Need for Stakeholder Input on Electoral Amendment Bill – Election Watch 18/2017

RED ALERT – Electoral Amendment Bill

The Bill could be Introduced in Parliament after both Houses resume on 31st October

This leaves a very short time remaining for lobbying and advocacy

As the Bill was gazetted over a month ago, it has now satisfied the Parliamentary Standing Order requiring at least 14 days to elapse between the gazetting of a Bill and its presentation [First Reading] in either the National Assembly or the Senate.  This means that the Minister of Justice, Legal and Parliamentary Affairs could give notice of his intention to introduce the Bill as soon as Parliament resumes on the 31st October.  As the Bill has seemed to be receiving priority from the Executive, the possibility of an early First Reading cannot be excluded.  There is still time, however, for lobbying and advocacy for improvements to the Bill and for stakeholder input, both before and after its First Reading.

Stakeholder Input

When the Bill was gazetted on 18th September, Parliament [and Veritas] circulated a notice inviting public submissions to be made for consideration of the relevant Parliamentary committees.  The closing date for submissions was Friday 20th October, but Veritas has contacted Parliament and they have agreed to extend the date and submissions can still  be made.

Written submissions on the Bill should be marked for the attention of the Portfolio Committee on Justice, Legal and Parliamentary Affairs [or, if appropriate, the Parliamentary Legal Committee – see below] and sent:

General submissions on the Bill should be marked for the attention of the Portfolio Committee on Justice, Legal and Parliamentary Affairs.  Submissions specifically on the constitutionality of the Bill should be marked for the attention of the Parliamentary Legal Committee.

Vague and general criticism of the Bill or political comments is unlikely to be effective.  What is more likely to be effective is a precise and concise statement of what the exact changes or additions you want made to the Bill, and why.

Constitution Requires Parliament to Involve Public on Bills and Ensure Consultations with Interested Parties

Section 141 of the Constitution provides that Parliament must:

  • facilitate public involvement in its legislative processes and in the processes of its committees
  • ensure that interested parties are consulted about Bills being considered by Parliament, unless such consultation is inappropriate or impracticable.

Will there be public hearings on the Bill?

Parliament’s invitation for written submissions on the Bill also said that “Further forms of public consultations will be announced in due course.”  Parliament has not yet, however, made an announcement.

For such an important Bill, however, there should be a series of public hearings around the country conducted by the Portfolio Committee on Justice, Legal and Parliamentary Affairs.

Call to MPs for Public Hearings

We are calling on MP’s, and in particular the Portfolio Committee on Justice Legal and Parliamentary Affairs, to see that public hearings are conducted.

Readers, please lobby your MPs to press for public hearings, backed by adequate resources and allocated sufficient time for the MPs involved in the process to make meaningful assessments of public opinion on such an important Bill.

Role of the Parliamentary Legal Committee

After its introduction [First Reading] the Bill will have to be referred to the Parliamentary Legal Committee [PLC] for a report on its constitutionality.

The brief of this committee includes examining every Bill after its introduction into Parliament and reporting to the House concerned “whether it considers any provision in the Bill, if enacted, would contravene any provision of the Constitution”.  The words “any provision” are important.  The PLC must measure a Bill not only against the provisions of the Declaration of Rights, but also against every other provision of the Constitution [remember that many of the constitutional provisions affecting elections are to be found outside the Declaration of Rights].

If the PLC forms the opinion that a provision in a Bill would contravene the Constitution, it issues what is called an “adverse report” explaining the reasons for its opinion.

If an adverse report is given by the PLC, the House receiving the report must promptly consider the report and vote on a motion, moved by the chairperson or a member of the PLC, that the report be adopted.  If that motion is approved, the Bill cannot be passed as long as it contains the offending provisions – unless the responsible Minister succeeds in persuading the Constitutional Court to make a declaration that the provision, if enacted, would be in accordance with the Constitution [Constitution, Fifth Schedule, paragraph 8].

Members of Public May Make Submissions to the PLC

The PLC has in the past considered written submissions from stakeholders, interested organisations and individuals contending that the committee should return an adverse report on a Bill due to come before it for consideration.  Anyone who wishes to make submissions to the PLC on this Bill may, therefore, do so – but should remember that the PLC’s role is limited to deciding on the constitutionality of the Bill’s provisions.  It is not for the  PLC to report on the any other than constitutional aspect of a Bill’s provisions; that would be outside its constitutional mandate.  Submissions should, therefore, be confined to legal argument and bear in mind that the majority of PLC member are lawyers.

Written submissions on legal and constitutional issues on the Bill should be sent to the email address given above or delivered to Parliament. marked for the attention of the Parliamentary Legal Committee – see below].

Submissions on other issues of content should be marked for the attention of the Portfolio Committee on Justice, Legal and Parliamentary Affairs, as mentioned above.

About the Bill

The Electoral Amendment Bill was gazetted on 18th September, in a Government Gazette Extraordinary.  It is available on the Veritas website [link].

The Bill came only three days after the gazetting of the temporary regulations the Bill is designed to confirm and replace – the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2017, Statutory Instrument [SI] 117/2017 [link].   [Veritas pointed out that all Presidential Powers (Temporary Measures) regulations can be challenged under the Constitution, but that at best these regulations only last for six months.]

The Bill is a near replica of those regulations; see Election Watch 13/2017 [link].

But these regulations have not proved satisfactory as the CSO observation of the Zimbabwe Electoral Commission [ZEC]’s BVR rollout has made glaringly apparent.  As the BVR rollout has proceeded over the last few weeks, it has become obvious that the scope of the Bill needs to be expanded as a matter of urgency to deal decisively with problems that have arisen.

For instance, in practice voter registration has frequently been hampered by ZEC’s enforcement of the current rules on voter registration, particularly the rule requiring proof of residence – leading to condemnation from all shades of the political spectrum, including the ruling party.  While this problem could be cured by an amendment to ZEC’s Voter Registration Regulations, a remedial amendment to the Electoral Act itself would be more satisfactory, and that could be achieved by Parliament’s making appropriate changes to the current Bill.

Scope of the Bill Should be Expanded

The Bill’s scope is extremely limited.   It deals only with a few aspects of voter registration and one related matter.  It does not tackle the many other defects in the Electoral Act, which include provisions that are not compliant with the Constitution.

Again, since the BVR blitz started there has been abundant evidence of intimidation of would-be claimants for registration and improper conduct by traditional leaders.  This has highlighted the need for more effective provisions in the Electoral Act to ensure that political parties and potential candidates are effectively penalised to bring such conduct to an end.

Other aspects of the Electoral Act also require correction to bring the Act into line with the Constitution’s provisions for elections.  The most important of them were listed in Election Watch 15/2017 of 25th September [link].  Veritas has also produced a draft Bill which, if adopted and passed by Parliament, would bring all the provisions of the Electoral Act into line with the Constitution.  The Bill can be accessed and downloaded from the Veritas website [link].

Source: Veritas

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