THE NEED TO ALIGN THE ELECTORAL ACT WITH THE CONSTITUTION

The Constitution if not implemented and activated is just but an empty gong

by J Mutevedzi

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The constitution is the supreme source of law in our land. This is underscored in section 2 (1)
of the Constitution1 which states:
This Constitution is the Supreme Law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of the
inconsistency. [Emphasis is added]
Aptly captured, it is that source of law which is sui generis2 in nature. The supremacy of the
Constitution is predicated upon the fact that it is the representation of the general will of the
citizenry of Zimbabwe. In a referendum the populace voted for the constitution to come into
effect so it is not only a representation of this will but a symbol of democracy. The people of
Zimbabwe participated in the Constitution making process and they voted in the March 2013
referendum. The preamble proves in glaring clarity, that the document is a mandate of the
general populace through the simple yet scintillating words:
We the people of Zimbabwe.
This indicates that the Constitution is indicia of at least what us as Zimbabwe wanted, hence
its sanctity. This entails that the dictates of the special document should and must be
respected. Of particular essence is the fact that any law contrary to the constitution is void to
the extent of inconsistency. If any law, in spirit or substance violates the purpose and objects of
the sacred will of the citizenry, it ought to be struck off as it bows down to the Constitution. This
applies even in a case where a Bill forebodes the potential to conflict with the Constitution. It is
the role of every stakeholder with a substantial interest to therefore fortify the Constitutional
guarantees by taking part in a thorough and rigorous alignment process, to the end of
achieving the Zimbabwean dream in its entirety.
The Electoral Act3 of Zimbabwe predates the Constitution; this then means that there is a
special need to align it with the Supreme law. Some provisions in the Electoral Act fail the

1 The Constitution of Zimbabwe, Amendment No.20 of 2013.

2 It a special source of law.
3 [chapter 2:13]
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constitutionality test4. They are contrary and inconsistent with the Constitution. It can never be
overstressed that every Act of Parliament in Zimbabwe should be consistent with the
Constitution. If any provision in any statute contradicts the Constitution it is ultra vires5. Once it
is ultra vires, it automatically follows that it is at law a nullity. There is a multiplicity of such
provisions in the Electoral Act. This paper is therefore a clarion call for the legislature to
intervene and align the laws to the Constitution.
POSITION
The position advanced in this paper is that the Electoral Act including the Amendment No. 185
of 2013 fails the constitutionality test. It is on this background that the need for an alignment
process will be discussed. This paper will also show that the Generals Laws Amendment Bill is
not enough. It is far from achieving what is contemplated by the Constitution. Much emphasis
is going to be placed on the right to vote, and the principles upon which the Zimbabwean
Electoral system is founded on as enunciated in the Constitution. A lot will be said on the
Electoral Commission and aspects of its independence will be discussed.
The right of suffrage is one of the most contentious rights in the development of modern day
democratic societies. Zimbabwe is no exception, and election time is almost always froth with
tension and fears of irregularities. Thankfully, the constitution goes at length to provide a good
framework against which elections are to be conducted. It protects the right of the citizen to
vote, the conditions in which this right is to be exercised and the authority responsible for
executing this task. This is because the constitution is fundamentally an expression of the will
of the people, a safeguard to their rights and a tool with which the people can retain their
legitimate entitlement to determine the course of their own government. It is in this spirit that all
electoral laws ought to conform to the sui generis constitution. It was enacted before the 20 th
amendment came into force. This reality means that the Act is not consistent fully with the

4 Failing the constitutionality test means that some provisions in the Electoral Act
do not accord with what the Constitution demands. This therefore works as a need
or a justification for an alignment process which is tentamount to a complete
overhaul of the existing current Electoral Act for the disadvantages that it holds in
the current constitutional dispensation that we are living in as a democratic
society.
5 This literally means inconsistent to.
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Constitution. Due to this disparity, there is definitely a need for alignment of the Constitution
with the Electoral Act.

