The recently amended Electoral Act will have to be revised again to conform to the electoral provisions of the new draft constitution once it has been adopted as the new supreme law of Zimbabwe.
In the House with John Makamure
The amended Electoral Act was signed into law by the President on September 28 2012 after being passed by Parliament on July 19 2012. The Electoral Act is the most important piece of legislation governing the electoral process.
It is pleasing to see a provision in the draft constitution which now outlaws amendments being made to the Electoral Law, or to any subsidiary legislation made under that law, unless the Zimbabwe Electoral Commission has been consulted and any recommendations made by the Commission are duly considered.
This provision dilutes the powers of Justice minister to draft electoral legislation and promotes a consultative process with the electoral management body.
While the electoral law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters’ roll, the draft constitution says any such requirements must be consistent with the Constitution, in particular with Section 67.
This Section gives every Zimbabwean citizen the right to free, fair and regular elections for any elective public office established in terms of the Constitution or any other law; to make political choices freely; to form, to join and to participate in the activities of a political party or organisation of their choice; to campaign freely and peacefully for a political party or cause; to participate in peaceful political activity; and to participate, individually or collectively, in gatherings or groups in order to influence, challenge or support the policies of the government or any political party.
The amended electoral law may have to incorporate provisions of the Referendums Act.
Section 157 of the draft constitution says an Act of Parliament must provide for the conduct of elections and referendums to which the Constitution applies. This implies a single Act of Parliament being promulgated.
Much, however, will depend on how the “referendums to which this Constitution applies” will be interpreted.
Provisions on the electoral system will need amendment to allow for the election of senators and the additional 60 seats reserved for women in the National Assembly through a system of proportional representation.
Section 66 of the current electoral law prescribes the winner-take-all or first-past-the-post system for elected Members of Parliament.
The electoral law will have to specifically provide for the election of representatives of persons with disabilities. There is currently no provision relating to the same.
In addition to providing for the conduct of “general, presidential and local elections” (Section 38 of the Electoral Act), the electoral law will also have to provide for the conduct of elections to provincial and metropolitan councils.
The reckoning of timelines from the time a proclamation is issued and the polling day will have to be amended to tally with Section 157(3) of the draft constitution, which provides that The Electoral Law must provide for the nomination of candidates in any election to take place at least 14 days after the election was called and thirty days before polling in the election.
The timeline prescribed in Section 157(3) applies to “any election”. This should clear the timeline confusion created by the wording of Section 38 of the Electoral Act as amended by Clause 11 of the Electoral Amendment Act.
In addition to the above, the issue of gender balance may also need to find accommodation in the electoral legislation. Section 17 of the draft constitution enjoins the State to ensure full gender balance and the full participation of women in all spheres of existence in Zimbabwe.
It is a given that despite their demographic representation, women constitute a minority in terms of political office representation.
To the extent that the Constitution directs State agencies to take practical measures to ensure a reversal of gender discrimination, it is submitted that the electoral law is a good starting point for this reform process.
Regional representation is one of the issues. Section 18 of the draft constitution provides for fair regional representation in all State institutions. The electoral law could also make provision for this, in order to give life and meaning to the constitutional direction.
While it is acknowledged that the current electoral legislation endeavours to provide for free space for political activity, it is submitted that it may need further tightening in order to give life to provisions under Section 67 of the draft constitution which outline political freedoms and rights.
If it does not do so, the provisions will just be a facade. The Constitution provides for a multi-party democracy. In consequence, undemocratic practices must not find expression in the culture of political parties or organisations in Zimbabwe.
Consequential provisions will need incorporation into the electoral legislation to cater for the election of the President and Vice-Presidents as provided under the draft constitution. The current Constitution had a different set-up for election into these offices.
There are obviously other areas that will need attention to ensure that the electoral laws are in sync with the Constitution, as all laws must comply with the national charter. Parliament, therefore, still has a lot of work to do to align several laws (some of them bad laws) with the new supreme law. The bad laws include Access to Information and Protection of Privacy Act, Public Order and Security Amendment Bill and Broadcasting Services Act, among others. These laws infringe on freedoms to do with association, expression and movement, which are basic rights enshrined under the expanded Bill of Rights in the new Constitution.
John Makamure is the Executive Director of the Southern African Parliamentary Support Trust writing in his personal capacity. Feedback: