AMENDMENTS TO ELECTORAL ACT

To Give Effect to Proposals Contained in the Petition Submitted to
Parliament by the Election Resource Centre in September 2015

Drafted by Veritas

__________________

 

1.  Independence of zec

The following amendments to the Electoral Act [Chapter 2:13] would make the Zimbabwe Electoral Commission (ZEC) more independent:

(a)  Removal of Minister’s power to veto ZEC’s dismissal of its Chief Elections Officer

Section 9 (“Chief Elections Officer and other employees of Commission”) of the principal Act is amended by the repeal of subsections (4) and (5) and the substitution of—

“(4)  The Commission may terminate the appointment of the Chief Elections Officer on any ground justified by law:

Provided that the Commission shall terminate his or her appointment immediately if he or she becomes ineligible to be appointed as a Chief Election Officer in terms of section 240 or 320(3) of the Constitution.”.[1]

(b)  Removal of Minister’s power to prevent ZEC from obtaining non-governmental funds

Section 12 (“Funds and finances of Commission”) is amended in subsection (1) by the deletion from paragraph (e) of “which have been approved by” and the substitution of “which the Commission has accepted after consultation with”.

(c)  Removal of Minister’s power to veto regulations made by ZEC

Section 192 (“Regulatory powers of Commission”) of the principal Act is amended in subsection (6) by the deletion of “approved by the Minister and”.

2.  Political Environment

The preparation of codes of conduct for chiefs and members of the security services should be done in consultation with the National Council of Chiefs and the service commissions concerned.  Hence the codes should be enacted in regulations made by ZEC.  There should also be a code of conduct for civil servants, and this too should be enacted in regulations prepared after consultation with the Civil Service Commission.

The following amendments to the Electoral Act will achieve this:

Section 192 (“Regulatory powers of Commission”) of the principal Act is amended by the insertion after subsection (5) of the following subsections—

“(5a) The Commission shall by regulation prescribe—

(i)   codes of conduct to regulate the conduct and activities of traditional leaders, civil servants and members of the security services in relation to elections;  and

(ii)   penalties, not exceeding the penalties set out in subsection (2)(h), for contraventions of any such code of conduct.

(5b) When preparing a code of conduct in terms of subsection (5a) for—

(a)   traditional leaders, the Commission shall consult the National Council of Chiefs;

(b)   civil servants, the Commission shall consult the Civil Service Commission;

(c)   members of a security service, the Commission shall consult the Defence Forces Service Commission, the Police Service Commission or the Prisons and Correctional Service Commission, as the case may be.”.

3.  Voter REgistration and the Voters’ Roll

(a)  Removal of Minister’s unconstitutional power to make regulations for registration of voters

Section 18 (“Commission to register voters”) of the principal Act is amended—

(a)   in subsection (1) by the repeal of the definition of “former Registrar-General of Voters” and the substitution of—

““former Registrar-General of Voters” means the person who currently has custody and control of the rolls, databases and records which were in the custody and under the control of the Registrar-General of Voters immediately before the 1st July, 2016, being the date of commencement of the General Laws Amendment Act, 2016 (No. 3 of 2016);”;[2]

(b)   in subsection (2) by the deletion of “former Registrar-General of Voters, that is to say, such functions as were imposed or conferred upon”;

(c)   in subsection (5)—

(i)   by the deletion of “may, after consultation with the Commission and the former Registrar-General of Voters,” and the substitution of “, with the approval of the Commission and after consultation with the former Registrar-General of Voters, may”;

(ii)   by the repeal of paragraph (d).

Section 192 (“Regulatory powers of Commission”) of the principal Act is amended in subsection (2) by the insertion after paragraph (b) of the following paragraph—

“(b1)   automatic, electronic and additionally, or alternatively, biometric voter registration;”.

(b)  Biometric voter registration

The amendment to section 192, set out immediately above, will give the Commission power to make regulations for biometric voter registration.

