By Zimbabwe Lawyers for Human Rights
The 2013 Constitution provides for the overall framework for the conduct of elections in Zimbabwe, which must be managed by an independent Zimbabwe Election Commission that is subject to the Constitution and the other laws.
The Constitution also provides for political rights – the right to vote and the right to be voted into office. Since adoption of the Constitution in 2013, Zimbabwe Election Support Network (ZESN) and Zimbabwe Lawyers for Human Rights (ZLHR, have been calling for alignment of the Electoral Act to the Constitution.
In some instances, ZESN and ZLHR have also been calling on the implementation of provisions of the Constitution as non-alignment must not undermine implementation as some provisions can just be implemented without waiting for alignment as the Constitution is the highest (supreme) law of Zimbabwe.
Responses by government to calls for alignment have been piecemeal through a number of Acts that include;
1. Electoral Amendment Act, 2014
2. General Laws Amendment Act, 2016
3. Electoral Amendment Act, 2018
4. Judicial Laws, Ease of Settling Commercial and other Disputes
On 28 May 2018, another Electoral Amendment Act was passed and the 2018 Election date was announced thereafter. Consequently, as a result of the announcement of the Election day as 30 July 2018, any amendments to the Electoral Act that happen after the proclamation do
not apply to the 2018 elections, but other future elections.
The Electoral Amendment Act as passed on 28 May amends some sections and repeals some sections in the Electoral Act. However, the Electoral Act as amended does not fully address the concerns raised by ZLHR and ZESN in previous analyses of the Electoral Act. The Electoral Act now removes the requirement for an electoral officer to witness how a visually impaired person votes, establishes the Electoral Court as a specialised division of the High Court and sets out a new and detailed Electoral Code of Conduct for political parties, candidates and other interested stakeholders.
Importantly, the Electoral Act now criminalises threatening statements by intimidators that they can discover how a voter cast his or her ballot and this is important in light of the noting of serial numbers by perpetrators as a means to intimidate the electorate. It revokes section 40F of the Electoral Act which requires all foreign contributions for the purpose of voter education to be channelled through ZEC and abolishes the use of voter registration certificates (registration slips) where a person’s name does not appear on a voters’ roll.
There are a number of outstanding issues impacting the independence of ZEC, the right to vote, procurement and printing of ballot papers remains shrouded /in secrecy and there are no provisions directing the separation of election residue to enable petitioners to obtain a recount for a specified election.
Another notable omission is the absence of a framework to guide the operations and accreditation of long term observers.
New terms defined under this section include, ‘election petition,’ ‘gender,’ ‘gender equality,’ and registration office. Clause 2 also defines the Electoral Court and a general election.
By definitively stating that the Electoral Court is a division of the High Court, this section harmonises provisions of the Electoral Act with the Judicial Laws, Ease of Settling Commercial and Other Disputes Act, and clarifies the question of appointment of Judges to the Electoral
Court.
Inclusion of and definition of the terms ‘gender’ and gender equality is also a commendable development, given the responsibility of all state agencies to promote full gender balance and the participation of women in all spheres of Zimbabwean society on the basis of equality with men.
What remains outstanding is clarifying the scope of the Electoral Court’s subject matter jurisdiction, whether the court will deal only with election petitions or any other election related matters whenever they arise at any period in the electoral cycle.
Gender
Section 17(1)(a) state must promote full participation of women. Section 5 &11 Adds additional functions for ZEC to ensure that there is ‘gender mainstreaming, and gender equality’ in electoral processes.
ZEC must also enhance gender equality on top of ensuring independence, impartiality and professionalism of Commissioners and agents of the Commission.
These provisions are commendable as ZEC must also ensure that gender is mainstreamed in its work as well as ensuring fuller participation of everyone regardless of gender. It is hoped that this will enable women to fully participate in all activities carried out by ZEC in fulfilment of its mandate.
Voter registration & Voters Roll
Section 239 (c,d&e) functions of ZEC include to register voters, compile voters roll and register, ensure proper custody and maintenance of voters roll and register Section 18 The Minister is now required to obtain the approval of ZEC and consult the former RGV before making regulations.
The Minister must get approval from ZEC and consult the former Registrar General of Voters (RGV) on how to deal with confidential information that the former RGV has, or how to resolve any discrepancies between the records of the former RGV and those of the Commission and mandatory automatic and electronic voter registration.
