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Problems with the Electoral Act - Bill Watch 34/2013
Veritas
July 30, 2013

Introduction

Because the Electoral Act [Chapter 2:13] has been amended so often, and because the latest amendments were made barely six weeks ago, there is some uncertainty amongst candidates and political parties as to what precisely the Act’s provisions are. The Zimbabwe Electoral Commission [ZEC] has done little to dispel the uncertainty. It has not answered many questions that have been put to it, even written questions by letter and email and their phones are too few and impossible to get through to. Unfortunately this can give the impression of a defensive, secretive organisation which is conducting the election on an ad hoc basis rather than according to the law.

To be fair, this is not entirely ZEC’s fault: the commission did not formulate the amendments to the Electoral Act, which are not always easy to understand or, apparently, to implement. Nonetheless, ZEC’s failure to communicate has left parties and the public in the dark about how important steps in the electoral process are to be conducted.

This Bill Watch will explain sections of the Electoral Act and raise some of the points on which ZEC needs to give the public information.

1. Provision of copies of the voters’ rolls

A day before polling, candidates and parties have not yet been able to obtain copies of the voters’ rolls which will be used in the election. At a press conference held by ZEC, the Registrar-General said they will be given only hard [i.e. printed] copies, not electronic ones.

This is a serious breach of the law.

According to section 21(4) of the Electoral Act, within a reasonable time after an election is called ZEC must provide every party that intends to contest the election, and any election observer who requests it, with one copy of the voters’ rolls to be used in the election. The copies must be in printed or electronic form as the party or observer may request. ZEC can charge a fee for the rolls, but the fee must not exceed the reasonable cost of providing them.

Section 21(6) of the Act further provides that within a reasonable time after nomination day, ZEC must provide every nominated candidate, free of charge, with one electronic copy of the voters’ roll to be used in the election which the candidate is contesting; and if the candidate so requests, ZEC must provide him or her with a printed copy of the roll for a reasonable fee.

Electronic copies of rolls provided in terms of section 21 must be formatted so that their contents can be searched and analysed [section 21(7)].

Political parties and candidates need copies of voters’ rolls in order to muster their supporters and conduct their campaigns - that is why section 21 was inserted in the Act. ZEC’s failure to supply the copies must have seriously hampered the parties in their campaigns for the now-imminent election. If ZEC was unable to obtain the necessary copies or data from the Registrar-General then it should have approached a court for an order compelling him to hand them over.

All the political parties and candidates involved in the election, and the public as a whole, are entitled to a full and truthful explanation from ZEC for its failure to comply with section 21 of the Act.

2. Committees to combat intimidation and prevent conflict

Under section 133H of the Electoral Act, the Zimbabwe Human Rights Commission must establish a special investigation committee for each province, to assist special police units investigate cases of political violence and intimidation. Each of these committees is supposed to consist of an employee of the Commission, a police liaison officer and two representatives of every party contesting the election [rather oddly, by virtue of section 133H(3) as read with section 11(3) of the Act, these party representatives must not be office-bearers in their parties].

Under section 160B of the Electoral Act ZEC must set up a national multi-party liaison committee and further such committees for all the constituencies and local authority areas in which the election is being contested. Each of these committees is supposed to consist of a representative of ZEC and representatives of every party contesting the election. The committees are supposed to try to resolve electoral disputes and grievances and to report such disputes and grievances to the Commission. [Again rather oddly, the national committee has the additional function of establishing sub-committees in each province, an unnecessary exercise if committees have already been established in all constituencies.]

ZEC should have informed the public about these committees whether they have in fact been established according to the Electoral Act or not; if they have, where are their offices are situated and how they can be contacted. ZEC must publish this information immediately, because the public must be able to lodge complaints of violence, intimidation and electoral irregularities with the committees if the committees are to perform their functions effectively; and unless members of the public know where the committees are they won’t be able to lodge any complaints. Which would be nice for the perpetrators of violence and intimidation but not so good for the integrity of the electoral process.

Addendum: In fact the Committees under section 133H have not been established. Veritas has just been in contact with the Chairperson of the Human Rights Commission. He has said his Commission has decided to maintain its independence and should not form joint committees with police, ZEC and political parties. He said that although the Commission does not have the capacity to set up independent countrywide centres, complaints can be lodged at their Harare office at First Floor, Pearl House, Corner of Samora Machel Avenue and First Street. Their phones have not yet been installed yet but complaints can be made in person or by email to zhrc2012@gmail.com.

Nevertheless the point remains that it was ZEC’s responsibility to inform us of this deviation from the Electoral Act.

3. Election agents (formerly polling agents)

Under section 95 of the Electoral Act, a candidate’s chief election agent can appoint election agents for the candidate, and must notify the appointments to the electoral officer for the constituency concerned not later than three days before polling day. In the case of a general election where presidential, parliamentary and local authority elections are being run concurrently in the same polling stations, the election agents are nominated by political parties. The function of these election agents, who used to be called “polling agents”, is to be present at polling stations to ensure that voting is properly conducted and generally to watch for electoral malpractices.

One election agent for each candidate or party is entitled to be present inside every polling station, and two more are allowed to be “in the immediate vicinity” of the polling station; the agent inside the station can be relieved from time to time by one of the other two [sections 55(2a) and 95(1a) of the Act].

In addition to these election agents, every party which is contesting an election and which has given the Commission early notification of the names of responsible national and provincial office-bearers can appoint a roving election agent in terms of section 93A of the Act for each ward in which the election is being contested. These roving election agents must be appointed no later than 12 days before polling day and are entitled to enter all polling stations within the wards for which they have been appointed.

One election agent for each candidate or party is “probably” entitled to be present in a polling station when the ballot box is sealed before the commencement of polling. [The word “probably” has to be used because section 54 of the Act, which confers this right, contains an incorrect and confusing cross-reference to another provision which has been repealed. In the interests of transparency ZEC should interpret this as their being entitled to be present]. The election agents are entitled to be present when the ballot box is sealed in terms of section 61 of the Act after polling has ended, and during the counting of votes at the polling station in terms of section 62. At the counting of votes, indeed, section 62 seems to allow all the election agents for each candidate or party to be present five in all, including the three who attended during polling, the chief election agent and the party’s roving agent. The Second Schedule to the Electoral Regulations, 2005, however, allows only one agent to be present a reasonable restriction.

When voting returns are verified and collated at ward, constituency, provincial and national level in terms of sections 65, 65A, 65B and 110, candidates and their agents are entitled to be present. The Act does not lay down any limit on the number of agents who may attend, but again the Second Schedule to the Electoral Regulations limits the number to one for each candidate.

4. Police officers in polling stations

Can police officers be stationed inside polling stations when voting is in progress? Probably not, though the law is by no means clear.

Under section 55(7) of the Electoral Act, there must be enough police officers “available in the immediate vicinity of each polling station” to provide immediate assistance if called upon by the presiding electoral officer to help keep order at the station. Under section 55(7a), the police officers have the “sole functions” of maintaining order and preventing contraventions of the law, and must not “interface with the electoral processes” [whatever that means – perhaps interface was a misprint for interfere]. When inside a polling station, according to section 55(7a)(c), they must “exercise their duties under the direction and instruction of the presiding officer”. This suggests that police officers may enter polling stations only to “exercise their duties”, i.e. to maintain order and prevent contraventions of the law; they cannot sit around in the stations waiting for disorder to break out or contraventions of the law to occur.

Under Section 59 of the Act, the police are no longer entitled to assist disabled voters.

5. The “extra-special” votes

ZEC applied for and obtained an order from the Constitutional Court to the effect that members of the security forces who were unable to cast special votes in advance of polling day would be “allowed to cast their votes on July 31” [i.e. on polling day].

Quite how they will do this is unclear, to say the least.

Will they be allowed to cast their votes like other voters at whichever polling station they happen to be on polling day? If so:

• unless they are registered on the ward voters’ roll concerned, they will be contravening section 56 of the Act, which prohibits voters from voting in a ward if they are not registered on the ward voters’ roll;
• if they are registered on the ward voters’ roll, the question arises: why were they authorised to cast a special vote, since such authorisation is supposed to be given only to people who on polling day will be on duty outside the wards in which they are registered?