It should be noted that the only way for ZEC to introduce biometric voter registration so as to capture biometric data for all registered voters, is to require all voters to register afresh under section 36A of the Electoral Act.  Merely calling on all voters to check their registration on the existing rolls, and capturing their biometric data when they come to inspect the rolls, will not achieve this because voters who do not turn up to inspect the rolls, and whose data are not captured, cannot legally be removed from the rolls.  Hence a new voters’ roll under section 36A is the only way to go.  Section 36A needs to be amended, however, because it allows existing voters to remain registered merely on producing proof of identity, and so presupposes the existence of an existing roll.  Also it does not require such voters to submit to having their biometric data taken.  The following amendments will rectify this:

“Section 36A (“New registration of voters”) of the principal Act is amended—

(a)   in subsection (1) by the deletion of “, on the advice of the Commission, may” and the substitution of “, whenever requested to do so by the Commission, shall”;

(b)   by the repeal of subsection (3) and the substitution of—

“(3)  A person who satisfies a voter registration officer that, immediately before the publication of a proclamation in terms of subsection (1), he or she was registered on a voters roll to which the proclamation applies shall be entitled to be registered on the new voters’ roll for the polling station concerned without completing a claim form:

Provided that—

(i)   where a system of biometric registration has been introduced in accordance with regulations made under section 192, the voter registration officer may take and record the person’s biometric and other particulars in accordance with those regulations;

(ii)   if the person wishes to be registered in a different ward or constituency, he or she shall make a claim for such registration as if he or she had not previously been registered.”;

(c)   by the repeal of subsection (5).

(c)  Residence qualifications, registration of disabled persons, etc.

Paragraph 1(2) of the Fourth Schedule to the Constitution allows the Electoral Act to prescribe residence qualifications for voter registration, but only “to ensure that voters are registered on the most appropriate voters’ roll”.  Also, the requirements must be “consistent with [the] Constitution, in particular with section 67” – and subsection (3) of section 67 provides that every adult Zimbabwean citizen has the right to vote in all elections and referendums.  Hence the residence qualifications cannot be such as to prevent voters from being registered on any roll.

The following amendments to the Electoral Act will ensure that residence qualifications, and the requirements of proof of residence, cannot be used to deny voters their rights under section 67 of the Constitution [The amendments will also correct anomalies in the sections concerned, and make them applicable to ward voters’ rolls as well as constituency rolls]:

“Section 23 (“Residence qualifications of voters”) of the principal Act is amended—

(a)   in subsection (1)—

(i)   by the insertion after “constituency” wherever it occurs of “or ward”;

(ii)   by the insertion of the following proviso, the existing proviso becoming proviso (i)—

“(ii)   if a claimant is qualified in terms of paragraph 1(1) of the Fourth Schedule to the Constitution to be registered as a voter, but is unable to satisfy a voter registration officer that he or she is resident in any particular constituency or ward, the claimant shall be registered in the constituency or ward within which he or she was born or in any other appropriate constituency or ward.”;

(b)   in subsection (2) by the insertion after “constituency” of “or ward”;

(c)   by the repeal of subsection (3);

(d)   in subsection (4) by the insertion after “constituency” wherever it occurs of “or ward”;

(e)   by the repeal of subsection (5).

Section 24 (“Claims for registration”) of the principal Act is repealed and the following is substituted—

24   Claims for registration

“(1)  Subject to this Act, any person who wishes to be registered as a voter on the voters’ roll for a constituency or ward shall present himself or herself at the appropriate registration office in order for the prescribed claim form to be completed on his or her behalf by the voter registration officer:

Provided that a claimant who, in accordance with proviso (i) to section 23(1), seeks registration in a constituency or ward in which he or she is not resident but for which he or she intends to be a candidate for election, shall lodge a claim form with the Commission and shall provide the Commission with an address in that constituency or ward where he or she shall be deemed to be resident for the purpose of any delimitation of constituencies and wards in terms of the Constitution.

(2)   If a voter registration officer is satisfied that a claimant is entitled to be registered as a voter on the voters’ roll for the constituency or ward in which he or she seeks registration, the officer shall—

(a)   enter the claimant’s name and other particulars on that voters’ roll;  and

(b)   where a system of biometric registration has been introduced in accordance with regulations made under section 192, take and record the claimant’s biometric and other particulars in accordance with those regulations.

