Government’s New Electoral Amendment Bill – Election Watch 12/2017

Source: 23 September 2017Elections, Legislation

This Bill [link] was gazetted by Parliament in a Government Gazette Extraordinary on 18th September.  As the Bill was only sent to the Government Printer for preparation of proofs last Friday, 15th September, it is receiving top priority treatment from Parliament.

Parliament has Already called for Comments on the Bill

Another indication of the Bill’s priority status is that on 19th September Parliament circulated an invitation to submit written comments on the Bill [link to full text of invitation].  The last day for receipt of comments is Friday 20th October.

Comments can be submitted­­:

Requests for clarification may be addressed to Mr Johane Gandiwa, Assistant Clerk of Parliament, on gandiwaj@parlzim.gov.zw, or Fax: +263 4 252935, cell +263 -712 880010.

Further forms of public consultation to be announced

The invitation also gives an assurance that further forms of public consultation will be announced in due course.

Comment:  These further forms of consultation are likely to include countrywide public hearings and meetings with stakeholders by the National Assembly’s Portfolio Committee on Justice, Legal and Parliamentary Affairs.

The Bill Follows up Last Week’s Presidential Powers Regulations

Amending the Electoral Act

Although neither the Bill itself nor the explanatory memorandum published with it explain this, the purpose of the Bill is clearly to give a constitutionally sound basis to the process of making amendments to the Electoral Act instead of the questionable method of making them by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2017, Statutory Instrument [SI] 117/2017 of 15th September [referred to below as “SI 117”].   SI 117 was unpacked in Election Watch 11/2017 of 16th September [link].

Election Watch 11/2017 drew attention to Veritas’ firm opinion that the Presidential Powers (Temporary Measures) Act is inconsistent with the present Constitution and therefore became unconstitutional and invalid as soon as the Constitution came into full operation on 22nd August 2013 – thereby rendering any regulations made under the Act and anything done under such regulations open to a Constitutional challenge in the courts.  Furthermore, even if government were to contest this constitutional point, SI 117, gazetted under the Presidential Powers (Temporary Measures) Act, would expire after 180 days.  We concluded that there was an urgent need for a follow-up Act of Parliament to validate the changes made by SI 117 and give those changes a legally sound and more lasting foundation.

This Bill is the Bill for just such a follow-up Act.  Unfortunately there is no more to it.  It makes no provision for other amendments that many stakeholders still consider necessary to bring the Electoral Act into line with the Constitution and international best practice.

Outline of the Gazetted Bill

Explanatory memorandum

The explanatory memorandum gazetted with the Bill is a helpful document, in spite of its failure to mention the connection to last week’s regulations.  It sums up the objective of the Bill’s provisions as being­:

“to ensure the smooth registration of the new registration of voters proclaimed by the President by Statutory Instrument 109 of 2017 … which was mandated to begin on the 14th September, 2017, and to end on the 15th January, 2018”.

Note:  Statutory Instrument [SI] 109/2017 [link] was discussed in Election Watch 10/2017 [link].

The memorandum then goes on to explain the six clauses of the Bill.

Clause 1

This clause merely states the Bill’s short title [more accurately, the short title of the Act that will become law if Parliament passes the Bill and the President assents to it] – Electoral Amendment Act, 2017.

Clauses 2 and 3

– completion of claim forms

The explanatory memorandum treats these two closely related clauses together, which is fair enough.  They are identical to sections 2 and 3 of SI 117/2017.  The explanation given is that the clauses are intended to “facilitate and speed up” the voter registration process by allowing persons claiming registration to complete claim forms themselves, unless they specifically ask the assistance of a voter registration officer to complete it for them.

The memorandum states that the Zimbabwe Electoral Commission [ZEC] would like to make claim forms available even prior to registration day.  The Bill itself however does not place ZEC under a legal obligation to do this.  It is to be hoped, however, that ZEC will, as a matter of good administration, succeed in making claim forms available in advance.