Sadly this is not the case in Zimbabwe as there are many provisions in the Electoral Act which
militate against the objects of the constitution. As shall be noted in this paper, the proposed
General Laws Amendment Bill is a far cry from addressing the disparity. The Electoral Act is
archaic in its substance as it still has to catch up with the constitution which is progressive. The
constitution, if fully reflected in the Electoral Act, has the potential to set in motion a quasirevolutionary overhaul of the shambled Electoral systems of Zimbabwe. The existing
provisions are potentially fatalistic as Zimbabwe is on the brink of a 2018 election period. This
issue has not been given the attention that it deserves by legal scholars and civic
organisations.

Chapter seven of the Constitution deals with the aspects of Electoral law in Zimbabwe. It
stretches from section 155 to section 161 of the supreme law. It is instructive at this juncture to
point to the fact that in the Constitution there are two types of provisions which affect issues of
electoral law, which basically are regulated by the Electoral Act. There is what can be called
enumerated provisions. These are the provisions which have a direct or visible impact to the
electoral issues. They are found in Chapter seven as was pointed. Secondly there are nonenumerated provisions. These are provisions which do not have a direct bearing to regulation
of our electoral law. They are however of crucial importance. They may be termed indirect
provisions. Examples of such provision include section 3 of the Constitution which outlines the
founding values of the nation. It is those values that are in section 3 that should give shape
and flavour to the Electoral law. Section 3 can actually be called the spirit of each and every
statute in Zimbabwe. Some provisions in the Bill of Rights also have an impact to our electoral
law. For example equality and non discrimination clause in section 56, freedom of assembly in
section 58, freedom to demonstrate and petition in section 59 and of significance section 67
which deals with the political rights. This paper will be answering these questions in essence
Is the Electoral Act consistent to the Constitution of Zimbabwe?
Is the General Amendment Bill the best of what Zimbabwe needs in solving the
problems that are in our electoral law
Are the founding values in section 3 of Constitution indicated in our electoral law
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 Are the demands of the international instrument like Universal Declaration of Human

Rights and the African Charter respected by our laws regulating elections.
If yes ,cadeat questio6
If no, what should be done?
Are there any likely impediments in implementing some points of reform?
How can the above challenges be countered?

GENERAL LAWS AMENDMENT BILL

It should be noted that at the time of writing, there is a proposed Bill in place which is
meant to align 126 statutes with the new Constitution. Of the 126 statutes, the current
Electoral Act is also a target. The Bill seeks to amend the laws in a single effort. It is
important to firstly provide for what the Bill says and then an analysis will follow forthwith.
The Bill was gazetted as the Electoral Act 2014 [Act 6 /2014]. It essentially provides for
the following in its pursuit to align the Electoral Act with the 2013 Constitution.
1. Transfer of responsibility for registering voters and compiling voters roll from the
Registrar General of voters to the Zimbabwe Electoral Commission.
This is done in pursuit 239 of the Constitution which gives the mandate of compiling
voters rolls, registers and maintenance of the same to the Zimbabwe Electoral
Commission. [ZEC]
2. The Bill also calls for voters roll and voter registration certificates to record the gender,
age and names of the voters.
3. The bill also seeks to amend section 110 of the Electoral Act 7 which deals with an
elected presidents assumption of office. While the current act provides that an elected
president assumes duty 48 hours after the declaration, the Constitution requires that
such candidate assumes office upon taking the oath of office.
4. It still maintains the office of the registrar general and provides for the corporation
between this office and the Zimbabwe Electoral Commission.
6 End of story.
7 This provision deals with the assumption by a person who have won the
presidential elections. This provision provides that, the President shall assume
office after 48 hours. This has now been changed.
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5. The bill also reinstates the postal voting system to those who are on duty.
6. Section 40 C8 of the bill provides for the conduct of voters education by persons other
than the Commission.