(3)   If a voter registration officer is satisfied that a claimant is entitled to be registered as a voter on a different voters roll from the one on which he or she seeks registration, the officer shall—

(a)   forward the claimant’s claim to the voter registration officer for the constituency or ward in which the claimant was born or in any other constituency or ward which the first-mentioned officer considers to be the most appropriate one in which the claimant should be registered, and shall advise the claimant accordingly;  and

(b)   where a system of biometric registration has been introduced in accordance with regulations made under section 192, take and record the claimant’s biometric and other particulars in accordance with those regulations.

(4)   If, on receipt of a claim form from a claimant who, in accordance with proviso (i) to section 23(1), seeks registration in a constituency or ward in which he or she is not resident but for which he or she intends to be a candidate for election, the Commission is satisfied that it is appropriate for the claimant to be registered in that constituency or ward, the Commission shall direct the appropriate voter registration officer to enter the claimant’s name and other particulars on the voters’ roll for that constituency or ward.

(5)   For the purposes of this section, the Commission may prescribe documents that constitute proof of identity and additionally, or alternatively, proof of residence:

Provided that the prescribing of such documents shall not prevent a person from proving his or her identity or residence by other means.

(6)   Any person aggrieved by a decision of a voter registration officer or the Commission under this section may—

(a)   appeal to a designated magistrate in accordance with section 27;  or

(b)   lodge a complaint with the Commission in terms of section 190;  or

(c)   apply to the Electoral Court for a review of the decision in accordance with the rules of that court.

(7)   Notwithstanding any other provision of this section, where the Commission has made regulations in terms of section 192 for registering persons who are unable to present themselves at a registration office, including persons with disabilities, the procedure for the making of claims by or on behalf of such persons shall be as prescribed in those regulations.”.

Section 25 (“Claims for transfer of registration”) of the principal Act is amended—

(a)   in subsection (1)—

(i)   by the insertion after “constituency” where it occurs for the first and second times of “or ward”;

(ii)   in the proviso by the deletion of “as a member of Parliament in a constituency” and the substitution of “in a constituency or ward”;

(b)   in subsection (2)—

(i)   by the insertion after “constituency” wherever it occurs of “or ward”;

(ii)   by the insertion after “constituencies” of “and wards”;

(c)   in subsections (3) and (4) by the insertion after “constituency” wherever it occurs of “or ward”;

(d)   in subsection (5)—

(i)   by the insertion after “constituency” wherever it occurs of “or ward”;

(ii)   by the deletion of “Registrar-General of Voters” and the substitution of “Commission”;

(e)   by the repeal of subsection (6) and the substitution of—

“(6)       Any person aggrieved by a decision of a voter registration officer or the Commission under this section may—

(a)   appeal in accordance with section 27 to a designated magistrate for the province in which either of the constituencies concerned is situated;  or

(b)   lodge a complaint with the Commission in terms of section 190;  or

(c)   apply to the Electoral Court for a review of the decision in accordance with the rules of that court.”.

Section 33 (“Removal from voters roll on disqualification, death or absence”) of the principal Act is amended—

(a)   by the repeal of subsections (2) and (3);

(b)   by the deletion from subsections (4) and (5) of “or (2)”.[3]

Section 192 (“Regulatory powers of Commission”) of the principal Act is amended in subsection (2) by the insertion after paragraph (b1) of the following paragraph—

“(b2)   procedures for the registration as voters of persons who are unable to present themselves at a registration office, including hospital patients, prisoners, persons who are outside Zimbabwe, and persons with disabilities;”.

(d)  Voters registration certificates

To prevent the use of voters’ registration certificates to enable people to cast a vote even if they are not registered on a voters roll, the Electoral Act should be amended as follows:

Section 26 (“Voters registration certificates”) of the principal Act is amended by the insertion after subsection (2) of the following subsection—

“(3)  Notwithstanding any other provision of this Act, a voters’ registration certificate shall not entitle its holder to cast a vote in any election if he or she is not registered as a voter on the voters’ roll for that election.”.

