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  • Zimbabwe's Elections 2013 - Index of Articles

  • Stretching the Electoral Law till it breaks - Bill Watch 37/2013
    August 05, 2013


    Ever since the election proclamation was published on 13th June, setting the elections for 31st July, there have been allegations of electoral irregularities. Now that voting is over, it is worth listing instances in which the electoral law has been breached, in order to assess whether or not the election has been conducted in accordance with the Constitution and the law of Zimbabwe, as required by article II 4.b of the African Union Declaration on the Principles Governing Democratic Elections in Africa (2002): “Democratic elections should be conducted ... under democratic constitutions and in compliance with supportive legal instruments”.

    1. Election date set by Judiciary

    Whilst the ruling of the Constitutional Court, as the highest court in the land, has to be obeyed, there was much criticism of and debate about its 31st May decision that the elections must be held by the 31st July. The Deputy Chief Justice, in his dissenting judgment, said setting election dates was a matter for the executive, not for the judges, and many Zimbabweans, both in the legal profession and outside it, think he was right. In fact, as things have turned out, and as many feared, it was the setting of so early an election date that resulted in the many problems that dogged the electoral process. The Constitutional Court’s ruling departed from the previously accepted interpretation of the existing constitutional provision, which had been in place since 1980, stating that elections “shall be held within a period not exceeding four months after the dissolution of Parliament” [28th June]. The main reason the court gave was that it would be “outrageous” for a country to be governed for long by the executive without a Parliament.

    Later the court had an opportunity to extend the date, when presented with several applications for extension. These included one made by the Minister of Justice and Legal Affairs to comply with the SADC Maputo Summit’s recommendation that the court be asked to postpone polling; and others which raised the difficulties facing voters and participating political parties, and officialdom, if the court’s deadline was allowed to stand. These applications were dismissed on 4th July, with no reasons given at the time or since.

    Comment - It is ironic that while Parliament was still sitting, the Electoral Act was amended by Presidential decree, thereby ignoring the constitutional imperative to have such amendments passed by Parliament [see below]. Also for the past month there has been absolutely no check on a virtual one-party cabal, as, although in theory the inclusive government is in existence until the new President is sworn in, there have been no Cabinet meetings, directives have been made by Zanu-PF Ministers decrees without Cabinet consultation, and local government councils were illegally prematurely dissolved.

    2. The calling of the Election

    When the President called the election on 13th June he did so without consulting the Prime Minister or the Minister of Constitutional and Parliamentary Affairs, or indeed the Cabinet. This was in breach of section 31H(5) of the constitution which was then in force and obliged him to act on the advice of the Cabinet [although the proviso to section 31H(5) allowed him to act on his own initiative with respect to the dissolution or prorogation of Parliament, the calling of this election did not entail dissolving or proroguing Parliament].

    3. Amendment of the Electoral Law

    Section 157 of the new Constitution states that an Act of Parliament must provide for the conduct of elections, and paragraph 8 of the Sixth Schedule to the Constitution required this first election to be conducted in terms of “an Electoral Law in conformity with this Constitution” - i.e. it had to be an Act of Parliament.

    The existing Electoral Act needed to be amended extensively to bring it into line with the Constitution. The way in which it was amended was, however, seriously defective:

    • The amendments were unduly delayed, until 12th June 2013, only one day before the President issued the proclamation calling the election [the amendments were in fact issued to the public on the same day as the proclamation was published].
    • Despite the fact that Parliament was still sitting, the amendments were enacted through regulations made by the President in terms of the Presidential Powers (Temporary Measures) Act, despite the fact that sections of the new constitution that came into effect on the 22nd of May quite clearly state that the Electoral law can only be altered by Act of Parliament. This meant that the election was conducted contrary to the requirements of the new Constitution.
    • The amendments were carelessly drafted and contained numerous errors which could have been avoided if they had been enacted by Parliament and subjected to public scrutiny. There were also mistakes in the regulations gazetted to give effect to the amendments e.g. in the provisions for tabulation of results by election officers.

