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“ 2018  Elections: Dialogue for Sustainable Democratic Elections in Zimbabwe
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Constitutionalism and Legal framework of election in Zimbabwe Identifying key gaps Ice Breaking reflection D emocracy without credible free and fair elections is implausible To date no acceptable substitute to elections has been found to express popular choice In other words ID: 657792 Download Presentation

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Slide1

“2018 Elections: Dialogue for Sustainable Democratic Elections in Zimbabwe.” Slide2

Constitutionalism and Legal framework of election in Zimbabwe Identifying key gaps. Slide3

Ice- Breaking reflectionDemocracy

without credible, free and fair elections is implausible. To date, no acceptable substitute to elections has been found to express popular choice. In other words, popular legitimacy to rule flows from the ballot box rather than the barrel of a gun. Elections are the building blocks of

democracy

but to serve that salutary purpose, they have to be both

substantively

free

and

procedurally

fair (Bratton, 2014, 183). Slide4

Democracy Good governance & electionsGood Governance brings

along with it respect

of human rights, the rule of law, effective people’s participation in

development

, as well as transparent and accountable processes and

institutions of democracy:

Demonstrable evidence for a commitment to

the universally

accepted

principles and pillars of

democracy should be non-negotiable in modern –day society

A system that embraces democratic

tenets and

strong democratic institutions that will stand the test of time

underpinned by a strong

legislative

framework is at the heart of sustainable principles of good governance and democracySlide5

The spirit of the Constitution in Electoral systems

Section 67: Political Rights:

free

, fair and regular elections

make

political choices freely

.

to form, to join and to participate in the activities of a political party or organisation of their choice;

campaign

freely and peacefully for a political party or cause;

participate

in peaceful political

activity

Subject to this Constitution

,

the right to

vote in all elections and referendums

(to

stand for election for public

officeSlide6

The spirit of the Constitution in Electoral processes/systems

Section 155 & Section 156

Citizen participation

Peaceful, free, fair

Free from violence and electoral malpractices

Simple, accurate, verifiable, secure and transparent voting system

Political tolerance

Accountability

Transparency

Regular free and fair elections

Neutrality and independence of state institutions supporting democracySlide7

The Electoral Act(2005) and the AmendmentsActs

25/2004

,

17/2007,

1/2008,

3/2012,

5/2014,

6/2014.

3

of

2016

Statutory Instruments

13B/2008,

43/2008,

96/2008,

85/2013.Slide8

Culture of piecemeal electoral amendments

the General Laws Amendment Act (No. 3 of 2016): The GLAA took an omnibus approach to amend and attempt to align 126 Acts with the

Constitution, including the Electoral laws:

Inevitable inadequacies in attention to Electoral laws: Misalignment of the constitution in some respect

the Electoral Amendment Act (No. 6 of 2014) and

the National Prosecuting Authority Act (No. 5 of 2014

] focusses on a narrow consequential amendment

SI 85/2013- Rushed through SI to facilitate 2013 elections: Legality questionable

After these amendments there are still significant shortcomings in the Electoral LawSlide9

ZEC: Sole mandate to conduct elections: Section 239Section

3 of GLAA

purportedly confers on the Zimbabwe Electoral Commission, the functions of the registration of voters and abolishes the office of the Registrar-General of voters.

However

The Section gives a substantial role to the office of the former Registrar-General of Voters, in his or her capacity as the

R-G of

Births and Deaths, the

R-G

of Citizenship and the

R-G & R-G

of National Registration.

This

is done, it is explained, “to ensure that their respective databases, as they relate to the eligibility or potential eligibility of voters, are in harmony with each other.”Slide10

ZEC: Sole mandate to conduct elections: Section 239 (cont.)

No such role for the RG in the Constitution

GLAA seems to retain the mischief that the Constitution sought to cure

Retention of

role for the abolished office of the registrar general,

albeit

referred to as the former

RGV.

RGV back through

the

backdoor

Its

retention even in a qualified role is astounding, given the troubled history of the RGV’s office and the role it has played in overseeing disputed elections in the past decade.

Crucially the import of the amendment is to bring back institutions that have clearly been made redundant by the constitution. Slide11

ZEC: Sole mandate to conduct elections: Section 239 (cont.)Section 18(4) of the Electoral Act as amended by GLAA is worrying:

It provides that, “The

Commission and the former RGV…… have a

duty to cooperate with each

other

to

ensure that their respective databases, as they relate to the eligibility or potential eligibility of voters, are in harmony with each other.

A

constitutionally entrenched

institution is placed

at the same level with the office of the Registrar

General and in certain respects, subjected to the authority of the office of the RGSlide12

RecommendationsThe law should reflect that ZEC has full and sole mandate of election processes

Provisions that misalign the constitution and create ambiguities in relation to the office of the RG should be revisited and clearly articulated to spell out roles

The RG has no role in election processes

ZEC as a constitutional body should not be subjected to authority of any other statutory/subsidiary bodySlide13

Right to VoteSection 67 (1) of Constitution provides that ALL citizens are entitled to political rights including the right to vote in free, fair and regular elections; this does not discriminate between citizens in or outside the country.

Section 1(1) of the Fourth Schedule to the Constitution places two qualifications to the right to vote:

a) Above 18

b) Zimbabwean citizen

Section 1(2)

of the 4

th

Schedule to the Constitution allows

for prescription of further requirements through a subsidiary

law, subject

to Section 67 ( Political Rights

)

Electoral Act does not provide for mechanisms for non-resident Diaspora citizens to register to vote and to cast ballotsSlide14

Right to voteGLAA

amends Section 72 of the principal Act and clarifies on who may vote by post. The Act now clearly limits this to the following categories:

(a) on duty as members of the disciplined office

(b) On duty as an electoral officer

(c) On Government duty outside Zimbabwe

(d) Outside Zimbabwe as the spouse of a person on Government

duty

What about the child of the person on duty? What about a Zimbabwean outside but not covered by the four categories?

What about

the infirm, the elderly and those

incarcerated

?Slide15

RecommendationsClarity on Diaspora vote

Section 72 of the Act potentially unconstitutional. May require further amendmentsSlide16

Voter RegistrationSection 239 of Constitution sets out some key functions of ZEC:

to register voters; to compile the voters’ rolls and registers; and to ensure the

proper custody

and

maintenance

of voters’ rolls and registers.

Electoral Law lags behind in providing for above functions

as it conflates some of these the

functions

with the office of

the Registrar-General of Voters and his

officials ( e.g. Section 18)

The shared responsibility where the Registrar-General in the electoral law may create problems in terms of accountability and independence of the

CommissionIt is ultra vires the constitutionSlide17

RecommendationSection 18 of Electoral Act should unambiguously give ZEC the sole mandate over voter registration, compiling voters’ roll & registers as well as proper custody and maintenance of the voters’ rolls/registers.

ZEC must create its own structures nationally and in the provinces and districts for its operations and have its own separate databases pertaining to the Voters' rollSlide18

Access to Electoral InformationSection 155(1)(d) of Constitution provides that all political parties and candidates in an election have reasonable access to all material and information necessary for effective participation;

2013 experience showed marked non-compliance with this provision;

no stakeholders had access to the electronic version of voters’ roll and printed copy only availed two days before polling.

MDC v. ZEC and the broken machine of the

RGV

Failure to avail necessary information undermines the validity and legitimacy of the electionsSlide19

RecommendationsElectoral Law must have clarity on provisions setting out measures to ensure access to voters information in accordance with Section 155 of the Constitution

Need for Clear provisions on consequences and remedies against failure to provide the voters roll when requested by interested parties in terms of the law.Slide20

The Biometric conundrumPresently, there is no biometric voter

registration (BVR)

leading to a biometric voters’ roll and biometric voting;

BVR

has been credited in other African countries (recently in Nigeria) for enhancing the effectiveness, accuracy and efficiency of a voting process.

ZEC has indicated that it is at advanced stages of implementing BVR

Currently no regulations on its operationalisationSlide21

RecommendationsNeed

for

regulations

that clearly articulate how the

(BVR)

system will be rolled out

Massive

voter education campaign on its use

Resourcing of the BVR system

Timely roll out of BVRSlide22

Minister’s role in electoral processes tantamount to interference

GLAA introduces a new

section 18(5) of the Electoral

Act that

gives the Minister power to make regulations, after consultation with the Commission and the former Registrar-General of Voters,

The

regulations may provide for the following:

(a) the manner of dealing with any confidential

information in

the custody of the former Registrar-General of

Voters and

the conditions under which it may be shared with

the Commission

; and(b) the resolution of any discrepancies between the records of the former Registrar-General of Voters and those of the Commission

; and(c) the resolution of any disputes whatsoever that may arise between the Commission and the former

Registrar-General of

Voters; and

(d) Mandatory automatic and electronic voter registration.Slide23

Minister’s role in electoral processes tantamount to interferenceFirstly such an intrusive power into information regarding the voters rolls amounts to interference with the mandate of a constitutionally mandated body.

These

powers are not supported by any constitutional

provision

Secondly

, from the reading of the provision the minister is given a free reign to come up with the regulations without taking into consideration

views

of the Commission, as confirmed by the use of the words, “after consultation.”

This

is bizarre considering that the regulations may affect the operations of ZEC, which is supposed to be an independent, impartial body.

The

minister is

not: He

is invariably a political contestant during an election period.

The Act cannot introduce provisions that potentially undermine the independence, impartiality and effectiveness of the CommissionSlide24

Minister’s role in electoral processes tantamount to interferenceThirdly the retention of the role of the RGV is

worrying pitted in a match against the Commission with the Minister as the umpire.

This is objectionable to the extent it is inconsistent with the Constitution.

As already pointed out above, there is no place for the RGV under the current constitutional dispensationSlide25

RecommendationsThe minister and the RGV should have no role in the management of elections.

Amendments to the Act should be brought and the minister should be stripped of any powers to legislate in election processes as an interested party

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 electionsSlide26

ZEC and Voter registrationGLAA introduces a new

section 19

to

the Principal Act

that clearly

spells out that voter registration shall be conducted by the Commission through its voter registration officers

The officers can be employees

of the Commission and who may be appointed to this office conjunctively with any other office as an electoral officer) or

any

persons whom the Commission may from time to time appoint to assist in voter registration

.

This to some extent

reflects the letter and spirit of Section 239 of the Constitution as it makes it clear that voters’ registration is to be Conducted by the Commission through its voter registration officers.

The

concern here is that the provision allows for the Commission to, ‘appoint persons from time to time to assist in voter registration’Slide27

RecommendationsIt may have been desirable to indicate certain requirements for such persons in order to ensure that they are persons who can impartially discharge such duties to the threshold set by the

Constitution.

For

example it would be undesirable to appoint persons who are in the security

sector

The often repeated problem of ZEC staff has to be decisively dealt with.Slide28

Boundary DelimitationSection 157 of the Constitution provides for delimitation of electoral boundaries every ten years soon after a national population census. This function is bestowed upon ZEC;

Last delimitation was done by the Delimitation Commission in 2007,

the last population census was in 2012 but no delimitation done since then

2013 elections used 2007 boundariesSlide29

RecommendationsIt is imperative for ZEC to carry out electoral boundary delimitation before the 2018 elections

Important that delimitation exercises be done as per the Constitution i.e. soon after the population census. Slide30

Code of Conduct for electionsThe Electoral Law provides for a Code of Conduct for political parties, candidates, and other persons participating in elections and referendums; First & Fourth Schedule of the Act

The law also provides for Multi-Party Liaison Committees (MPLCs) to enforce Code of Conduct and assist ZEC in managing inter-party conflict. ( Part XXIA) of the Act

Constitution also codifies several rules regarding the non-partisan role of institutions involved in running elections;(Section 155 & 156 of the Constitution)

Code of Conduct normally exists but is not seriously observed and no penalties for non-compliance.Slide31

RecommendationsNeed to bridge the implementation gap between the law and practice e.g. Code of Conduct exists but not seriously observed and no penalties for non-compliance.

MPLCs are sometimes set up but have no teeth and are hardly effective.

These are useful non-judicial platforms that could be effectively utilised by political parties if there is a consensus, to ensure an election is held in harmony Slide32

Filling proportional representation seatsNew Constitution and Electoral Law provides for proportional representation in Senate as well as for 60 seats reserved for women in the National Assembly.

However, there is a gap as there are no specific time-lines for filling vacancies that during the life of a given Parliament.

Section 39(3) refers to, “as soon as possible…

The result has seen many vacancies not filled for extended periods. Slide33

Recommendations“For the avoidance of doubt the electoral Law needs to fill the gap in the present legislation by specifying the time period within which vacant representation seats must be filled. Slide34

Devolution-provincial CouncilsChapter 14 is devoted to establishment of provincial and local government structures

Section 264 of the Constitution provides for devolution and election to Provincial Councils on party-list proportional representation system.

Devolution provisions not implemented – No enabling legislation and Provincial Councils not set up two years after 2013 elections.

Also gap in having no provisions for filling of vacancies and election of provincial chairpersons as provided for in Constitution Slide35

RecommendationsElectoral Law must provide for filling of vacancies and election of provincial, Metropolitan councils and chairpersons as provided for in ConstitutionSlide36

Election ObservationSection 239(i) of Constitution vests ZEC with sole responsibility for accrediting election observers.

Electoral Law at variance with Constitution in that it vests responsibility to multi-actor Observers Accreditation Committee that includes ZEC.

The OAC is packed with political appointees.

one

person nominated by the Office of the President and Cabinet;

one

person nominated by the Minister; and

one

person nominated by the Minster responsible for foreign affairs; and

one

person nominated by the Minster responsible for immigration.Slide37

RecommendationsImperative to align legislation to Constitution - Electoral Law must clearly invest ZEC with sole responsibility and function for accrediting election observersSlide38

Media accessSection 155 (d) of the Constitution provides that all political parties and candidates contesting an election must have fair and equal access to electronic and print media, both public and private.

However, the provision is routinely not observed, especially by public media and there is no effective enforcement mechanism – no mechanism for monitoring compliance and no consequences are specified for non-compliance.Slide39

RecommendationsElectoral Law reflects the constitutional position but the conduct and practice needs to align with the constitution as required by Section 2 & 44 of the ConstitutionSlide40

Elections ChallengesChallenging the validity of an election of a President or Vice-President by an aggrieved candidate is directed to the Constitutional Court within seven days of announcement of election results.

However, there is a lacuna as no procedural details are specified Slide41

RecommendationsElectoral Law or court rules should specify details of the procedures to be followed including issues relating to the admission of oral evidence and other related evidence to ensure a fair and just dispute resolution Slide42

Public complaintsConstitution (section 239(j)) mandates ZEC to receive and consider complaints from the public (e.g. over unequal media coverage during campaigns) and to take appropriate action; this seeks to reduce congestion of cases to regular courts (and attendant delays in dealing with them) as well as the costs involved.

Section 190 of the Act provides for the complaints mechanisms

However the “prescribed manner and procedure is not available”

Past experience shows little implementation of this provision.Slide43

RecommendationsElectoral Law should set out a clear public complaints handling mechanism by ZEC with clear enforceable powers that ZEC can exercise in dispute resolution Slide44

Electoral CourtThe Electoral Act provides for an Electoral Court as a separate court with exclusive jurisdiction to hear electoral appeals, applications and petitions. However, the judges are seconded to the Electoral Court from the High Court and the law bars them from presiding over both courts during the election period; this was not observed in the July 2013 elections. (See section 183 of the Constitution)

In the last elections, a prohibitive $10,000 deposit as security was set by the Registrar of the Court before each petition was to be heard. The high cost of filing petitions discouraged genuine challenges of an election outcome. Slide45

RecommendationsElectoral Law must ensure the appointment of judges to the Electoral Court who are not presiding over any other court during the election period.

The law should stipulate a maximum and reasonable amount payable as security deposit by aggrieved election contestants.

The Electoral Court, like other electoral institutions, should be adequately resourced to effectively perform its mandate.Slide46

Voter educationSection 239 of the Constitution provides for ZEC to conduct and supervise voter education (VE). Electoral Law provides that VE should be adequate, accurate and unbiased.

However, there is no clarity on distinction between VE, voter information and civic education.

Experience is that ZEC has not been able to fulfil this mandate due to financial and time limitations.

Section 40D-Commencement of VE time frames – not later than a week after proclamation or fixing of election dates. The time provided is inadequate for comprehensive and thorough VE.

ZEC function to provide VE not adequately funded by Government as provided for in law

Disabled e.g. visually impaired and the deaf – no law provides for their access to VE. Slide47

Voter educationThe amendment to section 40C present onerous requirement for voter educators:

Eg

.:

(

1)(i) adds the words, ‘current’ and ‘correct’. The words are open to various interpretation. What is meant by current? This provision may be used to disqualify various voter education material on the basis that it is not current.

- The provision that such voter education material should be submitted for scrutiny opens further challenges of material being held at the Commission with no approval being given, or approval denied on flimsy grounds by the CommissionSlide48

RecommendationsElectoral Law must make VE a shared function by providing for more players and stakeholders in a timely manner;

ZEC must be adequately funded for VE.

Authorities must consider having VE throughout the electoral cycle as is the case with voter registration.

Electoral Law should clarify definition of voter education in relation to voter information and civic education;

The law must provide for arrangements for VE for visually impaired and the deaf.

The laws must encourage voter education by other actors Slide49

Independence of Electoral CommissionSection 235 (1) (a) of Constitution guarantees the independence of constitutional commissions, including ZEC.

P

rovides for the protection of the independence, impartiality and dignity of the Commission.

ZEC not subject to the direction or control of anyone though accountable to Parliament; no person to interfere with ZEC’s functions.

Every Commissioner and ZEC staff member to perform their functions independently;

I

ndependence

seriously compromised by ZEC having to:

(a)

report to ‘parent’ Ministry of Justice, Legal and Parliamentary Affairs;

(

b)

Subjecting regulations made in terms of the Act and the Constitution to the approval of a minister before being promulgated ( Section 192(6)

(C) receive

funding from ‘parent’ Ministry and

not

directly from Consolidated Revenue

Fund

Requiring approval from minister on budgetary allocation and receipt of certain resources ( See section 12)Slide50

Recommendations

Electoral Law must provide for full autonomy of ZEC by:

(a) establishing an independent reporting mechanism e.g. to Parliament and not to a ‘parent’ Ministry;

Removing the role of the minister from promulgation of regulations by the Commission

(b) ensuring that ZEC gets funding directly from the Consolidated Revenue FundSlide51

Special voting: A fait Accompli?Not provided for either the Constitution or in Electoral Act.

Special Voting enables electoral officials and the security services on duty on Election Day to vote in advance.

Facility can be extended to party agents, observers, candidates and hospital staff thereby protecting their rights to vote.

The last experience in implementing this innovation was fraught with serious challenges resulting in 41% of those entitled to vote being disenfranchised.Slide52

RecommendationsParliament has two options. Either (a) to regularise Special Voting by providing for it in Electoral Law OR (b) reinstate postal voting.

Should Special Voting be retained, ZEC is to ensure that the legal, administrative and logistical arrangements are put in place before voting day.Slide53

Conclusion

In the absence of an urgent

genuine

multi-stakeholder, self-

introspective

,

reflective,

selfless

conversations followed up by a concrete plan of action to address the underlying challenges that undermine the whole electoral cycle, Zimbabwe is headed for another seriously contested, and possibly violent election with far-reaching negative political, economic and social consequences

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