This provision maintains the role of the Minister in the introduction of regulations on voter registration, sharing of information etc. ZEC must be left to enact its own regulations without
the consent or approval of the Minister or the former RGV. Such involvement amounts to interference with the mandate of a constitutional body. These powers are not supported by any
constitutional provision and are clearly unconstitutional.
The minister and the RGV should have no role in the management of elections. What would be sensible and in accordance with the law, is to give the law-making powers, in terms of regulations and rules, to ZEC itself as the only constitutionally mandated body to conduct
elections.
The RGV still has a say on the information that he has on registered voters although he does not take part in this process anymore. RGV must have handed over any information and material to ZEC in as much as it is needed to create a comprehensive voter register. Section 239(c), (d) and (e) unambiguously provide that the functions of ZEC include voter registration, the compilation of voters’ rolls and registers and the proper custody and maintenance of voters’ rolls and
registers.
There is no further role for the former RGV and none for the Minister of Justice, Legal and Parliamentary Affairs.
Voter registration & Voters Roll
Section 239(c,d&e) functions of ZEC include to register voters, compile voters roll and register, ensure proper custody and maintenance of voters roll and register provisions on the keeping of voters rolls by ZEC, inspection by the public and obliges ZEC to keep and maintain voters’ roll in printed and electronic form for each polling area.
ZEC may prepare and maintain a consolidated national voters’ roll and a consolidated voters’ roll for each constituency or ward although these will not be used for polling.
Provides for the inspection of voters’ rolls and provision of copies and amends section 21 of the Electoral Act by outlining the method for inspection and provision of the voters roll, including the consolidated roll to any person who requests it, upon payment of the
prescribed fee.
ZEC has an obligation to keep and maintain in printed and electronic format a voters’ roll for each polling station. Concerns have been raised in the past that ZEC did not provide an electronic copy of the voters’ roll that was searchable. It is hoped that Commission will stick to the letter of the law and ensure that the electronic version will be searchable.
Whilst it is not mandatory for ZEC to prepare and maintain an consolidated national, or consolidated constituency or ward voters’ roll. This provision is dangerous, as ZEC has an option and may decide not to produce the national, constituency or ward voters’ roll.
There is a potential conflict within this amendment as ZEC may prepare and maintain consolidated national, constituency or ward voters roll which it has to provide for inspection. It must be compulsory for ZEC to produce these voters’ roll as these will be relevant for some
stakeholders such as candidates who would need to have consolidated rolls, not just polling station voters’ rolls.
Section 23
Increases residence qualification of voters from a continuous period of 12 months to a continuous period of 18 months before a potential voter may be removed from the roll for that constituency.
The non-repeal of this section still means that Zimbabwean citizens based abroad cannot return to participate in electoral processes if they have been residing out of their constituencies for a continuous period of 18 months, unless they are entitled to postal votes by virtue of being on government service.
It also means that anyone in prison cannot vote if they are away from their constituency for 18 months and their name is removed from the voters roll.
This section must be repealed to ensure that every citizen who registers vote to be afforded the opportunity to register regardless of whether they have been resident in the constituency of a prescribed period of time. ZLHR and ZESN maintain that the political rights of all Zimbabweans provided in section 67(3) of the Constitution should be protected and that in its current form, section 23 of the Electoral Act is unconstitutional.
Provisions allowing those living abroad to register to vote must be included and this can start with them being allowed to vote for the Presidential candidate.
Sections 24 & 25
Presently, sections 24(1) and 25(1) of the Electoral Act require a claimant for registration presents themselves at the appropriate voter registration office and complete a claim form and
may request the assistance of a voter registration officer. The amendments make it clear that a potential voter may register at any voter registration centre anywhere in the country other than in their own constituency and then seek a transfer which is done when the voter registration officer is satisfied that they are entitled.
Candidates can also seek transfer to stand for election in other constituencies but must seek approval from ZEC. This section incorporates provisions of Statutory Instrument 85 of 2017.
Section 26A Substitutes section 26A with a new section that requires claims for voter registration and transfer of voter registration to be lodged no later than the second day following the publication of the election proclamation.
This section shortens the period for registration after proclamation to 2 days instead of the 12 days, but if voter registration is conducted continuously, as it should this should not be fatal to citizens’ political rights and as long as voter registration is conducted transparently.
Voter registration & Voters Roll
Section 239(c,d&e) functions of ZEC include to register voters, compile voters roll and register, ensure proper custody and maintenance of voters roll and register.
