Election Watch 11-2017 - Presidential Powers (Temporary Measures) Act Used to Amend Electoral Act

ELECTION WATCH 11/2017
[16th September 2017]
Presidential Powers (Temporary Measures) Act Used to Amend Electoral Act
The Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2017 were gazetted on 15th September in a Government Gazette Extraordinary [Statutory Instrument 117/2017, available on the Veritas website [link]].  The regulations came into force immediately.  
This bulletin explains the effect of the regulations.  
Amendments Affecting Voter Registration Procedures
Amendment of section 24 (1) of the Act – filling in claim forms to register on voters roll
Previously, section 24(1) of the Act said that every person wishing to be registered as a voter must go to the appropriate registration office and get an official claim form completed on his or her behalf by the voter registration officer.  This applied to everyone, even claimants well able themselves to complete the prescribed claim form satisfactorily. 
Now, the amendment substitutes a more sensible provision under which a person wishing to be registered as a voter must complete the official claim form and submit it to a voter registration officer at a voter registration centre.  As an exception to this general rule a claimant may request a voter registration officer’s assistance to complete the claim form and the officer must comply with that request.
Comment:  This change responds to civil society protests and suggestions made in the interests of speeding up the voter registration process.  
It should enable the Zimbabwe Electoral Commission [ZEC] to shorten the time taken to register those individuals who are capable of completing their own claim forms.  
Amendment of section 25 of the Act – claims forms for transfer of registration to another constituency
The regulations make corresponding changes to section 25 of the Act, which deals with claims forms for transfer of a person’s registration from one constituency to another.  
Now, the claimant may himself or herself complete the claim form for a transfer of registration.  Assistance, if it is needed, may be requested. 
Candidates standing for election in constituencies in which they are not registered voters
Candidates have always been allowed to stand for election in constituencies where they are not registered as voters, so long as they are registered on a roll somewhere, and candidates who want to change their registration so as to be on the voters roll of the constituencies where they are to stand have always been allowed to make that change, even if they do not reside in those constituencies.  The regulations will not alter either of these positions, but they will require candidates who want to make such a change to apply to ZEC direct [and not at a voter registration centre as used to be the case].
Note: A newspaper report has erroneously claimed that the amendments amount to effectively overturning Justice Bhunu’s 2015 ruling in Mliswa v Guzha that a candidate can lawfully stand for election in a constituency, even if registered as a voter elsewhere.  The amendments do not change the relevant constitutional and statutory provisions.  
Amendment of section 36A of the Act – procedure for registration of voters to be the same for all claimants
The regulations make an important amendment to section 36A of the Act, the section under which people who are already registered voters will be registered on the new voters roll, i.e., the new Biometric Voters Roll [BVR].   
The President has already issued a proclamation under section 36A requiring all people, even those who are already registered as voters, to register on the new voters roll.  This new roll will entirely replace the existing roll, which will no longer be used and will cease to be valid.  If they do not take action to be registered on the new roll, they will be unable to vote at the 2018 general election.  [As Election Watch 10/2017 of 8th September explained, it is only because of this proclamation that people already registered as voters need to register again.]
The effect of the present regulations is to make sure existing voters who re-register will have to go through exactly the same registration procedure as persons registering for the very first time.  It achieves this by removing three subsections of section 36A of the Electoral Act that previously would have allowed some existing voters to be registered on the new roll simply by proving their identity, but without providing proof of citizenship and proof of residence.  
Now, existing voters will have to prove identity, citizenship and place of residence just like those registering for the first time.
Comment: As section 36A stood before this amendment, there was a serious problem which needed to be sorted out before registration starts – as Election Watch 10/2017 pointed out.  It was this: the only way of checking whether those who claim to be already on a voters roll and produce their proof of identity, was by checking them against the existing voters roll.  But, strangely, ZEC has denied they have the old rolls.  If, and only if, ZEC does not have the existing voters rolls in usable form – and one may be pardoned for saying it is an extremely big “If”, given that ZEC was able to conduct the July 2013 general election and numerous subsequent by-elections – then this amendment may be an acceptable sorting-out of the problem.  Otherwise, it is an unnecessary imposition on those who are already registered voters and it will certainly complicate the BVR exercise by slowing it down.
