Parly’s role in electoral law reform


A very positive piece of news in the past few days was that negotiators from the three political formations had generally agreed on an election roadmap, with very few “sticking” points still to be resolved.

This follows the recent Sadc Troika meeting in Zambia that read the riot act on the three partners to implement the Global Political Agreement in full.

Completion of the constitution-making process and enactment of a good electoral law are some of the components at the centre of this election roadmap.

Parliament has a significant role to play in the process of coming up with a democratic people-driven constitution and amending the Electoral Act and the Zimbabwe Electoral Commission Act.

While electoral law reform on its own will not guarantee a free and fair election, it is absolutely a necessary condition.

In most cases, Parliament will spring into action when Bills are gazetted and introduced in the House.

The rules of procedure require that when a Bill is gazetted, it is referred to the relevant portfolio committee of Parliament to scrutinise and report back to the House.

It has become the norm for portfolio committees to conduct public hearings on the Bill and use the submissions to inform their own reporting to the House.

Those committees that have conducted well-organised public hearings and invited assistance from experts have always tabled well-informed reports for debate in plenary.

They also stand a better chance of convincing ministers to make substantive changes to the proposed law.

A recent good example is the Portfolio Committee on Local Government and that of Justice, Legal and Parliamentary Affairs which managed to influence substantive changes to the General Laws Amendment Bill.

The Parliamentary Legal Committee, which is mandated with the examination of the constitutionality of every Bill or Statutory Instrument, also weighed-in heavily in this matter.

The relevant portfolio committee for the Electoral Law Amendment Bill (which I understand will now combine amendments to the Zimbabwe Electoral Commission Act) is the Justice and Legal Affairs Portfolio Committee chaired by Douglas Mwonzora (MDC-T).

The committee should continue with the good work undertaken on the General Laws Amendment Bill and ensure that the Electoral Law Bill that will be passed by Parliament satisfies all the basic tenets of good law.

A good law is one that is constitutional, clearly drafted, complies with the rule of law; provides for due process, takes into account the need for separation of powers, has been drafted after consultation with interested groups and parties, is effective and has been drafted after an independent and accurate assessment of its impact would have been carried out.

The benefits of introducing a new law must outweigh the costs for it to be good law.

The Electoral Act is the main piece of legislation governing the electoral process. The main policy principles behind it fall under Section 3 which reads as follows:

Subject to the Constitution and this Act, every election shall be conducted in a way that is consistent.

The Act provides for the following, among others: secrecy of the ballot, the electoral process, electoral ethics and the conduct of political parties, conflict resolution and management, the voters’ roll and its preparation, delimitation of constituencies and the role of the Registrar General’s Office.

Members of Parliament, in particular the Justice, Legal and Parliamentary Affairs Portfolio Committee, must closely scrutinise provisions in this Act and determine to what extent they comply with the main policy principles behind the Act. And if the problem is enforcement, then the law makers must openly bring out these issues in the public domain for debate.

The Sadc Norms and Guidelines for Democratic Elections must be the main benchmarks used by members of Parliament during their work on electoral law reforms.

Then we have the Zimbabwe Electoral Commission (Zec) Act. As the electoral management body, Zec is one of the critical players in any election process and upon which the credibility of an election depends.

It is a successor to the Electoral Supervisory Commission, which was largely seen as an extension of the Executive in the administration of electoral matters.

Globally, the trend has been to create electoral management bodies that are independent in the true sense and are perceived as such by the public. It is in that spirit that the statute creating Zec needs attention to ensure that it is operationally and financially independent of the Executive.

An electoral management body must be established not because it is fashionable to do so, but because those are the dictates of a democratic dispensation. In consequence, it must be enabled to discharge its mandate fully without fear or favour.

The Justice Committee is urged not to simply wait for gazetting of Bills, but to begin to seriously scrutinise what exists at the moment and influence the drafting process.

There is nothing that stops committees from reviewing existing laws and recommending changes.

John Makamure is the executive director of the Southern African Parliamentary Support Trust writing in his personal capacity.