CRITIQUE OF THE GENERAL AMENDMENT BILL

The summary given above begs a number of critical questions to which attention has to be
paid. The Bill in itself creates more questions than those that it seeks to answer. The following
are the questions which one may want explanation in regards to the proposed Bill:
Do the above changes provide any real or substantial change at all?
Is this the best that we can do as a nation to attenuate the electoral law crisis which has been
haunting Zimbabwe historically?
Does the Bill guarantee the full exercise of the inalienable right of adult suffrage? Important to
note is that the right to vote is not only enunciated in our Constitution but it is also underscored
in provisions of a number of international instruments, like the universal declaration of rights.
Is it a proper legislative practise to seek to amend One hundred and twenty six (126) statutes
in a single Bill using an omnibus fashion?
Was enough attention in this process given to the Electoral Act which is of much importance
than other statutes? The reality is that this approach will not promote the exhaustion of issues.
If one chases more than one there is a high likelihood of imbalance in the efforts of that
person. In casu9, some statutes will receive more attention than the other. It could be that in
this pursuit, the Electoral Act is overshadowed by another piece of legislation. Though others
may argue the remoteness of such eventuality, it is important to keep an observant eye on the
manifest risk of that happening. A risk that is too big to take.
Is the independence of the Zimbabwe Electoral Commission guaranteed by the General Laws
Amendment Bill?

8 This is in terms of the General Amendment Bill as proposed.

9 In this case.
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It should be noted in light of this rhetoric that it is the independence of the regulating authority
that matters in any election. The independence of the regulating commission gives credence to
the results when announced.
Does the current Electoral Law framework require an amendment or a complete overhaul?
Are the changes proposed by the General Laws Amendment Bill substantial or merely
cosmetic?
Where the reforms changes at all or they just restated the old law?
Where there any international instruments considered in arriving at these propositions?
The above questions are universally answered by a resounding no. The position taken in this
paper is that the General Laws Amendment Bill is severely inadequate to address the plethora
of challenges that besot our Electoral Law. The above reforms are at their best merely
cosmetic. They do little to address the hovel of challenges that stand in the face of Electoral
Law progression. The changes preserve the status quo ante10 in the old electoral law system,
and fail to bring any real and notable change. There are some defects within the Bill which are
worth mentioning. According to a human rights lawyer11,
The amendments to the many acts are piecemeal and fail to align the most
crucial and substantive provisions required to comply with the new
constitution.
The lawyer went on further to condemn the approach which is being used by the legislature in
bringing about amendments to the statutes so as to align them with the supreme law of the
land. The lawyer dubbed the process to be an omnibus approach which focused on rereferencing, changing titles of offices, officials, institutions and preambles.
It is respectfully submitted that this is merely cosmetic. It does not seek to promote and
protect the fundamental rights and the principles which the constitution of Zimbabwe demands.
In light of this, any authorities responsible for the General Laws Amendment Bill should

10 Old position.
11 Cited by Venaranda Langa in an article for Newsday Zimbabwe, Lawyers Blast
Proposed General Laws Ammendment Bill May 25 2016
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acknowledge and concede that more changes are need if the Electoral Act is to conform to the
Constitution. It is actually pragmatic for the whole process to be done de novo12.
It will be prudent for the legislature to be involved in process specifically aimed at addressing
Electoral Reforms. Another flaw of this process is that there was no public involvement indeed
the parliament represents the people, but is it effective and is it the sole stakeholder?. Other
civic organisations and stakeholders should have been involved in this process. This includes
churches, political parties, non-governmental organisations and the international community. It
is notorious in Zimbabwe that most of the controversy surrounding the Electoral system is in
respect of the credibility of the election results. The stakeholders mentioned therefore needed
to be consulted to give confidence to the whole process. Indeed this paper is not specifically
aimed at the process that led to the Bill but the result of that process. It is inevitable however
that in assessing the results of the process one ought to pay attention to the process. Both
borrow and lend to one another.
As identified already above the main intricacy created by this bill is that it is not specific to
electoral law, and has been described as an omnibus approach or proposed statute. A
consequent trouble created by this is that it will fail to pay special attention, or enough attention
to the Election system with its idiosyncrasies and nuances. The status of general statutes or
overview statutes is doubtful particularly in light of the generalis specialibus non derogant13
maxim, which generally states that omnibus provisions are of subservience in value when
ranged against specific provisions.
The following are the problems that the General Amendment Bill has

