There have been persistent calls for electoral law reform as the nation awaits harmonised elections, which constitutionally should take place between July 22 and August 22 this year unless Parliament dissolves itself earlier.
By John Makamure
Given that the legal framework is a necessary condition for free, fair and credible polls, those calling for electoral law reform are therefore fully justified. They are simply reiterating what the Constitution says. Section 155 of the supreme law requires the State to take all appropriate measures, including legislative measures, to ensure peaceful, free and fair elections. While in general the current electoral law is a good piece of legislation which has suffered from poor enforcement, there is still need to address some weaknesses in the law in order to prevent a contested electoral outcome.
I am of the strong belief that electoral law reform is a low hanging fruit that President Emmerson Mnangagwa should quickly implement and assure the international community that he is truly committed to a free, fair and credible poll. And the quickest way to do so is to take advantage of the Electoral Amendment Bill, HB 6 of 2017 currently before the National Assembly, and bring wide-ranging proposals for change. The Minister of Justice can introduce the amendments at committee stage when the whole House considers the Bill clause by clause.
The Electoral Amendment Bill, HB 6 of 2017 was gazetted on September 18, 2017. Its memorandum states as one of its objects the completion of the alignment of the Electoral Act with the Constitution. In particular, it aims to smoothen the registration process for voters under the biometric voter registration (BVR) system, introduced in Zimbabwe in 2017. This is a Bill of limited application in terms of issues covered. This is why civil society has been on record lambasting the authorities for such a piecemeal approach to electoral law reforms.
The Southern African Parliamentary Support Trust supported public hearings on the Bill that were held by the Justice Portfolio Committee of Parliament from November 30 to December 7, 2017. In addition to condemning the piece-meal approach to electoral law reform, members of the public were vocal on issues to do with the independence of the Zimbabwe Electoral Commission (Zec), the conduct of the police, violence and intimidation and proof of residence requirements for BVR, among others.
Admittedly, some of the issues that were raised by members of the public had nothing to do with the electoral law. However, the hearings and submissions received presents an opportunity for policymakers to address other issues beyond the electoral law. This is important because a good electoral law will not stop an election being condemned if other issues such as intimidation and lack of access to State media by all political players are not addressed.
The other burning issue that should be addressed before elections is ensuring that every eligible voter is not disenfranchised. As much as possible, no one should be left out of the electoral process.
The electoral law must clearly provide for the independence of the Zec. One way of doing so is allowing the electoral management body to exclusively invite observers to the polls. Of course, the Executive will still be notified for security reasons. In addition, the observer accreditation committee should not be populated by the Executive.
Maintenance of order at polling stations should be the domain of the electoral management body, which should be allowed to call in members of the police where necessary.
At the end of the day, what citizens are expecting is an electoral law that satisfies the basic requirements of good law. The most important tenet is that the electoral law must be constitutional. The new dispensation must strive to avoid court challenges on matters to do with the Constitution. The return of the rule of law is judged mainly on the extent to which the supremacy of the Constitution is upheld. Perceptions that the Mnangagwa administration does not respect the supreme law will scupper re-engagements efforts.
The other important requirement of good law is that it has to be enacted after consultation with interested groups and parties, and after carrying out an independent and accurate assessment of its impact. This is exactly why drafters of the Constitution came up with section 141, which requires Parliament to consult citizens before passing a piece of legislation. If a law has been enacted without prior consultation, it is most unlikely to achieve its purpose. The spirit behind section 141 is that consultation must be meaningful. It is not undertaken merely to fulfil constitutional requirements. Citizens must feel that their input is being seriously considered.
In order to be effective a law has to be obeyed. The effectiveness of a law depends to a large extent on how far the State is able and willing to enforce it, and how far people are able and willing to obey it. Enforcement of the electoral law has been the missing link in Zimbabwe.
Finally, Members of Parliament must ensure that the language of the electoral law and any other pieces of legislation introduced in Parliament must be clear, objective and unambiguous and as simple as possible in the light of the law’s subject-matter. There should be no internal conflicts or anomalies in the law. This has not been the case with most of our statutes, and citizens find it very difficult to comply with a law they do not understand.
John Makamure is the executive director of the Southern African Parliamentary Support Trust. Feedback: email@example.com; @john_makamure