ELECTION WATCH 7/2022
[23rd November 2022]
The Electoral Amendment Bill
Last Friday the Government published an Electoral Amendment Bill which can be accessed on the Veritas website [link]. According to the Bill’s memorandum, it will
“complete the alignment of [the Electoral Act] with the new Constitution as amended earlier this year”.
Which makes it seem an innocuous Bill, but appearances are deceptive: many of its provisions are not innocuous at all and some are downright unconstitutional.
Before analysing the contents of the Bill we should just mention a point we shall expand on later: the constitutional amendments that gave rise to this Bill are being challenged in the Constitutional Court, and if they are found to be invalid most of the contents of this Bill will be invalid also.
What the Bill will Do
The Bill sets out to do the following:
- It will stop the use of drivers licences as proof of identity by persons who register as voters and who obtain ballot papers at polling stations (clause 2(b))
- It will provide for the election of the ten youth members of the National Assembly referred to in section 124(1)(c) of the Constitution as amended in 2021 (clauses 4, 5 and 6)
- It will provide for the continued election of 60 women to the National Assembly under a party-list system (clause 4)
- It will provide for the election of women on a party-list basis to provincial councils and local authorities, which is permitted by section 277(4) of the Constitution as amended (clauses 4, 5 and 6)
- It will prevent persons from being nominated for election if they have been convicted of certain offences (clauses 7, 9)
- It will set a time-limit for the withdrawal of constituency candidates (clauses 8 and 10).
We shall deal with them in turn.
1. Use of Drivers Licences for Identification
Persons who apply for registration as voters (they are called claimants in section 24 of the Electoral Act) must satisfy a voter registration officer in terms of section 24(3) that they are entitled to be registered, which entails amongst other things satisfying the officer that they are citizens of Zimbabwe, and they can do that by production a birth certificate or other documentation showing they are citizens. In addition if asked, they must produce “proof of identity”, a term that is currently defined in the Act as including a passport, a national ID card and a drivers licence.
Clause 2 of the Bill proposes to remove drivers licences from the definition because they do not show the holders’ citizenship.
The amendment is unnecessary because, as we have said, claimants have to prove they are citizens of Zimbabwe and if their drivers licences do not provide such proof then they have to prove it in some other way. Section 24 of the Act does not suggest that proof of identity is the only document claimants must produce.
Not only is the amendment unnecessary in regard to voter registration but it may make things difficult at polling stations. Under section 56(3) of the Act voters must produce proof of identity at polling stations before they are given their ballot papers. At present they can produce their drivers licences, and it doesn’t matter if the licences don’t show their citizenship because the voters are only trying to prove their identity – they proved their citizenship when they were registered as voters. If the amendment is passed, voters who have a drivers licence but do not have a passport or national ID card will be unable to vote.
2. Youth Members of the National Assembly
In the next general election, ten youth members – persons aged from 21 to 35 – will be elected to the National Assembly, one for each of Zimbabwe’s provinces. This is laid down by section 124 of the amended Constitution.
- The Bill will amend the Electoral Act to provide for the election of these youths, but not very satisfactorily:
- No provision is made for some of the youths to be persons with disabilities, as required by the proviso to section 124(1) of the Constitution.
Parties will apparently have to present their complete party lists of youths to the nomination courts in every province, even though each province will elect only one of them. [This is the effect of the new section 45E(1)(c) which clause 6 of the Bill will insert in the Act] It means apparently that the nomination courts in every province will have to evaluate the candidacy of all the youths on the lists. It is not clear what will happen if the nomination of one or more youths is rejected by a nomination court in one province but accepted by a nomination court in another province.
3. Women Members of the National Assembly
The Bill makes provision for the continued election of 60 party-list women to the National Assembly, as required by section 124 of the amended Constitution. The Bill does not however take account of some new constitutional requirements:
- Ten of the women must be under the age of 35, i.e. they must be youths. The Bill does not require party lists to specify the ages of the women, so how will nomination courts know if this requirement is being met?
- Some of the women must be persons with disabilities. Again, the Bill does not require party lists to specify which of the persons being nominated meet this requirement.
4a. Women Members of Provincial and Metropolitan Councils
The Constitution Amendment (No. 2) Act published last year altered the composition of provincial and metropolitan councils, set out in sections 268 and 269 of the Constitution, so that they consist of:
- a chairperson
- the mayors or chairpersons of all the local authorities within the province, and
- ten women elected by a party-list system of proportional representation in which women with disabilities are included.
The Bill will provide for the election of the ten women members but, once again, it does not require party lists to specify which of the persons being nominated are disabled so it will be impossible for nomination courts to ascertain if the lists comply with the Constitution.
4b. Women Members of Local Authorities
Section 277(4) of the amended Constitution reads as follows:
“(4) An Act of Parliament may provide for the election, by a system of proportional representation …, of at least thirty per centum of the total members of the local council elected on ward basis as women.”
It is an incoherent provision, probably because it was added to the Constitution Amendment (No. 2) Bill during its confused Committee Stage in the National Assembly, but it seems to mean that an Act of Parliament may provide for additional women councillors, numbering at least 30 per cent of the other councillors, to be elected to local authorities on a party-list basis. The Bill provides for the election of these party-list women councillors, to constitute an additional 30 per cent of the membership of each council. All local authorities, from the largest to the smallest, will have these extra women councillors. This will mean that there will be a large number of women councillors who do not represent any particular ward and a considerable extra expense for councils.