(e)  Guaranteeing access to voters’ rolls

Section 21 (“Inspection of voters’ rolls and provision of copies”) of the principal Act is amended—

(a)   by the repeal of subsection (2) and the substitution of—

“(2)  A person inspecting a voters’ roll in terms of subsection (1) may, without removing the roll from the office where it is kept—

(a)   photograph or make a copy of the roll or any part of it;  and

(b)   make written notes of anything contained in it.”;

(b)   in subsection (3)—

(i)   by the deletion of “within a reasonable period of time” and the substitution of “without delay”;

(ii)   by the deletion of “ward or constituency”;

(c)   in subsection (6)—

(i)   by the deletion of “Within a reasonable period of the time” and the substitution of “Without delay”;

(ii)   by the deletion of “constituency” wherever it occurs;

(d)   in subsection (8) by the deletion from paragraph (b) of “makes use” and the substitution of “without the consent of the Commission, makes use”.

(f)   Closing of voters rolls before election

Section 26A of the Electoral Act states that voters’ rolls must be closed for new registrations 12 days after nomination day in any election.  This makes the nomination of candidates difficult (because there can be no definitive voters’ roll in existence on nomination day, so candidates’ nomination papers cannot be rejected on the ground that their nominators are not registered voters) and also makes it difficult for the Commission to give candidates their copies of voters’ rolls before polling day in terms of section 21(7) of the Act.  The section should be amended to restore the pre-2014 position, that voters’ rolls should be closed before nomination day:

Section 26A (“Closure of voters’ rolls 12 days after nomination day”) of the principal Act is amended by the deletion of “after” and the substitution of “before”.

4.  Voter Education

The petition pointed out that voter education is currently a virtual monopoly enjoyed by ZEC and infringes freedom of expression guaranteed by section 61 of the Constitution.  Furthermore, under section 40D(1) of the Electoral Act, ZEC is not obliged to provide programmes of voter education until after elections have been called.  Voter education should be continuous.

ZEC clearly must have power to prevent people giving voter education that is false, misleading or biased, but this can be achieved without infringing freedom of expression by requiring ZEC to monitor all voter education and to take measures to stop any voter education it finds to be false, misleading or biased.  This in fact is the role currently given to ZEC by section 40E of the Act.

The following amendments to Part IXA of the Electoral Act will limit ZEC’s role as suggested above and will require ZEC to provide voter education continuously:

Sections 40C (“Voter education by persons other than the Commission or political parties”) and 40D (Provision of voter education by Commission”) of the principal Act are repealed and the following section is substituted—

40C  Provision of voter education by Commission

“(1) The Commission shall provide programmes of voter education to ensure that, so far as practicable, voters understand electoral procedures and the ways in which they may exercise their right to vote.

(2) The Government shall give the Commission whatever assistance it may require in providing programmes referred to in subsection (1).

(3) Subsection (1) shall not be construed as preventing persons other than the Commission from providing voter education in accordance with this Part.”.

Section 40E (“Commission to monitor voter education by other persons”) of the principal Act is amended in subsection (3) by the insertion of the following proviso—

“Provided that, if the Commission believes on reasonable grounds that delay in giving a direction under subsection (1) will prejudice the efficiency or fairness of any election, the Commission may give the directive and then afford the person concerned an adequate opportunity to make representations as to why the direction should be rescinded.”.

5.  The Right to Vote

To give everyone the right to vote, as mandated by sections 67(3) and 155(2) of the Constitution, postal voting should be extended to everyone who will not be in their constituency on polling day.  The following amendments will achieve this:

Sections 72 (“Persons who may vote by post”) and 73 (“Application for postal vote”) of the principal Act are repealed and the following are substituted—

72   Persons who may vote by post

“(1) In subsection (2)—

“essential service” includes—

(a)   any hospital or medical service;

(b)   any transport service;

(c)   any service relating to the generation, supply or distribution of electricity;

(d)   any service relating to the supply or distribution of water;

(e)   any sewerage or sanitary service;

(f)   any service relating to the production, supply, delivery or distribution of food, fuel or coal;

(g)   any fire brigade;

(h)   communications;

(2) Where an election is to be held in a constituency or ward, a person who is registered as a voter on the roll for that constituency or ward shall be entitled to vote by post in terms of this Part if, on all polling days in the election, he or she will be unable to attend at a polling station in the constituency or ward because he or she—

(a)   will not be in the constituency or ward;  or

(b)   will be employed on an essential service;  or

(c)   will be on duty as a member of a disciplined force or as an electoral officer;  or

(d)   will be a patient in a hospital, clinic or similar place;  or

(e)   will be detained in prison;  or

(f)   is a person living with a disability;

or for any other reason that may be prescribed.

