The action by cabinet also puts into jeopardy the cherished notion of separation of powers in a democratic government. It is internationally acceptable that the judiciary, the legislature and the executive must exercise their constitutionally enshrined mandates without interference on each other`s duties. The apparent interference by cabinet in parliamentary business militates against the virtues of transparency and accountability, which contribute to free and fair electoral conduct.
The ERC has come up with alternatives to the provisions of the Electoral Amendment Bill that it feels may not enable a conducive electoral environment. “These alternatives suggest an amendment to the current provisions to ensure that Zimbabweans are guaranteed their right to participate freely in new elections leading to a fair result that ushers in a democratically elected government,” said the Centre.
Its recommendations are as follows:
A. REMOVAL FROM THE ROLL
Section 36B (c) allows the removal of a voter from the voters roll on the grounds that such voter: “has left Zimbabwe with the intention of residing permanently outside Zimbabwe”.
This provision deprives Zimbabwean citizens who leave the country to reside in foreign countries, but who still keep their Zimbabwean citizenship, their right to participate in the governance of Zimbabwe through voting in elections. Zimbabwean citizens in the diaspora who keep their citizenship and do not assume foreign citizenship must be allowed to retain their right to vote. The Constitution of Zimbabwe, Section 23A (2) (a), guarantees that “every adult Zimbabwean citizen shall have the right to vote” in referendums and elections.
The new electoral laws must guarantee and enable the exercise of the right to vote. Zimbabwe may follow the example set by other SADC countries, such as South Africa and Mozambique that have guaranteed the right of their citizens in the diaspora to vote. The Electoral Law of Mozambique, Act n. 7/2004 provides that “The voters residing abroad shall have two electoral constituencies, one being one for countries in the African region and the other for the rest of the countries.” During its 2004 and 2009 elections Mozambique registered voters in countries with large Mozambican populations, such as in Zimbabwe, South African and Portugal.
Zimbabwe has had millions of its citizens leave the country over the past decade, with an estimated, 3 million Zimbabweans in South Africa alone. Those citizens who have maintained their single Zimbabwean citizenship must be allowed to vote in Zimbabwe’s general elections.
Alternative
Given such a right the new Electoral Act must:
(i) Acknowledge and guarantee the right of Zimbabwean citizens in the Diaspora to vote, and provide for mechanisms to enable the exercise of such right.
(ii) Thus The proposed Subsection (c) of Section 36B must be amended to the effect that citizens of Zimbabwe who leave the country, but continue to maintain their Zimbabwean citizenship, cannot be removed from the voters roll but simply transferred to a separate voters’ roll for Diasporans.
(iii) Zimbabwe could also consider the Mozambique and Sierra Leone’s provisions on Diaspora Voters.
In Mozambique Diaspora Voters have at least two seats reserved for them. Thus two seats for Zimbabweans in Europe and those in Africa could also be reserved for those in the Diaspora. Separate voters’ roll could be created for such voters, separating them from citizens residing in Zimbabwe voting for candidates to represent them within their constituencies. The Electoral Law of Mozambique provides that:
Article 11
1. Citizens who reside and have been registered abroad can exercise their voting rights at their Republic of Mozambique embassies and consulates.
2. The electoral acts can only take place after the National Electoral Commission has verified that the necessary material conditions and the control mechanisms, follow up and inspection of the said acts, in the region or regions of the electoral district.
3. In the absence of the acts referred to in the previous point the National Electoral Commission shall redistribute to the other electoral districts the mandates of the electoral districts of the Mozambican communities abroad, in accordance with the criteria set in the present law.
Article 42
The polling stations constituted out of the country shall function in places indicated by embassies, general consulates or government representations in foreign countries.
Zimbabwe may also learn from Sierra Leone where, "The Diaspora Voting Act of 2011" has been tabled to enable Sierra Leone’s Diaspora Voters to enjoy their constitutional right to vote. Unlike with Mozambique no seats have been reserved for Diaspora voters, whose vote is simply added to the national vote. Some notable provisions within this Act are;
 "Diaspora Voter" refers to a citizen of the Republic of Sierra Leone who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections.
 Diaspora Voters have to personally apply for registration with a representative of the Electoral Commission at the country’s embassy, consulate or Foreign Service establishment.
 "National Registry of Diaspora Voters" refers to the consolidated list prepared, approved and maintained by the Commission of Diaspora voters whose applications for registration as voters, including those registered voters who have applied to be certified as voters, have been approved by the National Electoral Commission.
 The Commission shall cause the printing of ballots for Diaspora voters, voting instructions, and election forms in such number as may be necessary, Security markings shall be used in the printing of ballots for Diaspora voters. The Commission shall, not later than thirty (30) days before the day of elections, transmit by special pouch to the embassies, consulates and other foreign service establishments, the exact number of ballots for Diaspora voters corresponding to the number of approved applications, along with such materials and election paraphernalia necessary to ensure the secrecy and integrity of the election.