There is only one substantive change that was done to the current Electoral Act, that is
the transfer of the voters roll and registration processes from the Registrar General to

the Zimbabwe Electoral Commission.

The Amendment Bill, retains a relationship between the ,Registrar General and the
Zimbabwe Electoral Commission. The parameters of the relationship are hoever not
defined in the Act. This will spell a co-operation difficulties or challenges between the
two offices. Co-operation between the two offices may be evident up until Mudede
leaves office which is soon.

12This means to be done afresh.

13 The special takes precedence over the general.
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It makes few cosmetic amendments to the Electoral Act

Changes are not comprehensive, they are just a piece meal
Some provisions in the Bill are complicated for example the provision dealing with the
transfer of voter registration and maintenance of the voters roll. Instead of the provision
just to say, the voters roll shall be transferred to the commission; it meanders and
complicates the provision.

Conclusively, the Bill does little to solve the problems which are currently affecting our Electoral
law. The Bill is inadequate; it does not engage any international instruments in dealing with the
changes. Its provisions are seriously defective. There is need to do a complete overhaul of the
Electoral Act and enact a totally new piece of legislation which seek to advance the interests of
the Constitution and the people in generally who voted for it.

RIGHT TO VOTE
This paper will now deal with the right to vote at great length. It will show the importance of the
right, how it is protected by the Constitution and international instruments. A check will be done
in respect of the Electoral Act and the General Amendment Bill on whether or not they conform
to the constitutional demands and the international legal obligations of the country. After having
done so, a point of reform or a recommendation made in light of the Constitution will be
advocated.
The importance of the right to vote was explained by Sachs J in August and Another v
Electoral Commission and Others as follows:
Universal adult suffrage on a common voters roll is one of the foundational
values of our entire constitutional order. The achievement of the franchise
has historically been important both for the acquisition of the rights of full and
effective citizenship by all South Africans regardless of race, and for the
accomplishment of an all- embracing nationhood. The universality of the
franchise is important not only for nationhood and democracy. The vote of
each and every citizen is a badge of dignity and of personhood. Quite
literally, it says that everybody counts. In a country of great disparities of
wealth and power it declares that whoever we are, whether rich or poor,
exalted or disgraced, we all belong to the same democratic South African
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nation; that our destinies are intertwined in a single interactive polity. Rights
may not be limited without justification and legislation dealing with the
franchise must be interpreted in favour of enfranchisement rather than
disenfranchisement. [see the underlined part for emphasis]

The right to vote and the right to free, fair and regular elections form part of the bedrock of our
democracy. Universal adult suffrage, a national common voters roll and regular elections are
recognised by our Constitution as founding values; and with good reason. Universal adult
suffrage is essential to democratic self-government: it guarantees every adult in Zimbabwe the
right to vote, irrespective of race, gender, or status. Our collective exercise of the right to vote
determines who governs us
The words of Madlanga J in the case of Electoral Commission vs Mhlophe are of
significance. It was sated that
. Any case concerning the right to vote must be approached mindful of the
bright, symbolic value of the right to vote as well as the deep, democratic
value that lies in a citizenry conscious of its civic responsibilities and willing
to take the trouble that exercising the right to vote entails14.
Unlike other civil and political guarantees, the right to vote imposes an obligation upon the
State not merely to refrain from interfering with the exercise of the right, but to take positive
steps to ensure that it can be exercised. The state should make sure that it creates an
environment that is conducive for elections which are peaceful and fair. The state should make
sure that at its expense the members of the general populace are educated on this right.
This is what the Amendment Bill should contain. In protecting this right, it should make sure
that an environment that allows people to vote should be created.
The importance of the above two cases is very simple but instructive. It shows the importance
of an individuals right to vote. This is a right which every person by virtue of being
Zimbabwean and above the age of 18 years should enjoy. The government of the day does not
have any power to limit or infringe this right which is the foundational cornerstone of a
democratic society like Zimbabwe.
14 Ritcher v Minister of Home Affairs 2009 (3) SA615 (CC) at paragraph 53
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The Constitution of Zimbabwe 2013, states this right emphatically in section 67 (3) (a)
Subject to this Constitution ,every Zimbabwean citizen who is of over eighteen years of age
has the right to
(a)