    Comment: Parliament had over two weeks to run when the Electoral Act amendments were made through Presidential Powers. The question is, did this irregularity alter the outcome of the elections? As MDC-T had a majority in the House, they could have ensured that the Electoral amendments were clarified and more precise - this may have ensured the elections could not go ahead unless the political parties had been given access to the voters roll in both hard and soft copy in time for them to scrutinise it and use it for their effective participation, rather than the night before polling, as was the case. [Thus ensuring that the new law would be fully in compliance with the spirit of the new Constitution, section 155(2)(c), which requires the State to ensure that “all political parties and candidates contesting an election have reasonable access to all material and information necessary for them to participate effectively”.]

    4. Voter registration

    Paragraph 6(3) of the Sixth Schedule to the new Constitution required the Registrar-General of Voters, under the supervision of the Zimbabwe Electoral Commission [ZEC] to conduct a special and intensive voter registration exercise, as well as a voters’ roll inspection exercise, for at least 30 days after the Constitution was published in the Gazette.

    An exercise was carried out, but it fell far short of what was envisaged by paragraph 6(3). Registration units were scheduled to spend only three days in each location, so voters were not afforded an opportunity to register and to inspect the rolls during the full 30-day period.

    There was no clarity about what proof applicants had to provide in order to be registered as voters; this applied particularly to people who were born in Zimbabwe but had previously been stripped of their Zimbabwean citizenship because they were citizens of another country. ZEC did not have the capacity to oversee both voter registration and simultaneously do voter education. Other organisations were warned off from providing information to the public until they had been accepted as official voter educators and this only took place too late to make an impact on voter registration.

    5. Voter education too little and too late

    In the electoral act there is an obligation on ZEC both in the Constitution and Election Act to conduct voter education. This was not thoroughly done. As cited above, there was confusion about what documents some persons previously categorised as “aliens” had to produce to claim the citizenship to which they are entitled by the new Constitution. There was so much lack of clarity over the right of citizens by birth to dual citizenship that a prominent Zimbabwean had to take a court case to clarify this. On how to vote, some questions quoted by the Bulawayo Morning Mirror just before the elections were: “Some have asked for example whether they can tick the person they like and put a cross against the name of the person they do not like.” "A few people have been asked about the voting system and in particular whether one has to vote for a single party or whether one can vote for different parties” [i.e. an MP or councillor from a party different from the party of the Presidential candidate they have voted for]. Neither was there clear indication of where complaints by the public could be taken.

    6. Preparation of voters’ rolls

    Under paragraph 6(2) of the Sixth Schedule to the Constitution, the Registrar-General of Voters was responsible, under ZEC’s supervision, for compiling the voters’ rolls for the purposes of the election. The rolls that were prepared were manifestly inaccurate. According to analysts, improbable numbers of registered voters were over 100 years old, and the names of many dead people remained on the roll. Press reports and anecdotal evidence told of many people being turned away at polling stations because their names no longer appeared on rolls of constituencies in which they had voted in previous elections. Defects might have been remedied if the inspection exercise mandated by paragraph 6(3) of the constitution had been carried out properly.

    The Zimbabwe Election Support Network, which fielded over 7000 observers, reported that at 82 percent of urban polling stations many potential voters were turned away and not permitted to vote for reasons which include names not appearing on the voters’ roll. They also estimated that three-quarters of a million urban voters had been removed from the roll. A thorough analysis of the late-appearing rolls would seem necessary for confirmation.

    7. Provision of copies of voters’ rolls

    Voters’ rolls are not secret documents. Under section 21 of the Electoral Act, ZEC must provide copies of the rolls, in printed and electronic form, to parties within a reasonable time after an election has been called, and to candidates within a reasonable time after nomination day. The electronic copies must be formatted so that their contents can be searched and analysed.

    In fact no copies were provided to the parties and candidates until the evening before polling day, when parties received only printed copies, not electronic ones.

    8. Non-availability of the Electoral Law

    Under section 191 of the Electoral Act, ZEC is obliged to ensure that all political parties and observers are provided with copies of the Act and regulations made under it, and that copies of the Act and regulations are available, for a reasonable fee, to members of the public.

