[Bill-Watch] BILL WATCH 12/2014 of 4th March [The Electoral Amendment Bill -Part II]

[Veritas Bill Watch]

BILL WATCH 12/2014
[4th March 2014]
The Electoral Amendment Bill
Part II  Deficiencies in the Bill 
Deficiencies in the Bill
Some defects in the Bill have already been noted when outlining the Bill in
Part I, but there are also several important issues that are not dealt with
in the Bill; the Constitution requires some of these issues to be dealt
with:
Right to vote
In terms of section 67(3) of the Constitution, every adult Zimbabwe citizen
has the right to vote in all elections, and under section 155(2) the State
is obliged to ensure that all eligible citizens are registered as voters and
have an opportunity to vote.
The Bill does nothing to make it easier for citizens to register as voters
or to cast their votes - indeed, as pointed out earlier in Part I, it
actually disenfranchises electoral officers and members of the security
forces deployed on electoral duties.  Many other citizens remain unable to
exercise their democratic right to vote, in particular:
.      Members of the Diaspora:  Members of the Diaspora, even those who
remain registered as voters, cannot vote unless they return to Zimbabwe in
order to do so.  They cannot get postal votes, because under section 72 of
the Electoral Act, as amended by the Bill, the right to vote by post is
restricted to people who are outside Zimbabwe on government duty and the
spouses of such people.  The Bill makes no provision for voting facilities
to be provided at Zimbabwean embassies to allow members of the Diaspora to
vote in the foreign countries where they are living.
.      Hospital staff and patients:  Patients and key staff manning
hospitals and clinics, whether inside or outside Zimbabwe, cannot vote
because they cannot get postal votes and the Bill makes no provision for
them to cast their votes.
.      Prisoners:  Prisoners serving sentences of six months or more were
denied the vote under the old Lancaster House constitution, but under the
new Constitution all prisoners are entitled to it.  Once again, the Bill
denies them their right because it prevents them getting postal votes and
provides no facilities for them to vote in prison.
.      Other essential services staff: there is no provision for voting by
staff manning essential services, such as - railways, airways, etc..
It is arguable that section 72 of the Electoral Act, as amended by the Bill,
is unconstitutional in that it effectively denies the postal vote to most
Zimbabwean citizens outside Zimbabwe and to all citizens inside the country,
and provides no other facility by which those citizens who cannot go to a
polling station on polling day may cast their votes.
Voters' rolls
In terms of section 239 of the Constitution, ZEC is responsible for
registering voters and compiling voters' rolls [the Sixth Schedule to the
Constitution gave this responsibility to the Registrar-General, but only for
the 2013 general election].  Under the Electoral Act, on the other hand,
constituency registrars register voters, and they do so under the general
supervision and direction of the Registrar-General of Voters.  Effectively,
the Registrar-General controls the entire process by which voters are
registered and voters' rolls compiled and published.  The Bill does not
change this position.
The continued exercise by the Registrar-General and his officers of their
powers to register voters and prepare rolls is unconstitutional.  The Bill
should have remedied this and given the responsibility for voters rolls to
ZEC - and at the same time given  ZEC the resources to do so. 
Voter education
Section 239 of the Constitution gives ZEC the function of conducting and
supervising voter education.  The Electoral Act goes further and gives ZEC a
virtual monopoly over the provision of voter education [which the Act
defines as a course or programme of instruction on electoral law and
procedure].  Under section 40C of the Act no one except a political party
may provide voter education except in accordance with a programme furnished
or approved by ZEC, and the section imposes several other restrictions, such
as:
.      Everyone who provides voter education must be a citizen or permanent
resident and domiciled in Zimbabwe.
.      If the programme is funded from foreign sources, the funds must be
channelled through ZEC.
In its report on the 2013 general election, the Zimbabwe Human Rights
Commission noted that the definition of "voter education" was vague and
recommended that the distinction between voter education, voter information
and civic education should be clarified.  The Commission also urged ZEC to
work with a broad spectrum of civic organisations to ensure the widest
coverage of voter education.
The Bill does nothing to address the concerns expressed by the Human Rights
Commission.
Arguably, the restrictions which section 40C of the Electoral Act imposes on
the provision of voter education, and the monopoly it confers on ZEC, are an
unconstitutional limitation on freedom of expression.  At most, the
restrictions should go no further than empowering ZEC to prevent the
dissemination of false, misleading or partisan information under the guise
of voter education.
Independence of the Zimbabwe Electoral Commission [ZEC]
Section 235 of the Constitution emphasises that the Independent Commissions,