To vote in all elections and referendums to which this Constitution or any other law
applies , and to do so in secret

From the following, it therefore follows that

Every person with disability with the necessary age has to vote. Whether blind or
deaf it means that they should be given an opportunity to vote

That inmates that is incarcerated individuals have a right to vote

Those who are in the diaspora have the right to vote.

This right is sanctified in the Constitution of Zimbabwe, there is now need at this juncture to
check what the Electoral Act says. The Electoral Act provides for the right to vote. Those
legible for voting have to be registered with the Registrar. They vote at a polling station at a
constituency where they are registered.
This is a limitation to the right to vote, as it often happens that a voter may be working at an
area different from the place of registration. Distance might be an impediment or a hindrance
for that person to go and vote. The fact that the, day on which elections or polls are done will
be a holiday does not suffice in providing for this right.
Secondly, there is an issue concerning Diaspora voting. There are those people who will be
living in Diaspora. To note is that for one to be able to vote, that person has to satisfy the
following qualification,

Have to be eighteen years and above

Have to be a Zimbabwean

What then about those in the Diaspora? Do they vote?

It should be understood that voting is every citizens right. An individuals right should not be
taken away by simple reason that the individual is not in Zimbabwe. As we stand currently, our
electoral law provides that it is only those people in the Diaspora or other countries on official
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duties that are entitled to vote This means that the general populace who are not in Zimbabwe
but not for official national duties are deprived of their right to determine the course of their
destiny. This means that millions of Zimbabweans who are not in Zimbabwe have their rights
taken away. They are not being given an opportunity to air their wishes and political opinion yet
alone in the new constitution, there are political rights and in particular there is a right to vote.
It therefore entails that in Zimbabwe, there is a constitutional loophole which needs to be
addressed in due course so that the right of adult suffrage is not interfered with.
In line of the above, this paper is a clarion call for the legislature to intervene. In Zimbabwe the
alignment process had already begun it has to be clearly enunciated that Diasporas are
allowed to vote just like how ambassadors and other country diplomats do it. It means that if
the Act is to be amended it should seek to validate and activate the right to vote for those who
are in the Diaspora. The special procedure of voting should be extended to those who are in
the Diaspora Absent voting should just be for anyone who wishes to vote from whatever
location that person is. This approach is totally contrary to the demands of the Constitution.
The fundamental values that are outlined in section 3 of the Constitution will be violated.
COMPARISON WITH OTHER COUNTRIES ON DIASPORA VOTING
There are a number of countries that have legislation and policies in place that allow those
citizens not resident in their country to vote. These nations have a belief that citizenship is
what matters and not residence. To begin with, in the United States of America since 1975
through the Overseas Citizens Act Absentee Voting Rights Act, allowed its citizens living
outside the country to actively participate in its elections. In South Africa, since the 15 th of April
2009, thousands of its citizens who were residing outside South Africa were allowed to vote
through their local embassies. This development succeeded a Constitutional application to the
Constitutional Court by the Diasporas themselves. Namibia has also allowed the Diasporas to
vote since the year of 1989. Botswana falls in the same genus of those countries that allow
those who are overseas to vote. Not to allow those who are in Diaspora to vote is a blatant
disregard of what the Constitution says hence ultra vires. It is from this angle that Diaspora
voting should be understood and allowed.
A number of people have criticized the Diaspora voting for a number of reasons. Some of
them are as follows:

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The Diaspora voting is outside the boundaries of the election observers, so there is a
potentiality of rigging elections.