73   Application for postal vote

(1) A person who wishes to vote by post may apply to the Commission for a postal ballot paper in accordance with this section.

(2) An application for a postal ballot paper shall be—

(a)   in the prescribed form;  and

(b)   signed by the applicant and accompanied by such documents as may be prescribed;  and

(c)   delivered or sent so as to reach the Commission not later than the fourteenth day after nomination day in the election concerned.

(3) Where more than one election is to be held concurrently in a constituency or ward, a single application form may be used by applicants who apply for postal ballot papers in all those elections.

(4) The Commission shall ensure that application forms for postal ballot papers are available at all offices of the Commission in Zimbabwe and at all embassies and diplomatic or consular missions of Zimbabwe located in foreign countries.

(5) The Commission shall ensure that all applications for postal ballots received by it are numbered in consecutive order of receipt, and shall permit them to be inspected by members of the public, free of charge, until the declaration of the result of the poll, when they shall be dealt with in terms of section 70(3).”.

Section 74 (“Issue of postal ballot papers”) of the principal Act is amended in subsection (3) by the deletion from paragraph (c) of “the Ministry” and the substitution of “where the applicant is in the service of the Government outside Zimbabwe, the Ministry”.

6.  The Electoral Court

The following amendments to the Act will reconstitute the Electoral Court as a specialised division of the High Court and will make it decentralised:

Section 4 (“Interpretation”) of the Electoral Act [Chapter 2:13] (hereinafter called “the principal Act”) is amended in subsection (1) by the repeal of the definition of “Electoral Court” and the substitution of—

““Electoral Court” means the Electoral Division of the High Court constituted by section 161;”.

Part XXII (“Establishment, Composition and Rules of Electoral Court”) of the principal Act is repealed and the following Part is substituted—

“Part XXII

Electoral Court

161 Establishment and jurisdiction of Electoral Division of High Court

(1) There is hereby established a Division of the High Court, to be known as the Electoral Court, which shall have jurisdiction—

(a)   to hear appeals, applications and petitions in terms of this Act;  and

(b)   to hear any other matters relating to elections, including criminal cases arising out of elections;  and

(c)   to review any decision of the Commission or any other person made or purporting to have been made under this Act.

(2) Subsection (1) shall not preclude courts other than the Electoral Court from hearing—

(a)   criminal cases arising out of elections;  or

(b)   any other electoral matters which this Act or any other enactment specifically requires or permits such courts to hear.

(3) The Electoral Court may exercise the general jurisdiction of the High Court in any matter that is brought before it.

162 Assessors

(1)  The Chief Justice and the Judge President shall prepare a list of the names of at least ten persons who have knowledge or experience to act as assessors in matters before the Electoral Court, and who are otherwise suitable for appointment as such.

(2) The Registrar of the High Court shall, when so directed by a judge of the Electoral Court, choose as assessors at the trial of an election petition or other matter two persons whose names appear on a list prepared in terms of subsection (1).

(3) Before an assessor enters upon his duties for the first time, he or she shall take an oath before the Judge of the Electoral Court that he or she will faithfully perform his or her duties as a member of the Electoral Court.

(4) An assessor shall act in an advisory capacity only and shall not be entitled to a vote in the decision of the Electoral Court.

163 Sittings of Electoral Court

The Chief Justice in terms of section 47of the High Court Act [Chapter 7:06] shall ensure that—

(a)   for the purposes of a by-election, the Electoral Court sits within or as near as is reasonably possible to the constituency where the by-election is held;

(b)   for the purposes of a general election, the Electoral Court sits at as many places throughout Zimbabwe as is practicable.

164 Application of High Court Act to Electoral Court

Subject to this Act, the High Court Act [Chapter 7:06] shall apply to the Electoral Court as if it had been established in terms of section 46A of that Act.”.