 Upon receipt by the designated officer of the embassy, consulate and other foreign service establishments of the ballots for Diaspora voters, voting instructions, election forms and other paraphernalia, he/she shall make them available on the premises to the qualified Diaspora voters in their respective jurisdictions during the thirty (30) days before the day of elections when Diaspora voters may cast their vote. Immediately upon receiving it, the Diaspora voter must fill-out his/her ballot personally, in secret, without leaving the premises of the embassies, consulates and other foreign service establishments concerned
 The Diaspora voter shall cast his/her ballot, upon presentation of the Diaspora voter identification card issued by the Commission, within thirty (30) days before the day of elections. The Diaspora voter shall be instructed that his/her ballot shall not be counted if it is not inside the special envelope furnished him/her when it is cast.
 The counting and canvassing of votes shall be conducted on site in the country where the votes were actually cast. The opening of the specially-marked envelopes containing the ballots and the counting and canvassing of votes shall be conducted within the premises of the embassies.
In South Africa’s 2009 National Assembly elections there was successful incorporation of electronic voting, with as many as 16,000 South Africans casting votes through the web simply by providing proof of their identity and voter registration. This of course raises questions about the reliability of e-voting, yet it is a process that shows how the diaspora can exercise their right to vote.
B. Voter Education: Section 40C (1) (h) read with 40F
The proposed section 40C (1) (h) read with section 40F prohibits voter education by any Zimbabweans or civil society organisations that receive direct foreign contribution or donation. It is only the Electoral Commission which can receive such foreign contribution and donations and thereafter allocate them to any person assisting in voter education.
Alternative
Proposed provisions (see sec 40B) clearly empower the ZEC over any voter education, including monitoring any voter education to be conducted in Zimbabwe. This means that there is little need to deny “foreign” funded Zimbabweans or organizations carrying out voter education when such education activities can be monitored by the ZEC, with real deterrent consequences for non-compliance spelt out under sec 40E (5).
Rather than barring voter education by foreign funded Zimbabwean citizens or organizations section 40C (h) and 40F, Zimbabwean organizations must be allowed to carry out voter education under the strict guidance of the ZEC. ERC is of the opinion that section 40F be removed.
C. Accreditation of Observers: Section 40H
Section 40G allows observers, including, foreign and international observers, to observe the electoral process. Section 40H goes on to provide that the Observers Accreditation Committee shall consider applications for accreditation as an observer. The application process for observed status is as follows:
Section 40I (3): The Chief Elections Officer shall without delay forward to the Observers Accreditation Committee all applications for accreditation that he or she has received…the Observers Accreditation Committee shall forthwith consider the applications.
The timelines for the consideration of accreditation are not clear, creating the risk of unnecessary delays in accrediting observers timously, enabling observes to be on the ground when the election process begins, and in particular the conduct of polling at the election. Observers might find their accreditation delayed to the extent that they are only able to observe the elections from the casting of votes.
Alternative
(i) There is need to set timelines for the accreditation of observers. Section 40I (1) may be amended to include the following: “An application for accreditation as an observer shall be made to the Chief Elections Officer, at any time after a call for elections had been made. Further, section 40I(3) must require that the Chief Election Officer shall, within 48 hours of receiving applications for accreditation, forward to the Observers Accreditation Committee all received applications for accreditation. The Observer Accreditation Committee must proceed to consider such applications within seven days.
(ii) Where the Commission intends to reject an application for accreditation, under section 40I (5), there must be a provision for an applicant whose accreditation has been rejected to be informed in writing of reasons for such rejection with 48 hours of the rejection. A similar notification to the applicant is provided for in South Africa’s Electoral Act 73 1998, section 84 (4)(b).
D. Postal Balloting Section 75 (1) (b), read with 70 (1) (c)
These new sections are to the effect that a postal voter shall have to send his/her marked ballot paper in an envelope marked “Ballot Paper Envelope”, on the back of which Envelope shall be written the name of the voter, his or her voter registration number and the constituency and ward in which he or she is registered. Such provisions raise serious concerns regarding secrecy of the ballot given the fact that the Chief Elections Officer receiving such ballot paper will be able to identify the manner in which a postal voter has voted through the marked Ballot Paper Envelope”
Section 23A (2) (a) provides that a Zimbabwean citizen has a right to vote “and to do so in secret”.
Alternative
There must be a system of postal voting that does not require a voter to write his name on a Ballot Paper Envelope, thereby violating secrecy of the vote. Instead the Commission can provide secret voting numbers to postal voters, which numbers are used to identify voters, rather than make use of their names.
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