<<previous  |  index  |  next>>

Zimbabwe’s Electoral Commission Bill

Opening Parliament in July 2004, the President of Zimbabwe announced the government’s intention to introduce legislation to create an independent electoral authority.  The proposed Zimbabwe Electoral Commission (ZEC) Bill (H.B. 18, 2004) was therefore conceived prior to the adoption of the SADC electoral charter in August 2004, although it was only gazetted on September 10, 2004.  It is fair to assume that the government hoped that the proposed new authority might assuage widespread concern among government opponents about both the partisanship of existing election institutions and their often unclear mandates ahead of the general election in March 2005.  The challenge of creating an independent electoral commission at this time of deep polarization in Zimbabwe is indeed a formidable one.  While the government should be credited for attempting to meet this challenge, in its present form, and all the more so given the current political environment in Zimbabwe, the ZEC Bill falls short of its objective to create an independent authority.  Additionally, rather than helping to clarify the mandates of the different electoral institutions, the ZEC Bill adds another layer of confusion.

The ZEC Bill undercuts the independence and impartiality of the proposed Commission in numerous ways.  The appointment procedure for Commissioners does not ensure a sufficient role for all political parties that are represented in Parliament.  There are insufficient restrictions to eliminate high profile political party office-holders from becoming Commissioners.  The Commission’s work, its members, and its staff are subject to too much Ministerial intervention.   The Commission’s regulation of voter education, though in principle an acceptable goal, is unnecessarily severe and intrusive on non-governmental organizations.  These issues, followed by the problem of mandate confusion among electoral institutions, are addressed next.

Independence and impartiality and the composition of the proposed Commission

The Bill provides for the President to appoint five Commissioners,⁵⁷  who serve five-year terms.⁵⁸  The President is empowered to appoint a Chairperson, subject only to consultation with the Judicial Service Commission (JSC).  The Chairperson must be a person qualified to be appointed as a judge of the High Court or the Supreme Court.⁵⁹  The JSC is composed of the Chief Justice, the Chairman of the Public Service Commission, the Attorney General, and two presidential appointees.⁶⁰  The President also appoints the four other Commissioners from a list of seven nominees submitted by Parliament’s Committee on Standing Rules and Orders.  The standing committee has eleven ZANU PF and seven MDC members.⁶¹  Of the eleven ZANU PF members, eight are the nominees of the current ex officio committee Chair, Speaker of the House, Mr. Emmerson Mnangagwa, who has the right to vote on the Parliamentary Committee.⁶²  The ruling party Committee members include the Vice-President, four Ministers, and three Deputy Ministers.⁶³  The President by himself may appoint a qualified person to fill a vacancy on the Commission.⁶⁴

Insufficient restrictions to eliminate partisan Commissioners

While the ZEC Bill seeks to protect the impartiality of the Commission from its members’ potential financial conflicts of interest, it does not provide for adequate protection against members’ potential conflicts of political interest.⁶⁵  The First Schedule of the ZEC Bill only makes members of Parliament ineligible to be appointed as Commissioners and also those who serve on two or more statutory bodies.⁶⁶   There is no provision in the Bill to exclude even high-ranking political party office-holders or government appointees such as provincial governors. 

Ministerial intervention

The impartiality and independence of the Commission is undermined by provisions for the intervention of the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may assign the administration of the proposed Bill.⁶⁷  Conferring such powers on the Minister is at odds with the goal to create an independent electoral authority and with the claim that, except for the Constitution, “the Commission shall not...be subject to the direction of any person or authority.”⁶⁸  The Commission is granted the power to make regulations to conduct its functions.⁶⁹  However, these regulations only take effect after they have been approved by the Minister.⁷⁰   The Minister also plays a major role in the suspension and dismissal of Commissioners.  The Minister may suspend a Commissioner if the Minister has reasonable grounds to suspect the Commissioner of having been guilty of conduct that is deemed “unsuitable”,⁷¹ or if criminal proceedings have been instituted against a Commissioner for an offence which may result in a sentence of imprisonment without the option of a fine.⁷²   Besides specifying that “unsuitable” conduct includes a contravention of the Commissioner’s duty to disclose certain connections and interests,⁷³ the Bill does not elaborate on what constitutes “unsuitable” conduct.  Consequently, the Minister has considerable discretionary powers to suspend Commissioners.  The same Minister appoints the three members of “the Independent Disciplinary Committee” to decide on whether to dismiss a Commissioner.⁷⁴  In many cases, the Commission shall not terminate the services of the Chief Elections Officer without the approval of the Minister.⁷⁵  The auditors that the Commission must appoint to examine its finances require Ministerial approval.⁷⁶  The Second Schedule, which provides for the ancillary powers of the Commission, has seven clauses in which the Commission’s power is contingent on the approval of the Minister.⁷⁷ 

