Alignment of laws with the Constitution

The Election Resource Centre (ERC) notes the encouraging position shared by the Minister of Justice, Legal and Parliamentary Affairs that all laws should be fully aligned with the Constitution by the end of 2019. The statement is encouraging in that previous efforts to compel such actions have largely gone unheeded.

In considering all realignment of laws with the constitution, the ERC insists that all efforts must be underlined by constitutionalism as a principle. Having fully constitutional laws on paper with no guarantees of constitutional conduct especially by institutions supporting democracy is inadequate. As such there is nothing stopping the state and all its institutions from implementing the constitution and disregarding laws that are inconsistent with the supreme law of the land (Section 2 (1) of the Constitution). The establishment of constitutional conduct is the first step towards constitutionalism.

In considering prioritization of laws to be fully aligned with the Constitution, the ERC further asserts that the Electoral Act, one of the legs on which our elections stand on, must be considered priority. Prioritization of elections will go a long way in proving sincerity of government towards real transformation given the cycle of disputed elections characterizing the country’s history.

Major issues for consideration around the full alignment of the Electoral Act with the Constitution include the independence of the Zimbabwe Electoral Commission (ZEC). Section 235 (1) (a) of the Constitution establishes that independent commissions are independent and not subject to the direction and control of anyone. Current provisions in the Act that subordinate the “independent” election management body to the Minister of Justice, Legal and Parliamentary Affairs on matters significant to the running of elections compromise the integrity of elections. ZEC must not be under the direction of any one especially members of the Executive if the body is to not only be independent but also seen to be independent. The matter of ZEC independence has been raised in numerous election observer reports of previous elections, in public hearings conducted by the Justice, Legal and Parliamentary Affairs parliamentary portfolio committee on the ERC petition on electoral reforms, in the ERC and ZESN petitions to Parliament and in stakeholder engagements hosted by the ZEC.

ZEC independence should be addressed through reviewing approval of regulations and procedures, accessing funding outside government support, inviting and accrediting observers and the hiring and firing of the Chief Election Officer.

Ignoring the question of ZEC independence in aligning all laws with the constitution would render the process of alignment futile in the context of strengthening democratic processes.

Other issues for consideration for full alignment of the Electoral Act with the Constitution include accessing the right to vote by Zimbabweans in the diaspora, those who could be in hospitals and those incarcerated. Section 67 (a) of the Constitution establishes the right to vote. In the previous 2018 elections, the ZEC could not register, let alone allow Zimbabweans in the diaspora to vote on the grounds that the Act did not make such provisions. The Electoral Act could enfranchise all Zimbabweans aged 18 years and above regardless of their where they are.

In terms of the voters’ roll, the Electoral Act must be aligned with Section 62 of the Constitution in relation to access to information held by the state. The voters’ roll must be an accessible document in line with international practices at all times especially in the context of voter registration being a continuous process.

With regards to voter education, further efforts must be made to strengthen access to election information by the voter in line with Section 67 (1) (b) of the Constitution. Citizens have a right to make political choices and for such a right to be fully exercised, restrictions around voter education have to be lifted without compromising the quality of information being availed or exposing the voter to misleading information. Such a balance is possible and has been explored in other jurisdictions.

Addressing the noted issues accompanied by measurable implementation of the revised provisions during by-elections to the satisfaction of the majority of election stakeholders will go a long way in breaking the cycle of disputed elections in Zimbabwe ahead of the 2023 harmonized elections.

Source: Election Resource Centre