    In fact, copies were not readily available in useful form. ZEC posted two versions of the consolidated Act on its website; one was out of date and the other contained errors [e.g., a whole sentence was left out]. As a result it was and still is very difficult for parties, candidates and the public to find out what the provisions of the electoral law really are. [An accurate version is now on the Veritas website]

    9. Conduct of the Media

    Throughout the election period the State-controlled broadcaster and print news media shamelessly supported the President and his Zanu-PF party, and heaped ridicule and vituperation on the Prime Minister and both formations of the MDC.

    This was in breach of section 155(2)(d) of the new Constitution, which obliges the State to provide all parties and candidates with fair and equal access to electronic and print media, both public and private. It also breached Part XXIB of the Electoral Act, which obliges news media to ensure that all political parties and candidates are treated equitably.

    If ZEC monitored the conduct of the media, as it was obliged to do in terms of section 160K of the Act, its monitoring was ineffective.

    It appears that no regulations have been made in terms of section 160G of the Act, regulating access to public broadcasting media. As a result, the MDC formations were denied effective access to the media.

    10. Investigation Committees

    Under section 133H of the Electoral Act, the Zimbabwe Human Rights Commission is obliged to establish special investigation committees for every province, to assist police liaison officers investigate cases of political violence or intimidation.

    No such committees were established.

    11. Special Voting

    It is universally accepted that the special voting [i.e. early voting by electoral officers, police officers and members of the security forces who were on duty on polling day] was a shambles. Many of those who were authorised to cast special votes were unable to do so; ZEC thereupon applied to the Constitutional Court and obtained an order to the effect that they should be allowed to vote on polling day instead.

    Despite its being authorised by the court, this was a clear breach of section 81B of the Electoral Act, which prohibits voters who have been authorised to cast special votes from voting in any other way. Furthermore, there was no procedure laid down in the Act or the regulations allowing people to vote in a ward if they are not registered on the voters’ roll for that ward [and, presumably, the people who were authorised to cast special votes would not have been within their wards on polling day, otherwise they would not have been eligible for a special vote].

    12. Failure to allow absent voters to vote

    In terms of section 67(3) of the new Constitution, every adult Zimbabwean citizen has the right to vote in all elections, and in terms of section 155(2) the State is enjoined to take all appropriate measures to ensure that all eligible citizens have an opportunity to cast their votes.

    No effort whatsoever was made to give such an opportunity to members of the Zimbabwean Diaspora, even those who remain registered on the voters’ roll. Likewise, prisoners were not afforded an opportunity nor were patients immobilised in hospital. Indeed, section 72 of the Electoral Act actually denied such people their right to vote by disqualifying them from obtaining postal votes: only Government employees stationed outside Zimbabwe and their spouses are entitled to apply for postal votes.

    Ironically, when ZEC applied to the Constitutional Court for an order allowing special voters to cast their votes on polling day, it used the argument that section 67(3) of the new Constitution, which gives all adult citizens the right to vote, trumped the Electoral Act, which denies people authorised to cast special votes an opportunity to vote on polling day. Yet ZEC ignored the fact that the same Act disenfranchised many more eligible voters, and did nothing to have the Act modified to enable those voters to exercise their rights.

    13. The Election Adjudicators – the Courts

    Any challenge to the Presidential election result must be taken to the Constitutional Court, the judges of which are Supreme Court judges. Challenges to individual National Assembly and council results must be taken to the Electoral Court, the judges of which are High Court judges assigned by the Chief Justice. New appointments to the Supreme Court were made by the President, two on 22nd May and one on 15th July. Six new High Court judges were appointed on 15th July. None of these appointments was made in terms of the constitutional provisions in force, which included Schedule 8, incorporating Article 20 of the GPA and requiring all these appointments to be made with the consent of the Prime Minister. As with all judicial appointments during the period of the GPA, President Mugabe simply ignored Schedule 8 and acted without consulting the Prime Minister.

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