Section 32 & 35. Repeals section 32 and replaced it with wording providing for the removal of
duplicates (if one is registered more than once) and empowers ZEC to de-duplicate the voters’’ roll by removing duplicate or multiple names of a vote who appears more than once.
No notice is required to be given, to affected person. The affected person may appeal to a
designated magistrate of the province. Given the historical state of the voters’ roll in previous election cycles, it is important for ZEC to be able to de-duplicate the roll so as to guard against electoral fraud.
However, the stipulation that no notice has to be given is contrary to the tenets of administrative justice as a voter should have the opportunity to make representations before his/her name is removed from the roll, and not after.
Though there is an option of appealing to a designated magistrate of the province, depending on timing it may be too late to get the name enlisted back on the voters roll.
Section 36A Repeals provision which provided that under section 36A of the Electoral Act, a person who has previously registered to vote is excused from having to fill in a claim form, being only required to produce proof of identity to the voter registration officer.
This is necessary for the creation and consolidation of a new voters roll for Zimbabwe to prevent voters’ names being carried over from the old roll. The BVR system will go a long way in addressing the problems associated with the old voters roll including duplications, and dead
voters.
Sections 114(3), 115(3), 116(1), 116(2), 117(1-3), 188(1)193(a)
Refers to a Registrar-General of voters (new role of ZEC as provided in 2013 amendment). For clarity, it will be better if the term Registrar-General of Voters is completely removed from the Electoral Act and substituted by ZEC voter registration officers. This reference
to a former Registrar-General of Voters, and a Registrar General of Voters causes confusion.
Preparation for Elections
Section 239(a&b) to prepare for elections of the president, parliament, provincial and metropolitan councils, local authorities….to ensure conducted freely, fairly, transparently and in accordance with the law
Section 268 Elections to provincial councils must be held in accordance with Electoral Act Section 22A Enables ZEC establish two or more independent polling stations to serve the same polling station area, and to split the voters’ roll for that area between such polling stations, if ZEC finds that the estimated number of voters to be served by any polling station exceeds the number determined by it to be manageable.
The section brings a measure of opaqueness to the voting process as there is no guidance as to what should be considered ‘manageable’ by the Commission.
This section can make it difficult for stakeholders to properly plan in advance where they wish to deploy observers or polling agents, and it is not clear at what stage ZEC can decide to create more polling stations to serve the main polling station, and whether this will be sufficiently publicised.
There is need to ensure that the establishment of additional polling stations does not affect proper planning and prejudice activities of other stakeholders involved in elections.
Section required
There is no provision for ZEC to provide an election timetable ahead of any election. This section must provide the timeline within which ZEC must provide its timetable for election, with relevant information such as the date by when the timetable must be gazetted, cut-off date within which voters’ roll must be provided etc.
Section required
No provision in Electoral Act on provincial councils. The electoral law must make provision for the provincial councils and election of chairpersons for the provincial council as provided in section 268 of the Constitution that provides for devolution of power.
Delimitation
Section 239(f)
Role of ZEC to delimit constituencies Section 157 & 161
ZEC to periodically delimit constituencies & wards once every ten years soon as possible after census.
Section 155(2)(c) Reasonable access to all materials and information to participate effectively. Section 37B Removes President from the delimitation of constituencies processes and repeals the whole section.
This consolidates the independence of the ZEC. Bringing provisions of the Act in conformity with section 239(f) of the Constitution which makes the delimitation of constituencies the role of ZEC.
Section required
Act does not elaborate on delimitation process. ZESN and ZLHR recommend that constituency boundary delimitations provisions become elaborate to ensure that seat allocations enable
voters to be represented in the legislature in roughly equal population ratios.
There is need to provide clear procedures and timelines to dispute the delimitation process through the Electoral Court.
Section required
Act does not provide for access to maps following delimitation. Maps for delimited boundaries must be available for inspection at ZEC offices. Ability to inspect maps showing the boundaries of constituencies after publication of notice in government gazette, including district boundaries advances section 155(2)(c), being reasonable access to all material and information to participate effectively. This new provision must be inserted.
Voter Education
Section 239(f) ZEC to conduct and supervise voter education.
Section 40B
Now requires that voter education be conducted in an accurate, gender sensitive manner and unbiased manner, with due regard to the updated electoral Code of Conduct for political parties and candidates prescribed in the Fourth Schedule.
The mainstreaming of gender by the Commission in its work is commendable and will go a long way in fostering the participation of women. However, it is crucial for the Commission to factor in other special interest groups such as the disabled in the provision of voter
education material.
