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This article participates on the following special index pages:
Zimbabwe's Elections 2013 - Index of Articles
with the Electoral Act - Bill Watch 34/2013
July 30, 2013
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.
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.
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.
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.
of rolls provided in terms of section 21 must be formatted so that
their contents can be searched and analysed [section 21(7)].
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.
to combat intimidation and prevent conflict
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
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.
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 email@example.com.
the point remains that it was ZEC’s responsibility to inform
us of this deviation from the Electoral Act.
agents (formerly polling agents)
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.
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].
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.
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.
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.
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.
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.
59 of the Act, the police are no longer entitled to assist disabled
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’
- 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?
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.
must clarify and publicise how it intends to comply with the court
order which it sought and obtained.
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
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.
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
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
- 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.
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.
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
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;
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.
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.
makes every effort to ensure reliable information, but cannot take
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