Chances for intimidation are very high to those who are outside Zimbabwe since it is a
group that is identifiable and fear be instilled to them.

There is no security in regards of the ballot papers and boxes.

CAN THESE DISADVANTAGES OR FEARS BE A GROUND FOR LIMITING THE RIGHT TO

VOTE?
Right to vote is a constitutional right which is fundamental. Yes it is not an absolute right as it is
not in terms of the section 86 of the Constitution but surely the limitation clause cannot be a
justification to deny those who are in other countries a vote. There are a number of measures
which can be crafted and put into motion so as to counter the challenges that where raised
above. The following can be done rather than to infringe the right to vote:

Safeguards should be put in place so as to increase the security that is afforded to the

polling station which in the Diaspora.

The proceedings in the foreign countries should be simultaneous or in sync with what is
being done in Zimbabwe. This means that the polling station in the Diaspora is opened
and closed at the same time like what the local constituencies will do. This will be a way

of trying to eliminate some mal and fraudulent practices.

The Electoral commission should have a branch that is responsible for monitoring

Diaspora voting.
Efforts to create Diaspora based constituencies should be done\
Holding the elections earlier in Diaspora than locally. The ballot boxes are then brought

to Zimbabwe command centre for counting.

Electronic voting may also be another way to go.
Dual citizenship may also be a system to facilitate Diaspora voting.

INTERNATIONAL INSTRUMENTS ON THE RIGHT TO VOTE

Zimbabwe has international instruments that it has ratified and these become our law by virtue
of section 34 of the Constitution which says

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The state must ensure that all international conventions, treaties and
agreements to which Zimbabwe is a party are incorporated into domestic
law.
This means that, the nation has some laws that it has ratified international that do bind its
practices. The Universal Declaration on Human Rights is a typical example of that. The
UDR provides this right in terms of Article 21 (3) which states that
The will of the people shall be the basis of the authority of government ,this
will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures
This instrument provides the fundamental framework which should be respected.
The Covenant on Civil and Political Rights provides as follows in part 1:
All persons have the right to self determination. By virtue of that they freely
determine their political status and freely pursue their economic, social, and
cultural development
This belabours the point that the right to vote is not only protected by the Constitution but it is
also protected by international instruments which Zimbabwe have ratified.
The right to vote is also protected in Article 13 of the African Charter which says:
Every citizen shall have the right to participate freely in the government of
his country either directly or through freely chosen representative in
accordance with the provision of the law.
These cited provisions are similar to section 67 off the Constitution which provides for the
political rights.

WHAT ABOUT THE INSTRUMENTS THAT ZIMBABWE HAS NOT RATIFIED?

There a multiplicity of international instruments that provide for the right to vote and other
political rights but Zimbabwe has not ratified them. This does not mean that they do not help in
shaping the Zimbabwean electoral law. These instruments are persuasive to the law in
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Zimbabwe. They also form part of international customary law which Zimbabwe should respect
by virtue of its international obligations.
Section 326 of the Constitution provides as follows:
Customary international law is part of the law of Zimbabwe, unless it is
inconsistent with this Constitution or an Act of Parliament
326(2) posits that
When interpreting legislation every court and tribunal must adopt any
reasonable interpretation of the legislation that is consistent with customary
international law applicable in Zimbabwe , in preference to an interpretation
inconsistent with that law
Section 327 provides for an approach that is consistent to the international instruments.
This therefore means that, there are other instruments which Zimbabwe should follow in its
legislative and adjudicatory approach. In the alignment process of the electoral Act it should
indicate other international instruments ;s approach in protecting and promoting the right to
vote.