Excessive Commission control over voter education

The Bill provides for the Commission to provide and control voter education.  In principle, there is no reason why the Commission should not exercise these functions.  However, as discussed below, the provisions for the Commission to control voter education are extreme and infringe on section 20 of the Constitution that guarantees freedom of information and section 21 that protects freedom of association.  These controls also violate the SADC Principles and Guidelines Governing Democratic Elections, specifically of freedom of association, freedom of expression, and the full participation of citizens.

The Bill provides for voter education by the political parties, the Commission, and any “person” the Commission may appoint.⁷⁸  Any “person” who wishes to provide voter education must be a citizen or permanent resident of Zimbabwe domiciled in Zimbabwe, or an association registered as a private voluntary organization in terms of the Private Voluntary Organizations Act and one that also has a specific mandate to provide voter education.  Moreover, such an association must be made up of citizens or permanent residents of Zimbabwe.⁷⁹  The Commission has significant control over these “persons”.  It must ensure that they provide voter education and voter education materials that are adequate and not misleading or biased in favor of any political party.⁸⁰  Moreover, the Commission is empowered to require any “person”, other than a political party, providing or proposing to provide voter education, to furnish it with voter education materials; names, addresses, citizenship or residence status and individuals’ qualifications; and funding sources.⁸¹  Failure to comply with any of these provisions constitutes a criminal offence, liable to a fine or to imprisonment for at most two years or to both a fine and imprisonment.⁸²  The Commission alone may receive foreign funds for voter education and may disburse the money to either those it appoints to assist with voter education, or others permitted to provide voter education, other than political parties.⁸³

The provisions on voter education privilege the Commission at the expense of existing non-governmental organizations, and thereby ensure that the Commission will have primary responsibility for voter education.  Existing non-governmental organizations that provide voter education often rely on foreign funding because of the lack of domestic funding sources.  These organizations, such as the Zimbabwe Electoral Support Network which is a coalition of NGOs to coordinate election-related activities and especially to promote democratic elections, will likely have to cease their work.  A Commission whose members do not reflect the input of all the major political parties will be less likely to fund such politically independent organizations.  Like the Non-Governmental Organizations Bill of 2004,⁸⁴ the voter education provisions in the ZEC Bill seem to deliberately seek to eliminate associations that are involved in promoting human rights and governance issues and to ensure governmental control.  The ZEC Bill also unnecessarily prohibits the participation in voter education of foreigners and even of the estimated three million Zimbabweans domiciled outside the country. 

Adding to confusion over mandates

The ZEC Bill provides for the functions of the new Electoral Commission.  Inter alia, the commission must prepare for and conduct elections and referendums, direct and control the registration of voters by the responsible legal authority, compile voters’ rolls and registers and ensure their proper custody and maintenance, conduct voter education, establish and operate polling centers, accredit observers of elections and referendums in accordance with an Act of Parliament, and instruct the Registrar-General in regard to the exercise of his or her functions in terms of the Electoral Act.⁸⁵   In the exercise of these functions, “[S]ubject to the Constitution, the Commission shall not...be subject to the direction of any person or authority.”⁸⁶

The functions conferred on the proposed Commission add to the existing confusion about jurisdictional authority among the electoral institutions.  There is confusion between the functions of the proposed Electoral Commission and the Electoral Supervisory Commission (ESC).  The ESC’s powers, which derive from the constitution, include responsibility for the supervision of the registration of voters and the conduct of elections of members of Parliament.⁸⁷  In the exercise of its functions, the ESC must not “be subject to the direction or control of any person or authority.”⁸⁸  The new Electoral Commission, which has no direct constitutional authority, is also responsible for the conduct of all elections and referendums and for the registration of voters.⁸⁹  Another source of confusion arises over which institution will accredit election observers and monitors.  The ZEC Bill empowers the Electoral Commission to perform this task.  The 2004 Electoral Bill gives the ESC rather than the Electoral Commission the function of accrediting observers.⁹⁰  If the objective is to make the new Electoral Commission the supervisory body, then the ESC should be scrapped or amended, and the powers of the former body should derive from the constitution.