Watchdog calls for extensive amendments to electoral law
LEGAL and parliamentary watchdog Veritas has poked more holes into the Electoral Amendment Bill which went through its second reading in Parliament this week.
The group is recommending extensive changes in the proposed legislation to levels the playing field for the holding of free, fair and credible elections. Following the gazetting of the final Zimbabwe Electoral Commission (Zec) delimitation report by President Emmerson Mnangawa recently, the country is now set to hold general elections in August.
The government is currently pushing through the Electoral Amendment Bill so that it becomes law by that time, in a development the state says is meant to implement electoral reforms necessary to ensure that the polls are credible.
The Bill was first published in November last year by Justice minister Ziyambi Ziyambi. Since then, various stakeholders like the opposition Citizens’ Coalition for Change (CCC) and two legislators, Innocent Gonese (Mutare Central) and Charlton Hwende (Kuwadzana East), have made various submissions to Ziyambi so that he incorporates them in the Bill before it is passed into law.
However, in a bulletin released on Thursday this week, Veritas said the submissions made so far do not cover all shortcomings of the Bill and proposed major sweeping changes to the proposed law.
Part of the bulletin reads: “In Veritas’s view several further amendments should be made to the Bill, and in the public interest we are publishing them in an attachment to this bulletin. Any member of the National Assembly may like to take them up or members of the public may want to lobby for them. All our suggested amendments are politically impartial and are put forward with a view to ensuring a successful 2023 election.”
Veritas pointed out that changes to the Bill must be made on proposed provisions for postal voting, election petitions, disqualifying offences for candidates, proof of identity, misuse of state resources for electoral purposes and withdrawal of candidates.
Section 72 of the current Electoral Act allows postal voting for persons who will be on duty as members of the security forces or as electoral officers, public servants on duty outside Zimbabwe and their spouses.
However, Veritas said: “The effect of this is to deny many potential voters the right to cast their votes. Veritas’s amendments will allow any registered voter to claim a postal vote if on polling day: he or she will be detained in hospital or prison or in a similar institution, or . . .”
“He or she will be on duty as a member of the security forces or as an electoral officer, or he or she will be absent from his or her constituency or ward, whatever the reason for the absence.”
On the provisions regarding challenging the election results, Veritas noted that the current clauses in the Electoral Act only provide that unsuccessful candidates are the only ones with the right to do so under section 167.
The watchdog is therefore proposing that the law be changed to extend this right to voters who are registered in the constituency or ward where the election took place.
The watchdog also proposes that grounds for challenging an election result must cover the qualifications (or lack thereof) of the winning candidate, electoral malpractices, mistakes committed by Zec and other persons administering elections, and breaches of the constitution and the Electoral Act.
Veritas also wants the Bill to be amended to allow elections to be set aside if they do not conform with constitutional principles for elections.
“Apart from widening the grounds on which elections may be set aside, the amendments will reduce the onus of proof on petitioners. Whereas under the existing section 177 of the Electoral Act a petitioner (i.e. a person who challenges an election) has to prove that a mistake or irregularity on which he or she relies affected the result of the election — something that is always difficult and often impossible to prove — the amendments will provide that elections must be set aside if a material irregularity is proved to have occurred, unless it is shown that the irregularity did not affect the result,” says Veritas, adding: “Under section 182 of the Electoral Act, petitions must be finalised within six months and electoral appeals within three months. This time-limit has not been effective in speeding up electoral proceedings.”
“Veritas (wants) amendments which state that if a petition or appeal lapses because it was not finalised within the time-limit, the lawyers who represented the parties will be personally liable to pay the costs and will be deprived of their right to fees from their clients, unless they can satisfy the Electoral Court that they were not responsible for the delay. That, in Veritas’s view, will give lawyers an incentive to see that electoral proceedings are completed promptly.”
Clauses 2, 7 and 9 of the Bill currently in Parliament seek to prevent persons who have been convicted of certain criminal offences (socalled “disqualifying offences”) from standing for election.
However, Veritas argues that it is not legally possible to do this because section 125 of the constitution sets out the exhaustive grounds which disqualify persons from being elected to the National Assembly and therefore it is not permissible for an Act of Parliament to add to the grounds.
The watchdog also noted that state resources have often been misused in elections by office-holders to gain an unfair advantage over their electoral opponents and accordingly proposes amendments in a new section in the Electoral Act that will make such conduct a corrupt practice.
Clause 2 of the Bill presented by Ziyambi in Parliament proposes to amend the definition of “proof of identity” in section 4 of the Electoral Act so that driver’s licences can no longer be used as proof of identity for voting.
However, Veritas says this must be stopped as it will prevent voters from using their driver’s licences at polling stations to prove their identities, which will prejudice those who are not carrying their passports or national identity cards.
Veritas proposed amendment is to leave the definition of “proof of identity” as it is, so that it includes driver’s licences, but amend section 24(6) of the Electoral Act so that when persons apply to be registered as voters, they can be asked to produce any document reasonably needed to establish that they are citizens.
On notice of withdrawal of candidates ahead of elections, Veritas says: “Under clause 8 of the Bill, if a candidate withdraws from an election the Chief Elections Officer will have to give notice of the withdrawal in all newspapers circulating in Zimbabwe.
This is expensive and unnecessary because the withdrawal of a constituency candidate is not of general interest outside the constituency.
Veritas’ amendments will require notice of withdrawal to be given only within the candidate’s constituency.”