Alternatively, will their votes be put into special ballot boxes, to be sent to the wards in which they are registered as voters? If so:

• there is no such procedure laid down in the Electoral Act;
• the delay entailed in sending such votes round the country before they can be counted is likely to delay the final announcement of results in the elections.

The Commission must clarify and publicise how it intends to comply with the court order which it sought and obtained.

6. Recording of ballot-paper numbers

It has been reported that traditional leaders instructed their people to record the numbers of the ballot-papers which are issued to them. The implication is that the voters will hand over the recorded numbers to office-bearers of the political party to which the traditional leaders concerned belong, so that if the voters have voted for any other party they can be identified and punished. This amounts to intimidation and a contravention of section 86(5) of the Electoral Act, which prohibits anyone from trying to ascertain which candidate a voter has voted for.

7. Counting of votes

There have been rumours that votes will be counted at constituency centres. This would be illegal. Votes that are cast in a polling station must be counted in that polling station in accordance with section 63 of the Act. Postal votes and special votes [i.e. votes cast in advance of polling day by electoral officers and members of the security forces who will be on duty on that day] are sent to the wards in which the voters are registered and are counted at ward level.

Once votes have been counted at polling stations, the polling station returns, showing the results, are sent to ward centres where they are verified and collated, and then to constituency and provincial centres for further verification and collation and the announcement of the final results.

8. Displaying and relaying of results

After the counting of votes the result of the count has to be displayed outside the polling station and copies of the result must be given to the political party agents and candidates concerned. The polling station returns are then sent to ward centres for collation, and the collation results have to be displayed outside the ward centres and again given to political party agents and candidates concerned and the same procedure followed at every level up the National Command Centre

9. Announcement of results

Section 66A(1) of the Electoral Act, as recently amended, makes it a criminal offence for anyone, before the official announcement of the result:

• to purport to announce the result of an election as the true or official result, or
• to purport to declare a candidate to have been duly elected.

If such an announcement is made falsely with intent to deceive or discredit the electoral process, the penalty is increased.

Subsection (3) of the section adds a rider to the effect that it is not an offence to report the number of votes received by a candidate or political party in an election, “where the report is based on polling-station returns and constituency returns from the election concerned”. In other words, there is nothing wrong in a journalist or anyone else reporting how many votes a candidate or party has received, according to the official returns, and allowing his or her readers to draw conclusions from the figures; indeed, it is probably lawful to state the conclusion that candidate X has received more votes than candidate Y, or has won the election so long as the conclusion does not purport to be the official result.

A final point

Most of the issues raised in this Bill Watch are basic to the electoral process and should be easily answered, but it has taken a great deal of time and effort wading through the oft-amended, sometimes contradictory provisions of the Electoral Act to find out what the law really is.

If one wants to understand the provisions of the law, one has to look at:

• the Electoral Act, which has been amended five times, the last amendment being published only the day before the electoral proclamation, which was 44 days before polling day;
• the general regulations of 2005, which have also been extensively amended - no fewer than 19 times;
• specific sets of regulations published in 2013 and regulating such matters as the nomination of candidates and the accreditation of observers.

On the ZEC official website there are two documents purporting to be the consolidated version of the Electoral Act. The first one does not show the latest amendments. The second, which does, is not entirely accurate, e.g. it leaves out a whole sentence in Section 38(1). The website also purports to have a consolidated version of the Electoral Regulations. It is impossible to download it or even view it.

This Bill Watch would have been much easier to prepare indeed, it might not have been necessary to prepare it if the amendments to the Electoral Act had been more clearly drafted, and if ZEC had done its duty under sections 5(d) and 191 of the Act and kept the public informed about all matters relating to the electoral process and ensured that copies of the Act and regulations were available to members of the public at all times.

The Constitutional Court ruling that the elections had to be held by 31 of July led to a headlong rush into elections. This undoubtedly caused ZEC considerable problems. But ZEC should have opposed the application and pointed out its difficulties if the election was held so soon. It is no use ZEC assuring the public that the logistics are in place for the election when there is a lack of communication and transparency and the very obvious fact that in the special voting there was chaos.

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