The General Laws Amendment Bill was gazetted on May 8, 2015 in a development that signals government’s intention to move with a bit of speed in aligning laws with the Constitution. While the Bill is welcome, it falls short of substantively amending the electoral law.
A Bill is automatically referred to the relevant portfolio committee of Parliament upon gazetting. In this case, the Bill has been referred to the Portfolio Committee on Justice, Legal and Parliamentary Affairs. The committee is required by section 141 of the Constitution to consult interested parties for their input before Parliament passes the Bill into law.
A general laws amendment bill in our context is an omnibus bill that carries within its body amendments to several pieces of legislation. The advantage of an omnibus piece of legislation is that it is a faster mechanism to get several bills reviewed as opposed to dealing with each of the statutes one by one. A general bill can effect changes to several pieces of legislation at one go, thereby saving on parliamentary time. It is one of the easiest routes for simple amendments.
However, the main disadvantage of an omnibus bill is that because several statutes are catered for, they may not each receive adequate attention. General bills can be used as a tool to disguise certain clauses from proper scrutiny. Critics see them as a vehicle to disguise the lack of political will for substantive policy change.
The General Laws Amendment Bill amends, amongst others, the following statutes: The Interpretation Act; Administrative Court Act; Parliamentary Pensions Act; Parliamentary Salaries, Allowances and Benefits Act; Presidential Pension and Retirement Benefits Act; The Privileges, Immunities and Powers of Parliament Act; The Electoral Act; The Criminal Law (Codification and Reform) Act, and The Trade Marks Act.
Because the Bill is a product of constitutional review, it carries some consequential amendments, arising from the changes to the designation of some institutions, offices or titles. For example, the creation of the office of the Prosecutor General means that all statutes making reference to the Attorney-General’s prosecutorial duties under the former Constitution must be changed to reflect the new institution. The Bill carries a number of such amendments.
While contributing to debate on the Electoral Amendment Bill in 2014, the Minister of Justice, Vice-President Emmerson Mnangagwa, advised Parliament that a thorough-going review of the Electoral Law was underway, and would be introduced in due course. Many people therefore expected amendments to the Electoral Act to come in the form of a separate Bill and not included in the General Laws Amendment Bill. The net effect of this is that we have piecemeal changes to the Electoral Act when we expected comprehensive changes as per the minister’s assurances to Parliament last year.
A very important change in the General Laws Amendment Bill is the transfer of voter registration and the custody and maintenance of the voters’ roll to the Zimbabwe Electoral Commission. This was previously performed by the Registrar-General’s Office which had repeatedly come under attack for a producing shambolic voters’ roll.
The proviso to this amendment is however worrisome. The proviso states that “provided that, consistently with section 239(j) of the Constitution, the Commission may give such instructions to the former Registrar-General of Voters…as will ensure the efficient, free, fair, proper and transparent conduct of any election or referendum”.
It would appear that the Registrar General is being empowered by the Act to perform a function that is exclusively for the Commission as per section 239 of the Constitution. It is submitted that this proviso may be used to dilute the impact of the new constitutional dispensation by ensuring that while technically the responsibility of managing the voters’ roll lies with the Commission, the reality on the ground would be that the Registrar General continues to run the show.
Section 40 C of the Bill provides for the conduct of voter education by persons other than the Commission. There is a requirement that the voter education materials used by the person, and the course or programme of instruction in accordance with which voter education is conducted, are adequate, current, correct and not misleading or biased in favour of any political party. This provision gives the Commission wider powers that are open to abuse.
Under section 72 of the current Electoral Act, a person who “will be outside Zimbabwe” on Election Day in the service of the State may apply for postal voting. It is proposed to delete the words “outside Zimbabwe”, thus opening the right to more categories of persons in the public sector. Postal voting has been an area of contestation in Zimbabwean elections, which may worsen as a result of this amendment.
A careful reading of the proposed changes does not seem to reflect the political will to ensure that the Zimbabwe Electoral Commission has total control of the electoral process. There is need to adequately resource the Commission so that it does not have to call upon other government departments to undertake functions that it has been fully empowered to perform by the Constitution. The lawmaker should not give the Commission a role with the right hand, only to take it away with the left hand.
The Portfolio Committee on Justice must seriously engage the Minister on these issues in order to strengthen the electoral process in Zimbabwe. An independent and adequately resourced electoral management body plays a pivotal role in that regard.
l John Makamure is the Executive Director of the Southern African Parliamentary Support Trust. Feedback: email@example.com