–  transfer of registration to another constituency following change of residence

These provisions are exactly the same in the Bill as those in SI 117.

 –  candidates standing for election in constituencies in which they are not registered voters

These provisions are exactly the same in the Bill as those in SI 117; for their effect, see Election Watch 11/2017 [link].

Clause 4 – procedure for voter registration of voters to be the same for all claimants, including existing voters re-registering

Clause 4(1) of the Bill is identical to section 4 of SI 117.

It deletes subsections (3), (4) and (5) of section 36A of the Electoral Act, the section under which ZEC is re-registering existing voters.  The Bill’s explanatory memorandum describes these three subsection as “problematic provisions” because they excused persons previously registered as voters from certain aspects of the full registration procedure; the memorandum justifies the deletion by claiming that otherwise “some persons may refuse to submit to biometric registration, thereby compromising the integrity of the new voters roll”.  Now,  persons re-registering, as well as persons registering for the first time, will have to complete the claim form, produce proof of identity, citizenship and place of residence, and have their biometric features – fingerprints, photograph – taken.

Clause 4(2)

  Backdating of amendment 36A of the Electoral Act – clause 4(2) was not present in section 4 of SI 117.  It backdates to 14th September the deletion of the “problematic provisions” just discussed.  The Bill’s explanatory memorandum does not state why backdating was thought necessary.  The point of the backdating, however, is clear.  The new registration of voters was launched on Thursday 14th September, in accordance with the President’s proclamation [SI 109/2017 link] ordering the new registration in terms of section 36A of the Electoral Act.  On the morning of 14th September the President and other VIPs were registered on the new BVR voters roll at State House.  Later the same day – after 1 pm and five hours after the time given their invitations – invited guests were registered at another launch ceremony at the Rainbow Towers Hotel.

On 14th September, however, the “problematic” subsections (3), (4) and (5) were still part of section 36A – because SI 117, which temporarily deleted them, was not gazetted – and therefore did not come into force – until the following day, Friday 15th September.  The backdating, therefore, seeks to validate any failure to observe the problematic subsections on 14th September before SI 117 came into force.

Clause 5 – voter registration certificates not to be used for voting on polling day

This clause looks ahead to polling day next year.

Like section 5 of SI 117, the clause deletes a provision [a proviso to section 56(1)(b) of the Electoral Act] which previously allowed voters whose names, for whatever reason, did not appear on a polling station voters roll, to vote merely on production of his or her voters registration certificate or voters slip.  So, the effect of this clause is that, although persons registering as voters will still be given voters registration certificates [Electoral Act, section 26], come polling day a voters registration certificate will not entitle its holder to vote if his or her name does not appear on the voters roll.

The explanatory memorandum states the reason for this change as being that in the past voters registration certificates “have been alleged to have been misused or abused by disentitled voters”.   Or, as Election Watch 11/2017 put it, the widespread use of voters registration certificates in the July 2013 election was a major bone of contention, as they were easily faked and their use prompted many complaints of vote rigging and electoral fraud.

Clause 6 and Schedule – Minor amendments

These amendments are simply a cleaning-up exercise to correct minor omissions from the provisions of the Electoral Amendment Act [Act 6/2014] and the General Laws Amendment Act [Act 3/2016].

The explanatory memorandum correctly describes the effect as removing the last remaining references to the abolished posts of “Registrar-General of Voters” and “constituency registrar”.

The Electoral Act Still Needs Further Amendments

The Bill’s scope is limited.   It deals only with aspects of voter registration and one related matter.

Other important divergences between the Electoral Act and the Constitution still require attention – and these will be outlined explained in a subsequent Election Watch bulletin.  The necessary changes can be studied in Veritas’ draft Amendment Bill [link].

The task of bringing Zimbabwe’s electoral law into line with the Constitution and international best practice must be carried out thoroughly and needs to be done urgently.

Source: Veritas