Background Briefing

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Some of Zimbabwe’s National Laws: Key Concerns

The Public Order and Security Act (POSA)

POSA was enacted in January 2002.  It introduces a range of criminal offences, including criticism of the President, whether his person or his office; the publication of a false statement that prejudices or is intended to prejudice the country’s defense or economic interests, or which undermines or is intended to undermine public confidence in a law enforcement agency, and the holding of a public gathering without giving the police four days’ written notice.

Key sections

Section 15 makes it an offence punishable by up to five years imprisonment to publish or communicate false statements prejudicial to the state including undermining public confidence in a law enforcement agency, the prison services or the defense forces of Zimbabwe.

Section 16 makes it an offence punishable by up to one year imprisonment to undermine the authority of or insult the president including making any false statements about or concerning the president that could endanger feelings of hostility or cause hatred, contempt or ridicule of the president.

Sections 23-31 on public gatherings provide the police with extensive powers to regulate and control any public gatherings, including banning or breaking up meetings if they are deemed to endanger public order.

Section 24 requires the organizer of a public gathering to give at least four clear days notice of the holding of the gathering to the regulating authority for the area for which the holding is being held.

The Access to Information and Protection of Privacy Act (AIPPA)

AIPPA introduced in 2002, creates a government-appointed Media and Information Commission (MIC) which has wide-ranging regulatory powers over the media, including the accreditation of journalists, the registration of media houses, and the enforcement of professional and ethical standards in the media.  The MIC’s governing Board is appointed by the Minister of Information. 

The Act makes it mandatory for journalists and media houses to register with the MIC and prohibits non-Zimbabwean journalists or individuals without permanent residency to work as journalists, unless for restricted periods and with the permission of MIC.  Journalists and media houses that operate without accreditation are liable to two years in prison.  Journalists must renew their accreditation annually, for which there is an application fee, while media houses must re-register ever two years.  The MIC may cancel registration for a wide-ranging number of reasons.  On January 7 2005, the government passed an amendment to AIPPA that provides for criminal penalties to journalists who operate without a license.

The Miscellaneous Offences Act (MOA)

MOA was enacted in 1964 under colonial rule.  It provides for the punishment of a broad range of offences including penalties for riotous or indecent conduct or threats in a public place.  The police have frequently used MOA to arbitrarily arrest opposition and civil society activists on spurious charges.

Section 7 (a) of MOA makes it an offence punishable by a fine or imprisonment of up to one year if a person is guilty of riotous or indecent conduct.  Section 7 (b) makes it an offence punishable by a fine or imprisonment of up to one year if a person uses any threatening, abusive or insulting words or behaves in a threatening, abusive or insulting manner with intent to provoke abreach of the peace or whereby a breach of the peace may be occasioned.  Section 7 (c) makes it an offence punishable by a fine or imprisonment of up to one year if a person employs any means whatsoever which are likely materially to interfere with the ordinary comfort, convenience, peace or quiet of the public or which are likely adversely to affect the safety of the public or does any act which is likely to lead to a breach of the peace or to create a nuisance or obstruction.

The Zimbabwe Electoral Commission Act

The Zimbabwe Electoral Commission (ZEC) Act creates the Zimbabwe Electoral Commission as an ostensibly independent supervisory electoral body.  The Act gives the president and the ruling party excessive power to appoint commissioners and creates too many opportunities and requirements for ministerial power to intervene in the Zimbabwe Electoral Commission.

The ZEC Act also makes voter education an effective monopoly of the partisan ZEC.  Non-governmental organizations may only provide voter education if they are registered under the Non-Governmental Organizations Act (still to be assented to by the president) and if the ZEC approves their participation and their voter education materials.  Only the ZEC may receive foreign funding for voter education.  This provision effectively prevents most NGOs, which have depended on foreign funding, from providing voter education.

The introduction of the ZEC has created confusion about whether it or the Electoral Supervisory Commission (ESC) has supreme authority.  The ESC is also supposed to be an independent body that supervises elections.  The ESC enjoys a constitutional mandate, which is consistent with the trend for electoral commissions in SADC countries,   whereas the ZEC is governed by an act of parliament.  Whether the ESC or the ZEC is deemed supreme, the role of the president in the appointment of ESC and ZEC commissioners guarantees that both bodies are partisan and not independent.

The ZEC Act and the Electoral Act prescribe different functions for the ZEC and the ESC, thereby fragmenting rather than concentrating electoral authority.  For example, the ESC is involved in observer accreditation and election monitoring in which the ZEC has no role.

The ZEC only became operational in February 2005.  By this time, the ESC had supervised the registration of voters and the inspection of the voters’ roll.  The Registrar-General is responsible for these tasks.  Also, the Delimitation Commission, another body composed of presidential appointees, had already delimited electoral constituencies.  The registration of voters, the inspection of the voters’ roll, and the delimitation of boundaries have all been tainted in the past because they have been conducted by government appointees in a non-transparent and discriminatory way. 

The Electoral Act

The Electoral Act removes the president’s power to make regulations by statutory instruments.  This is a positive step.  However, the Justice Minister still retains the power to make regulations by statutory instrument.  Legislating through hastily introduced regulations that do not require the approval of parliament was a hallmark of the 2002 presidential election.  A number of retrogressive electoral measures introduced by statutory instrument in the past two national elections have been incorporated in the new electoral acts.  These include proof of residency requirements, provisions relating to the invitation and accreditation of observers and to the restrictive use of postal ballots to government members.

The amended Electoral Act retains the proof of residency requirements from the 2002 election.  Proof of residency requirements effectively disenfranchise many potential voters, especially urban youth.  Since the opposition draws much support from urban youth, these requirements discriminate against it. Lodgers must provide rates bill in their name and with their address, or a letter addressed in their name from a store with which they have a credit account, or a lodger’s card, which is an agreement with the renter.  Even those living with their parents must prove that they are a “natural child”.  In such cases, a parent must accompany them to obtain an affidavit from a lawyer, a commissioner of oaths, or the police.  Since rates bills are almost always in the landlord’s name, lodgers are unlikely to retain any bills in their name.  The lodger’s card and the affidavit cost money and take time, thus straining resources. 

The Electoral Act provides for who invites and accredits observers, both foreign and local.  Members of the government and the Electoral Supervisory Commission, which is made up of presidential appointees, are responsible for inviting and accrediting observers.  This process of selecting observers does not favor the choice of independent observers.  Moreover, the price of accreditation per observer is high and will inhibit the numbers of local observers that non-governmental organizations can afford. 

The Electoral Act limits the use of the postal ballot to government employees on government business.  The 3.4 million Zimbabweans living in exile because of the political and economic crisis in the country are unable to vote.

The Electoral Act permits the ZEC and the ESC to second the uniformed services—the defense forces, the prisons service, and the police—to perform crucial tasks in the election.  The police and the army have been actively or tacitly involved in state-sponsored violence in the previous two national elections.  Their participation in the election processes is likely to intimidate voters.

The Electoral Act also provides for an Electoral Court to hear and determine election petitions, among other matters.  The Chief Justice of the Supreme Court, after consultation with the Judge President of the High Court, must appoint at least one High Court judge to preside over the Electoral Court.  Appeals must be determined within six months from the date of lodging the appeal.  The latter provision is welcome, especially because the courts deliberately stalled the opposition party’s petitions arising from the 2000 election.  However, the judiciary is no longer viewed as partisan.  The Chief Justice and the Judge President are reportedly ruling party supporters, as are all but one Supreme Court judge and most of the High Court judges.

<<previous  |  index  |  next>>March 2005