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Repeal of Section 57: A most significant change in the Electoral Law
Alex T. Magaisa
June 12, 2013

The media reports today that Cabinet has agreed to the proposed amendments to the Electoral Act, which means the Bill should now go through the parliamentary process. It is Parliament's duty to scrutinise the Bill and ensure that it conforms to the new Constitution. One of the highlights of the changes to the Electoral Act, as highlighted by the Justice Minister in the media today is the amendment to section 57. This is because s. 57 is one provision that severely compromised the secrecy of voting, itself a key constitutional right

Section 57 regulates the manner of voting at the polling station. It states that after a person has taken the ballot paper and signified the preferred candidate, he/she is required to "(iii) then fold the ballot paper so that the official mark is visible and the names of the candidates and the cross made by him or her are not visible and, having held up the ballot paper so that the presiding officer can recognise the official mark, drop the ballot paper in the ballot box placed in front of the presiding officer …"

The problem with this provision is that it presents opportunities for intimidation against the voter, thereby compromising the integrity of the electoral process. Critics of this provision have long argued that by requiring a voter to "hold up" his/her ballot paper to an electoral officer, after making his/her preferred choice, this provision can be and has been used to scare the voter into thinking that his/her vote will be seen. The very act of lifting up the ballot paper to show the official mark to the electoral officer is not only unnecessary but it also compromised the secrecy of the vote. Election manipulators, especially in rural constituencies used this provision to con and intimidate the voter into believing that his/her choice would be seen by the officers. This meant the voter would be forced to vote for a candidate that is not his/her choice but the preferred choice of the intimidators.

Those in support of this provision argued that it was necessary to ensure that the correct ballot papers were used for voting. This was unconvincing because the consequence of using the wrong ballot paper would be that it would be regarded as spoilt paper resulting in a spoilt vote. A voter who uses the wrong ballot paper is accepting the risk that his vote will be regarded as spoilt and will not count. In other words, the vote would not count. Furthermore, if the idea is to prevent electoral fraud, there are better ways of achieving that within the current framework. For example, the authenticity of the ballot papers can be guaranteed by ensuring that they have serial numbers or other specific features for verification purposes. The election agents for candidates will also be stationed in the polling station to watch over the voting process.

If the media reports are to be believed, this provision has now been dropped. It will no longer be necessary for the voter to hold up his/her ballot paper to show the official mark to the electoral officer. This will remove the element of fear that has been built around the application of this provision. The voter must now be educated, especially in rural areas, that it is no longer necessary to hold up his or her ballot paper to the electoral officer before inserting it into the ballot box.

This will enhance the secrecy of the vote and is in conformity with the voter's political rights guaranteed under s. 67 of the new Constitution which states that every Zimbabwean citizen has the right to make political choices freely. Section 57 of the Electoral Act emasculated the right of the voter to make political choices freely because of fear and intimidation.

The change is also consistent with s. 155 (1) of the new Constitution which requires that elections "must be conducted by secret ballot" because s. 57 compromised the secrecy of the vote. Finally, the new manner of voting is also in conformity with s. 156 of the new Constitution which places an obligation on ZEC to ensure that "whatever voting method is used, it is simple, accurate, verifiable, secure and transparent".

Overall, the change is a victory for fairness, transparency and common-sense.

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