7.  Accreditation of Election Observers

(a)  Extending and strengthening the functions of observers

At present observers are accredited for the “election period”, i.e. the period from the calling of the election to the end of polling.  Since general elections are now held at regular five-yearly intervals, so their approximate dates are known well in advance, there is no reason why observers should not be accredited well before elections so that they can observe the entire electoral process from voter registration to the post-election formation of new governments.  The following amendments will provide for this:

Section 40G (“Functions of accredited observers”) of the principal Act is amended—

(a)   in subsection (1) by the repeal of paragraph (a) and the substitution of—

“(a)   to observe the entire electoral process, including the registration of voters, the preparation and maintenance of voters rolls, preparations made for elections, the conduct of polling, the counting of votes and the declaration of results;”;

(b)   by the repeal of subsection (2) and the substitution of—

“(2)  The Minister, the Commission and all electoral officers shall take all necessary steps to ensure that—

(a)   accredited observers are provided with all facilities and information they may reasonably require;  and

(b)   generally, are able to exercise their functions under subsection (1).”.

Section 40J (“Limitation on number of observers”) of the principal Act is amended by the insertion of the following subsection, the existing section becoming subsection (1)—

“(5a)  When prescribing the number of observers for the purposes of subsection (1), the Commission shall bear in mind the need for polling and the counting and collation of votes to be observed by as many independent persons and organisations as possible to ensure that elections are peaceful, free and fair and conducted in accordance with the Constitution and this Act.”.

(b)  Making the Observers Accreditation Committee independent

Section 40H (“Observers Accreditation Committee”) of the principal Act is amended by the repeal of subsection (1) and the substitution of—

“(1)  The Commission shall establish a committee, to be called the Observers Accreditation Committee, consisting of—

(a)   the chairperson of the Commission, who shall be the chairperson of the committee;  and

(b)   the deputy chairperson of the Commission;  and

(c)   three Commissioners appointed by the Commission;  and

(d)   three other members appointed by the Commission after consultation with the Minister and the Ministers responsible for foreign affairs and immigration.”.

(c)  De-linking the accreditation of observers from the Executive

Section 40I (“Accreditation of observers”) of the principal Act is amended—

(a)   by the repeal of subsections (1) and (1a) and the substitution of—

“(1)  An application for the accreditation of an observer may be made at any time before the election that is to be observed, but not later than the fourth day before the first day of polling in the election.

(1a)  An application for the accreditation of an observer shall be made to the Commission by the person who wishes to be accredited or by any other person on his or her behalf.”;

(b)   by the repeal of subsection (4);

(c)   by the insertion after subsection (5) of the following subsection—

“(5a)  When considering applications for the accreditation of observers, and when fixing accreditation fees, the Commission shall bear in mind the need for all stages of elections to be observed by as many independent persons and organisations as possible to ensure that the elections are peaceful, free and fair and conducted in accordance with the Constitution and this Act.”.

 

8.  Delimitation

Section 160(2) of the Constitution gives ZEC the function of delimiting ward boundaries.  The Rural District Councils Act [Chapter 29:13] and the Urban Councils Act [Chapter 29:15], by contrast, give this function to the President and so are unconstitutional.  Both Acts obviously need to be corrected, but this would require extensive amendments which would probably be outside the scope of any Bill arising out of the petition.

Amendments to the Electoral Act, on the other hand, are within the scope of the petition.  Section 37B of the Act is based on the old Lancaster House constitution, which made the President responsible for fixing dates for delimitation exercises.  The section requires the President to consult ZEC before deciding on those dates.  Under the present Constitution the dates are fixed by ZEC itself, so the question of consultation does not arise.  The section should therefore be repealed, and the following amendment will do this:

Section 37B (“Commencement of delimitation of wards and constituencies”) of the principal Act is repealed.

 

 

[1] Section 9(4)(a) currently refers to provisions of the Sixth Schedule to the Act, which have been repealed or are no longer applicable.  This amendment will correct this and will also correct an anomaly in section 9(4), which obliges the Commission to terminate the appointment of its CEO if he or she breaches any condition of his or her service, even a relatively trivial one.

[2] This amendment and the following one (to subsection (2) of section 18) will remove the anomaly that the term “former Registrar-General of Voters” refers to an individual, namely Mr Mudede, and not to anyone else in his office who may currently be responsible for transferring records to the Commission and co-operating with the Commission.

[3] These amendments to section 33 are consequential on the amendment to sections 23 and 24, which remove the requirement for residence in a constituency.