for example by opening its meetings at least partially to the public and requiring ZEC to publish minutes of its meetings. All ZEC’s activities are of vital public interest, and very few of them can justifiably be kept secret.

In one way the Bill will reduce the transparency of the electoral process. It will insert a new section 66A into the Electoral Act making it a criminal offence for members of political parties to “purport to declare and announce” the result of an election before it has been officially declared, or for anyone else to purport to declare the results officially [whatever that means]. So although everyone, parties and public alike, will be allowed to see the official results at all stages of the counting and collation process, anyone who dares to say out loud what those results mean - that Mr X or Mrs Y has won the election - will risk prosecution and up to six months’ imprisonment.

The Bill maintains unsatisfactory restrictions on election observers

There are still excessive ministerial restrictions on the accreditation of observers, and the period of official observation has not been extended to cover the run up to elections when in the past there has been most election related violence.

The provisions for voter education are still unsatisfactory

The controls over voter education are excessive and liable to discourage other organisations from trying to inform voters of the issues at stake in an election.

The Registrar-General will continue to prepare voters’ rolls

Voters’ rolls will continue to be compiled by constituency registrars who carry out their functions under the general supervision and direction of the Registrar-General of Voters. Although the Registrar-General is himself under the direction and control of ZEC, the Commission has no direct control over what is done by the constituency registrars, and has no way to ensure that its instructions to the Registrar-General are being carried out by his registrars.

The Chief Elections Officer will continue to be the returning officer for presidential elections

Under section 110 of the Electoral Act the Chief Elections Officer has the function of announcing the results of presidential elections. It is undesirable, however, for the Chief Elections Officer to exercise this function. Presidential elections are by far the most important in Zimbabwe and will remain so for as long as we have an executive President; the results are so sensitive that their announcement should have the authority of the entire Commission behind them, and they should be announced by the chairperson of ZEC, after a meeting attended by a quorum of commissioners has authorised him or her to do so.

Postal ballot-papers will continue to be identifiable

At present, voters who vote by post have to sign a declaration of identity before a competent witness; the ballot-paper is then sent to the constituency elections officer, enclosed in an envelope, together with the declaration of identity, making it possible for voters to be identified through their declarations of identity. The Bill will abolish declarations of identity but instead it will require the names of the voters to be written on the backs of the envelopes in which their postal ballot-papers are enclosed. This in fact would make it easier for postal voters to be identified.

No time-table within which parliamentary elections results must be announced

The Bill lays down a five-day time-limit within which the results of presidential elections must be announced, but specifies no time-limit for parliamentary or local authority elections. In the 2008 parliamentary elections the results were announced by ZEC [not by constituency registrars, as they were supposed to be] and were only announced after delays which gave rise to widespread suspicions of rigging. To avoid such suspicions in future the Act should lay down a time-limit, perhaps of five days in line with presidential elections.

Final Point

In conclusion, it should be noted that this Bill does not represent the last word in amendments to the Electoral Act. If the next election is held after the new constitution has been adopted, the Electoral Act will probably have to be changed to bring it in line with the new constitution. For example if the new constitution provides for elections by proportional representation the Electoral Act will have to be modified very considerably. Perhaps if the Bill has to be redrafted the opportunity may be taken to remove some of the drafting errors – unclear phrases which give rise to ambiguity. The electoral law is so important that absolute clarity is essential.

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