Proposed law changes ignore major issues

The proposed amendment to the Electoral Act falls far short of what is required and is still in breach of the Constitution, says the constitution watchdogVeritas. Zimbabweans in the diaspora are still denied the right to vote unless they return home to do so.

Zimbabweans in the diaspora are still denied the right to vote unless they return home to do so.
Zimbabweans in the diaspora are still denied the right to vote unless they return home to do so.

The General Laws Amendment Bill [GLA Bill], which is supposed to align Zimbabwe’s laws with the new constitution, will soon be presented to Parliament. The only major substantive amendment it makes is to transfer responsibility for voter registration and voters rolls to the Zimbabwe Electoral Commission [ZEC].

It also contains two further minor amendments:

1. A mistake was made in section 72 of the Electoral Act when special voting for election personnel was abolished. The postal vote was given only to government officials including defence personnel and spouses if they were outside the country on election day. This resulted in election officers on duty inside the country being unable to vote at all. This mistake is corrected in the GLA Bill.

2. Some duties which the Electoral Act confers on the Chief Elections Officer will be transferred to the Commission.

The following important alignment issues are not dealt with by the GLA Bill:

The Right to Vote

Under section 67(3) of the Constitution, every adult citizen has the right to vote in all elections. The Bill does nothing to change the provisions of the present Act which denies the vote to citizens in the following classes:

• Members of the Diaspora

Under section 72 of the Electoral Act, the only people outside the country who are entitled to a postal vote are those who on polling day will be outside the country on official Government duty. Hence the large numbers of Zimbabwean citizens in the Diaspora cannot vote at all. The Act makes no provision for voting at special polling stations in Zimbabwean embassies and consulates abroad, which is a solution to this sort of problem used by other countries.

Although in theory Zimbabweans living elsewhere can return to Zimbabwe to cast a vote in the ordinary way, only very few are able to do so — meaning that the majority of Zimbabweans in the Diaspora are effectively denied the right to vote. This is in breach of the Constitution.

• Prisoners

Unlike the Lancaster House Constitution, the present Constitution does not deny prisoners the right to vote; hence, under section 67(3) if they are citizens they are entitled to do so. the Act, however, denies them this right because it prevents them from accessing the postal vote and makes no provision for prisoners.

• Hospital patients

People who are hospitalised, whether inside or outside Zimbabwe, cannot exercise their right to vote because they cannot access the postal vote, and the Act makes no special provision to enable them to cast their votes in hospital.

ZEC cannot be left to handle these problems administratively, without amendments to the Act. Section 155(2) of the Constitution provides that the State “must take all appropriate measures, including legislative measures, to ensure that every citizen who is eligible to vote has an opportunity to cast a vote and must facilitate voting by persons with disabilities or special needs.” The Act must cover these matters expressly.

ZEC’s Monopoly

Section 239 of the Constitution gives ZEC the responsibility of conducting and supervising voter education. Part IXA of the Electoral Act [sections 40A to 40F] goes much further. It gives ZEC a virtual monopoly over the provision of voter education and imposes several additional restrictions on its provision by other stakeholders. This monopoly and the additional restrictions are probably unconstitutional in that they restrict freedom of expression, which is protected by section 61 of the Constitution.

Although the GLA Bill is not completely silent on voter education, the proposed amendment to section 40C of the Act merely adds yet another restriction on the provision of voter education by organisations other than ZEC. It requires those wishing to provide voter education to furnish their voter education materials and course of instruction to ZEC for scrutiny at least 28 days before they intend to use them. This is not explained or even mentioned in the Bill’s explanatory memorandum.

Legitimisation of

Electoral Court

Sections 161 and 162 of the Electoral Act constitute the Electoral Court as a court separate from the High Court, although staffed by judges of the High Court assigned to the Electoral Court by the Chief Justice. This continues a long-standing arrangement that seems to have proved satisfactory in the past – when there was no constitutional objection to it.

Now, however, section 183 of the Constitution states that judges cannot be appointed to sit in more than one court. This means that High Court judges cannot be appointed to sit in the Electoral Court. The High Court judges who have been appointed to the Electoral Court have been sitting unconstitutionally and hence invalidly since the advent of the new Constitution in August 2013. This situation should be ended forthwith.

One solution would be to appoint qualified legal practitioners as judges of the Electoral Court. If that is not acceptable to Government then, as pointed out in Constitution Watch 6/2015, the simple remedy is to re-create the Electoral Court as a specialised division of the High Court. Whichever solution is adopted, it is essential that this aspect of the Electoral Act be dealt with as soon as possible, says Veritas.

Donations

ZEC’s constitutional independence, guaranteed by section 235 of the Constitution, is infringed by the present wording of section 12 of the Electoral Act, which requires ZEC to get approval from the Minister of Justice, Legal and Parliamentary Affairs before accepting any donation. The Minister is given an absolute discretion whether or not to approve a donation. Ministerial approval — if it has to be obtained at all — should be refused only if acceptance of a particular donation would impair ZEC’s independence or be contrary to the public interest, and Parliament should be promptly informed of every refusal.

Under sections 160 and 161 of the Constitution, ZEC has responsibility for fixing the boundaries of wards as well as the boundaries of constituencies.

Ward Boundaries

Provisions in the Urban Councils Act and Rural District Councils Act clash with this by vesting responsibility for fixing ward boundaries in the President and Minister responsible for local government.

It is essential that the relevant provisions of these two Acts be amended to bring them into line with the Constitution. The GLA Bill contains no such amendments.

Section 37B of the Electoral Act still envisages the President fixing the date for delimitation of constituencies. This is inconsistent with section 161(1) of the Constitution under which ZEC itself fixes the delimitation date. Section 37B of the Electoral Act should be repealed.

Postal Voting

The GLA Bill will allow security force personnel who are engaged in election duties to cast a postal vote if they cannot vote in their own constituencies. The Bill does not provide any safeguards to ensure that their votes are cast freely and fairly and without intimidation by their superior officers, nor does it provide adequate safeguards to ensure their votes are sent to the constituencies in which they are registered.

Election of President and Vice-Presidents – A new Electoral Act should include provision for the election of the President and Vice-Presidents under the new system envisaged by section 92 of the Constitution, which requires a Presidential candidate to nominate two persons to stand for election jointly with him or her as Vice-Presidents. Section 92 will not come into effect until 2023, and until then the appointment of Vice-Presidents is covered by transitional provisions in paragraph 14 of the Sixth Schedule to the Constitution — i.e. the President appoints Vice-Presidents after his or her election. The GLA Bill makes no provision for a new procedure to give effect to section 92 of the Constitution when it eventually comes into force. The omission is understandable because it is a matter which can be dealt with later, but at some stage it will have to be tackled.

Unless the Bill is amended during its passage through Parliament to deal with these issues, the Electoral Act will remain inconsistent with the Constitution. – Veritas: email [email protected] ; www.veritaszim.net

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