Section 40F
Repeals section 40F which required all foreign contributions for the purpose of voter education to be channelled through ZEC. This is progressive as it will open up the possibility of more
civil society organisations collaborating and complementing ZEC in conducting voter education.
Section 40C(1)(h)
Section 40C(3)(c)
Voter education must be funded solely by local contributions or donations, if foreign funding, then this must be channelled through ZEC for onward allocation.
Criminalises the conducting of voter education as part of a course in law or civics. This provision must be repealed as it is not justifiable in a democratic society that is upholding the right to freedom of association, expression etc.
It is more absurd as ZEC is not obliged to set up a proper structure for management of these
funds. Again this is not justifiable, given the inclusion of political rights in the Constitution and whole chapter of elections, this section must be repealed. Instead a new section that clearly defines what voter education is, taking into account other constitutional provisions must be included.
There is no section that obliges ZEC to ensure that its voter education is accessible to everyone in form and content, such as sign language, other national languages and be simple. Must ensure that voter education is a continuous process throughout the electoral cycle.
Election observation
Section 239(i) of accrediting observers of elections and referendums.
Section 40G
This extends the function of election observers to include furnishing ZEC with a comprehensive review of the election taking into account all relevant circumstances, including factors that
have a bearing on gender equality and elections. This is also commendable, but should go beyond gender as discussed above.
Section 40H
Addition of a representative from the Minister responsible for women’s affairs, gender or community development to the Observers Accreditation Committee.
Section 239(i) of the Constitution empowers ZEC to accredit observers of elections and
referendums. This section does not outline a role for the Executive as represented by the various ministries outlined in section 40H of the Electoral Act and is unconstitutional in its current form.
ZEC must include a gender expert that is independent of the executive in its Accreditation Committee.
Section 40K
Provides for the election observer status of the Zimbabwe Human Rights Commission (ZHRC) as represented by its commissioners or employees is given. ZHRC provides draft report on any election or electoral related process that it observes to ZEC first and must consider the comments that may be made by ZEC on the draft.
This is progressive as ZEC is mandated to accredit any employee or commissioner of ZHRC who wishes to observe an election or electoral process. Given the wide mandate of the ZHRC this provision could greatly improve transparency of elections and by ensuring that the ZHRC is able to conduct its operations unhindered, however, the requirement that a draft report be provided to ZEC which makes comments that must be considered erodes the independence of ZHRC.
Section 40H
Observers Accreditation Committee still includes employees within the executive arm of government. ZEC has function of accrediting observers (section 239). Those disqualified from being appointed to ZEC is clear in terms of section 240 of the Constitution, with members and employees of statutory body, councils and government controlled entities not eligible.
Provisions of section 40H must be repealed so that no one who is disqualified from being part of ZEC is part of the Accreditation Committee.
Section 40I
Accreditation of Observers is decentralised to provinces, provides who applications are received and passed on to accreditation committee, the Minister of Foreign Affairs can invite foreign
observers.
While accreditation is decentralised to the provinces, there is no clear timelines for Chief Elections Officers to communicate with Observers Accreditation Committee and the applicants.
They must be clear short timeframes of communication between the date of receiving the application and communicating the outcome.
ZEC has function of accrediting observers; it must therefore call for all applications. Minister of Foreign Affairs, an employee of a statutory body and interested party in elections must not invite have leeway to invite certain individuals to observe the elections.
Accreditation Committee must be composed of personnel from ZEC with no politicians for it to be independent as envisaged in section 235 of the Constitution on independence of Commissions – specifically that they are not subject to direction or control of anyone.
The law must explicitly provide for long term observation by domestic and international observers. In addition the law must waiver accreditation fees particularly for local observers as the case in other jurisdictions in the region.
Representation of persons with disabilities
Section 155 (2) State must take appropriate measures to facilitate voting by people with disabilities and special needs.
Section 45: Requires that the two candidates to represent persons with disability must consist of a woman and a man. Ensure that the needs of women with disabilities will be represented in the Senate.
7th Schedule
Election of Senators to represent persons with disabilities
The majority of the board members are appointed by the Minister and there is too much executive control in the composition of the Board that is supposed to sit as the Electoral College.
This provision ensures that nomination for people with disabilities office is exclusionary as others who are not registered in such organisations are not able to nominate, this violates the right to freedom of association stipulated in section 58 of the Constitution.
Ballot papers
Section 239(g) design, print and distribute ballot papers.