Another Amendment: 
Abolition of Use of Voter Registration Certificates to Vote on Polling Day
Section 56 of the Electoral Act refers to what happens in polling stations on polling day in a general election, not to procedure for voter registration. 
Previously, the proviso to section 56(1)(b) of the Electoral Act provided for the situation where a would-be voter did not appear on the voters roll being used at the polling station but nevertheless held a voters registration certificate apparently showing that he or she was entitled to vote there.  This voter would be allowed to vote.  The amendment deletes this proviso entirely.  
Now, although voters registration certificates will still be issued to all those being registered as voters, when it comes to polling day a voters registration certificate will not be acceptable as proof of being registered as a voter where the individual concerned does not appear on the roll. 
Comment: This is a welcome amendment.  The use of voters registration certificates in the July 2013 general election was a major bone of contention, as the registration slips were easily faked and the basis of many complaints of vote rigging and electoral fraud.  
Minor Amendments
The regulations also make minor amendments which are listed in a Schedule at the end of the regulations.
Newspaper comments on these minor amendments have exaggerated their importance by suggesting that only now have all voter registration and election-related functions been transferred from the Registrar-General to ZEC.  In fact, those functions were transferred previously, if not by the 2013 Constitution, then by the Electoral Amendment Act [Act 6/2014] and the General Laws Amendment Act [Act 3/2016], and the transfer was not open to serious legal doubts, although there were a few corrections in terminology that were omitted at the time.  These minor amendments are merely a cleaning-up exercise rectifying the omissions in those two Acts. 
Follow-up Act Urgently Needed
It is unfortunate that the Government has seen fit to resort to the questionable authority of the Presidential Powers (Temporary Measures) Act to make these important changes to the electoral law [see further below for the view that the Act is unconstitutional and therefore invalid].  Having done so, the Government will now have to comply with other provisions of the Act:
The regulations must be laid before Parliament  Section 4 of the Act requires copies of all regulations made under the Act to be laid before Parliament not later than the eighth day on which Parliament sits after they were made, and allows Parliament to insist that the regulations be amended or repealed by the President.
The regulations expire after 180 days  Under sections 6 and 7 of the Act, the regulations will “expire and cease to have effect” after 180 days and the Electoral Act will revert to its pre-15th September wording.  Unless within that 180-day period an Act of Parliament provides otherwise, therefore, the amendments made by the regulations will disappear from the Act with effect from midnight on 14th February 2018 – well before the new BVR voters rolls can possibly be ready.    
A follow-up Act of Parliament to validate the President’s amendments is, therefore, urgently needed to give them a firm and more permanent foundation – and this is so whether the Presidential Powers (Temporary Measures) Act is regarded as invalid or valid.
Criticism of the Use of the Presidential Powers (Temporary Measures) Act 
Regular readers will not need reminding that the Veritas position is, and has been since 2013, that the Presidential Powers (Temporary Measures) Act is unconstitutional in its entirety and therefore invalid, making regulations under the Act also invalid.  But the  Government does not agree and it has continued to use the Act to gazette regulations covering a fairly wide range of controversial issues; it seems determined to treat the Act as valid law until a court decides otherwise.
So far, no one has launched a successful legal challenge to the Government’s position.  But it is believed that a current High Court application raises the issue.  
Reasons for the Veritas position are stated fully in Constitution Watch 1/2014 of 25th January 2014 [available from Veritas – link].  In brief those reasons are:
Giving the President sweeping power to enact regulations on anything which can be covered by an Act of Parliament – which is what the Act does – is a clear violation of the principle of separation of powers, even if the President’s regulations can be revoked by Parliament and expire after six months.
It is true that section 134 of the new Constitution allows Parliament to delegate power to make statutory instruments such as regulations but, unlike the old constitution, the section places severe restrictions on any such delegation, namely:
Parliament’s primary law-making power must not be delegated;
The Act under which the delegation is made must specify the limits of the power to make statutory instruments, as well as the nature and scope of the instruments and the principles and standards applicable to them.
The Presidential Powers (Temporary Measures) Act not only delegates primary law-making power to the President, but also fails to specify the nature and scope of regulations that may be made under the Act or the principles and standards applicable to them.  It is therefore unconstitutional and invalid.
For these reasons it is Veritas’ opinion that anything done under the present regulations is open to a Constitutional challenge. 
 

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