The provisions for the election of these new councillors, set out in a new Part of the Eighth Schedule to the Electoral Act, are very complex and difficult for local authorities to understand.
5. Disqualification of Candidates Convicted of Certain Offences
Under section 129(1)(i) of the Constitution, Members of Parliament must vacate their seats if they have been convicted of an offence involving breach of trust, dishonesty or physical violence and sentenced to imprisonment for six months or more. Pursuant to this, the Bill will require candidates to disclose in their nomination papers whether in the preceding 12 months they have been convicted of such an offence (which the Bill calls a “disqualifying offence”) and sentenced to six months’ imprisonment or more. The reason for requiring them to do so is explained in the Bill’s memorandum:
“For the sake of consistency, it is proposed that persons who would be disqualified from continuing as MPs for committing such an offence should not also be allowed to stand as candidates for election.”
The Bill itself does not say that candidates will be disqualified if they disclose such a conviction, but it clearly implies that they will be.
The problem here is that the qualifications and disqualifications for election to Parliament are laid down in the Constitution, and it is not possible for an Act of Parliament to add further disqualifications.
Sections 121 and 125 of the Constitution state that persons who are registered as voters and are at least 40 years old (in the case of Senators) or 21 years old (in the case of Members of the Assembly) are qualified for election as Senators and Members of the National Assembly respectively unless:
- they are disqualified under the Fourth Schedule to the Constitution for registration as voters [i.e. if they are detained under a law relating to mental health, or have been declared unfit to manage their affairs, or have been convicted of certain electoral offences], or
- “within five years before the election they vacated a seat in the Senate or the National Assembly in terms of section 129(1)(i) through having been convicted of an offence”.
No other disqualifications are specified and no provision is made for further disqualifications to be added. Hence no further ones can be added.
Under sections 121 and 125 of the Constitution a person will be debarred from standing for election on the ground that they committed a “disqualifying offence” only if:
- they were a Senator or Member of the National Assembly, and
- within the preceding five years, they had to vacate their seat after being convicted of a “disqualifying offence”.
So if, as the Bill suggests, any candidate who discloses a “disqualifying offences” is going to be barred from nomination, then the Bill is imposing an unconstitutional disqualification or barrier against election.
6. Time-limit for Withdrawal of Constituency Candidates
Under section 49 of the Electoral Act, candidates standing for constituency seats in the National Assembly can withdraw at any time before polling day, simply by sending a written notice to the constituency elections officer. When a candidate withdraws, the “nomination officer” (it should be elections officer”) must do whatever is practicable to bring the withdrawal to the notice of voters.
The Bill proposes to make this more formal:
- candidates will not be allowed to withdraw less than 21 days before polling
- notices of withdrawal will have to be sent to the Chief Elections Officer of the Zimbabwe Electoral Commission [ZEC], and
- The chief elections officer will have to publish a notice of the withdrawal “in all newspapers of mass circulation in Zimbabwe”.
What If the Constitutional Amendments are Invalid?
The avowed purpose of the Bill is to bring the Electoral Act into line with recent constitutional amendments, specifically those made to the Constitution by the Constitution of Zimbabwe Amendment (No. 2) Act of 2021 [link]. As we mentioned at the beginning of this bulletin, that Act, as well as an earlier Constitutional Amendment Act, is being challenged in the Constitutional Court by several organisations including the Law Society and Veritas, on the ground that its passage through Parliament violated the Constitution.
If, as we confidently expect, the Constitutional Court finds that the two Amendment Acts were invalidly passed then the Constitution must be regarded as never having been amended. In that event most of the provisions of this Electoral Amendment Bill will fall away – in fact they will become unconstitutional. For example, the provisions for electing youth members of the National Assembly will be inapplicable because the unamended Constitution did not provide for youth members; the same goes for the women members of provincial councils and local authorities.
It might be better if the Bill’s introduction into Parliament were delayed until the Constitutional Court has ruled on the validity of the amendments to the Constitution, and it is to be hoped that the Court’s ruling will not be delayed.
The Bill is not a good one, as we have shown in this bulletin. It fails in its purpose of aligning the Electoral Act with the amended Constitution, even assuming that the constitutional amendments are valid, and some of its provisions actually violate the Constitution. Perhaps more consultation with political parties and civil society when the Government was drawing up the Bill would have helped remove some of its defects.
More consultation might have also have resulted in a Bill that addresses some real issues of concern, such as:
- strengthening the independence of the Zimbabwe Electoral Commission
- ensuring the registration of all citizens eligible to vote, including prisoners and members of the Diaspora
- introducing transparent procedures for the preparation and distribution of ballot papers
- ensuring that the public news media give fair and equal coverage to all political parties contesting elections
- enforcing lawful and ethical conduct by political parties during elections
- ensuring that chiefs are non partisan
- providing for the effective resolution of electoral disputes and challenges
- aligning the Electoral Act with international instruments such as the African Charter on Democracy, Elections and Governance and the Charter of the Commonwealth.
In the wake of the recent visit by a delegation to assess if Zimbabwe is eligible for readmission to the Commonwealth, we note that the first of the values listed in the Charter of the Commonwealth is democracy:
“the inalienable right of individuals to participate in democratic processes, in particular through free and fair elections.”
The Bill does little or nothing to uphold that value.