Section 52A: Requires ZEC to ensure that the number of ballot papers printed for any election does not exceed by more than 10% the number of registered voters eligible to vote in the election.
This is a progressive as it conforms to best practices. In addition in the interests of transparency this section should be expanded to include the need for a bidding process for the printing of ballot papers to ensure that all interested parties are satisfied as to the integrity of the process.
Section 126
Removes requirement that ZEC must remove the name of a deceased or withdrawn candidate from a ballot paper after it has been printed. While it may not be possible to remove the name of a deceased candidate from the ballot paper, all reasonable steps must be taken to ensure that voters in the area concerned are made aware of the death of a candidate.
Voting
Section 156 Conduct of elections and referendum. Section 56 Removes the proviso that if the name of the voter did not appear on the ward voters roll he or she shall be entitled to vote upon production of a voters registration certificate issued to him or her; and proof of identity.
It also further provides that voters can decline to vote in a particular election where two or more elections are being conducted at the same time. This removal of the provision that voters whose names did not appear on the voters roll could use voter registration slips or identity cards to vote is necessary given the many instances in which they were used to vote multiple times in the 2013 elections.
There is scope for voters to pick and choose which elections to participate in where there are 2 or more being conducted simultaneously is also a welcome development, provided that there are sufficient safeguards to ensure that the declined ballot papers are accounted for.
Section 56(1a) States that every voter is entitled to vote for a constituency representative or councillor at the polling station he/she is registered at a by-election. Clarifies that voting during
by elections will be done at polling station where one is registered.
Section 56(3) Provides that (unless directed by ZEC) the presiding officer shall require an applicant for a ballot paper to produce his or her voters registration certificate or proof of identity and if the voter’s name appears on the ward voters roll and it is clear that they have not voted, they are given ballot papers and the elections officer may mark their certificate or identity card accordingly.
This provision may be a safeguard to prevent double voting. However it may cause challenges if election officers insist on inspecting a voter registration certificate as some voters may have lost these.
Section 59 Removes requirement for an electoral officer to witness how a visually impaired person votes. This will assist in protecting the secrecy of the vote for blind voters. However, it would be more desirable to provide template ballots or tactile ballots which blind voters can use to vote by themselves, unassisted in line with the progressive realisation of the rights of the disabled in section 83 of the Constitution.
Section required
To provide for voting of people in prison on voting day.
There must be provision for voting for people in prison as provided in other countries. Prisoners must at the very least be allowed to vote for candidates in the National Assembly and for the President.
Section required
To reinstate the special vote which can be for people with a physical infirmity, disability or pregnancy, absence from voting district while serving as an election officer, on duty as
a member of the security services.
This will allow those who will be conducting elections, those who are not able to go to their polling stations because of physical condition to vote. The votes will then be sent to the respective polling stations on election day for counting.
Electoral malpractices
Section 133A This expands the scope of punishable “intimidation” by ‘threatening statements by alleged intimidators that they can discover how a voter cast his or her ballot.’ If convicted of this offence, a perpetrator is liable to a fine level ten ($700) or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
This is a progressive addition given the widespread reports of intimation of potential voters in the previous elections and the BVR exercise where political party actors were recording serial numbers of voter registration certificates on the pretext that they will be able to determine how a voter has cast their vote.
The criminalisation of this practice should act as a deterrent for future offenders.
Access to media
Section 160J
Amends section 160J “Conduct of news media during election period” by activating the provisions which mandate news media to ensure equitable coverage in an election period
to any specified date on or after the beginning of the period of six months before the end of the five-year term of Parliament as specified in section 143 of the Constitution.
The extension of the ‘election period’ is crucial to curb partisan news coverage as it will assist in
equitable coverage of all the players and not give the one candidate an advantage over another.
Conflict Management
Section 160A Empowers ZEC to activate the Act’s provisions on the setting up of the National Multiparty Liaison Committee and the media monitoring of elections before rather than
after the proclamation of an election, provided that the period shall commence as soon as possible after the closure of nominations in an election (or, in the case of a national multiparty liaison committee, from such date as the Commission may designate, after consultation with the Minister, being any date on or after the beginning of the period of six months before the end of the five-year term of Parliament as specified in section 143 of the Constitution.
This provision is crucial for conflict management and will assist in creating a more peaceful environment through the early activation of the National Multiparty Liaison Committee. It would be more desirable to have the Multi-Party Liaison Committee set up much earlier.