RECOMMENDATIONS IN RESPECT OF THE RIGHT TO VOTE IN ZIMBABWE

Clearly the Constitution of Zimbabwe furthers and promotes the right to vote. Universal adult
suffrage is protected. This however will be brutum fullmen15 if the Electoral Act is not aligned
to the supreme law. It has to be recalled that the Electoral Act predates the Constitution which
logically means that there are inconsistencies or mismatch between the two. The Electoral Act
being the weaker of the two, it has to be revised and be modelled on the Constitution. In
shaping the revised electoral Act, it should take into cognisance what is happening globally.
The international instruments should also be respected.
The following is what I propose as a way of protecting the right to vote in Zimbabwe.

Those who are in the Diaspora should be given a right to vote. The Act should be
revised or amended so as to take into account this fact. Voting is by citizenship and not

15 Just an empty noise

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by residence. As such the amended Act should put into place a mechanism in which
the Diasporas will be allowed to vote in Zimbabwe.

An elaborate provision in the Electoral Act in regards to those with disabilities should be
put in place so as to protect them. There is an obvious need for the blind to be given
facilities which will enable them to vote. These are facilities such as brail. It is both
unconstitutional and preposterous for a visually impaired individual to tell a polling
officer or a presiding officer the individual or the political party he or she wishes to vote
for. Doing so, will violate the secrecy that is afforded to a voters vote. If the proper
exercise of this right is to see the full light of day, these facilities should be provided
expansively. Brail should just be like pens or the ballot papers, without them the polling
station cannot function at all.

The registration process for voting should be made easy. The current one is rigorous
and time consuming. The registration process should be done in such a way that it
does not frustrate the willing voter. A person should be made to register at any place
where he or she wishes. In this it should be noted that by relaxing the registration
process, the voters roll should not lose the integrity that it should have. Voters rolls
are a fundamental component of any voting system.

The fact that everything in our electoral proceedings is constituency based should be
checked, for it is causing a lot of problems in our electoral systems. For example
section 24 (1) of the Electoral Act provides as follows
Any person who wishes to be registered as a voter on the voters roll for any
constituency shall present himself or herself at the appropriate registration
office in order for the appropriate prescribed claim form to be completed on
his or her behalf by the constituency registrar, deputy constituency registrar

or assistant constituency registrar:.

This issue of everything being constituency controlled should be limited by an Act of
Parliament.
RELATIONSHIP BEWEEN THE RIGHT TO VOTE AND OTHER RIGHTS
The right to vote is a Constitutional right which should not be exercised or understood
in isolation with other rights. There are other rights that are directly linked to this right.
Chief to these is the right to access information. The right to information is enunciated

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in section 62 of the Constitution. See the footnote for what it provides 16. The
symbiotic relationship that exists between the right to vote and the right to access
information was stated by Ngcobo CJ, on behalf of a unanimous Court, in M & G
Media Ltd: the judge echoed as follows:
In a democratic society such as our own, the effective exercise of the right to vote also
depends on the right of access to information. For without access to information, the
ability of citizens to make responsible political decisions and participate meaningfully in
public life is undermined.17.
The words by the learned judge indicate that the public voters should be given an
opportunity to inspect the voters roll.

COMPOSITION AND FUNCTIONS OF ZIMBABWE ELECTORAL COMMISSION

For the facilitation and progress of elections in any system, there must be a board which
regulates its progress. Like in any other system, Zimbabwe has such a board and it is called
the Zimbabwe Electoral Commission (ZEC). It is created in terms of section 238 (1) of the
Constitution of Zimbabwe. The provision state the following
There is a commission to be known as Zimbabwe Electoral Commission
This paper will firstly deal with the composition of the commission. The following officers
compose the commission. These are

The chairperson
Eight other members who are presidential appointees.

IS THE ELECTORAL ACT IN LINE WITH THIS PROVISION?

