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Electoral Amendment Bill -Part II - Bill Watch 38/2011
September 13, 2011
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.
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.
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:
involved in its provision is a Zimbabwean citizen or permanent
- the programme
of education is supplied or approved by ZEC; and
- any foreign
funding for the programme is channelled through ZEC.
are excessive. All that is needed is a provision giving ZEC power
to prevent or stop the dissemination of misleading or biased information
- 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.
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.
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.
of Bill Highlighting Omissions
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
- No attempt
to increase the effectiveness, independence and transparency of
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’
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.
for voter education are still unsatisfactory
over voter education are excessive and liable to discourage other
organisations from trying to inform voters of the issues at stake
in an election.
Registrar-General will continue to prepare voters’ rolls
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.
Chief Elections Officer will continue to be the returning officer
for presidential elections
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.
ballot-papers will continue to be identifiable
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.
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.
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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