including ZEC, are independent and are not subject to the direction or
control of anyone.  In two important respects, however, the Electoral Act
places ZEC under the control of the Minister of Justice, Legal and
Parliamentary Affairs:
.      ZEC cannot accept funding from local or foreign sources unless the
Minister and the Minister of Finance have approved it [section 12(1)(e)].
.      Regulations made by ZEC have no effect unless they have been approved
by the Minister [section 192(6)].
These are both considerable limitations on ZEC's independence.  The Bill
does not remove them or alter them in any way.
The Electoral Court
Part XXII of the Electoral Act creates an Electoral Court as a separate
court with exclusive jurisdiction to hear electoral appeals, applications
and petitions, which means that no other court - not even the High Court -
may hear those cases.  The Act goes on to say that the Chief Justice must
appoint High Court judges to preside over the Electoral Court, and in 2013
he appointed all the current High Court judges to be judges of the Electoral
Court so that they could deal with electoral cases in addition to their
normal High Court work.
The Constitution allows courts such as the Electoral Court to be established
but in section 183 it prohibits people being appointed as judicial officers
to more than one court.  As a result, the appointment of High Court judges
to preside over both the Electoral Court and the High Court became illegal
as soon as the Constitution came fully into force on 24th August 2013.
Hence there are no longer any judges of the Electoral Court.
The Bill does nothing to remedy this very awkward situation.
Polling-station voters' rolls
In 2012 the Electoral Act was amended to provide for voters' rolls to be
based on polling stations.  The idea was that polling stations were to be
established at locations which would not be changed from one election to the
next.  Each polling station would have a specific area which it would serve,
and a voters' roll would be prepared listing the voters who would be
entitled to vote at that polling station.  Voters would not be allowed to
vote at any station other than the one on whose roll they were registered.
This amendment was stated to come into force on a date to be fixed by ZEC.
Up to now ZEC has not fixed a date, so the amendment is not yet operative.
The MDC-T party, which initially suggested the amendment, later changed its
mind and opposed it.  ZANU-PF was never enthusiastic about it.  The
amendment seems to have been forgotten by those responsible for preparing
the Bill, because some of the provisions of the Bill, and many provisions of
the Act, are inconsistent with it.
If, as seems likely, it has been decided not to proceed with polling-station
voters' rolls then the 2012 amendment should be removed from the statute
book.
General criticisms of the Bill
Generally the Bill is a shoddy piece of work with more than the usual number
of careless errors, some of which are serious.  The following are some
examples: 
.      The definition of "disciplined force" which clause 5 will insert in
section 4 of the Act refers to the Police Force and the Prison Service,
which under the new Constitution are called the Police Service and the
Prisons and Correctional Service.
.      In the same clause the new definitions of "metropolitan council" and
"provincial council" refer to incorrect sections of the Constitution;  the
definition of "metropolitan council" is nonsensical.
.      Clause 38 of the Bill repeals section 109 of the Act and inserts a
new section which duplicates most of the existing section 110  So there will
be two sections in the Act saying much the same thing [but not altogether
the same:  the new section 109 says that the chairperson of ZEC must
announce the results of a presidential election, whereas section 110 says
that the Chief Elections Officer must do so].  
.      The repeal of the existing section 109 means there will be nothing in
the Act to say what is to happen when two or more candidates are nominated
for election as President.  
.      Clause 44 of the Bill inserts a new section 129 into Part XVIII of
the Electoral Act, which deals with elections to local authorities;  the new
section requires a run-off election to be held if two or more candidates
receive an equal number of votes.  There is no similar provision for
parliamentary elections so the result of a "tie" in such an election will
continue, as at present, to be decided by the drawing of lots in terms of
section 66(2) of the Act.  There is no logical reason why parliamentary
"ties" should be decided by the luck of the draw whereas local authority
"ties" should be decided by a run-off election.
These errors can be corrected when the Bill is considered at the Committee
Stage in the National Assembly, but they should not have been made in the
first place.  They can be explained, at least partly, by the fact that the
Electoral Act has been amended so frequently and so extensively that it is
not easy to determine what its provisions currently are.
What is needed is a completely new Electoral Act, preferably prepared under
the supervision of ZEC in close co-operation with all the major political
parties in Zimbabwe.  If this were done, we should have a coherent electoral
law which might be regarded as legitimate by the parties contesting future
elections.
 
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