16 62(1) of the Constitution provides as follows every Zimbabwean citizen or

permanent resident ,including juristic persons and the Zimbabwean media , has
the right to access tto any information held by thes state or by any institution or
agency of governinment at every level , in so far as the information is required in
the interests of public accountability
17 President of the Republic of South Africa and Others v M & G Media Ltd [2011] ZACC
32; 2012 (2) SA 50 (CC); 2012 (2) BCLR 181 (CC) (M & G Media Ltd) at para 10.

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The Electoral Act needs to adopt what the constitution says in terms of the Constitution. It
should be noted that the Electoral Act is made in terms of the Constitution, hence there is need
for it to indicate what the Constitution which is the supreme law demands. The General
Amendment Bill should indicate this so as to align it with the Constitution.

FUNCTIONS OF THE COMMISSION

The functions of the Electoral Commission are stated in section 239 of the Constitution and
they are as follows.

Supervision of elections in the country, for electing the President, referendums,

members of Parliament and all provincial elections.

Registration of voters
Compilation of the voters roll.
Ensure the proper custody and maintenance of voter s roll
Delimitation of constituencies and wards
Designing and printing of ballot papers
To conduct and supervise voter education
To accredit observers of elections and referendums

These are some of the roles of the commission. It should be noted that the above is not all. It is
actually bequeathed with a number of functions.
It is important at this juncture to explain the role of the Constitution. Indeed the Constitution is
the supreme law but it is not all. It is there to provide a fundamental framework upon which a
certain area should be regulated. It is now the Act of parliament which should explain how the
above functions of the commission should be executed.
Section 239 of the Constitution should not be read in isolation with other provisions of the
Constitution. It should be read in terms of section 157 (1). This provision posits the following
An Act of Parliament must provide for the conduct of elections and
referendums to which this Constitution applies, and in particular for the
following matters ...
This provision therefore is the one that gives birth to the Electoral Act. Put differently it is the
enabling provision of the Electoral Act. The Constitution therefore after drawing the

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fundamental framework everything should be done by the legislature in terms of the Electoral
Act. The Constitution is the foundational stone upon which the Electoral Act is built.
Going to the Electoral Act now, it provides in section 5 of the Act of the additional powers of
the commission as follows
(a) Undertaking and promoting research into electoral matters; and
(b) Developing expertise and the use of technology in regard to electoral processes; and
(c) Promoting co-operation between the Government, political parties and civil society in
regard to elections; and
(d) keeping the public informed about
- The times and places where persons can register as voters and the progress of the voter
registration exercise; and
- The delimitation of wards, constituencies and other electoral boundaries; and
- The location and boundaries of polling stations and when they are open; and
- Voters rolls and the times and places at which they are open for inspection; and
- Political parties and candidates contesting every election; and
- Voting; and
-Generally, all matters relating to the Commissions work and the electoral process; and
- making recommendations to Parliament on appropriate ways to provide public financing for
political parties.

To be noted is that the functions of the ZEC as listed in this provision where made through an
amendment. The enabling provision was section 239 of the Constitution.
The amendment made in 2013 in terms of the Presidential Powers Temporary Measures Act
did not make any substantial importance; it left a lot to be covered. As said, the Constitution is
skeletal, it simply draws the framework. The Electoral Act should be responsible of explaining
how the Zimbabwe Electoral Commission should exercise its duties. The Act should be
19 | P a g e

dominated by the provisions which seek to show the procedure upon which its rolls are going
to be fulfilled.
Indeed the Act explains the issue of voter education and the issue of registration of voters. The
problem is that it does not explain the other rolls of the commission which becomes the
greatest weakness of the Act. It is from this angle that the need for an alignment process with
the Constitution should be understood. The Electoral Act is national legislation that seeks to
regulate and give content and meaning to the right to free and fair elections and the right to
Vote. It its role again to give meaning to the roles which the commission is obliged to
discharge.
RECOMMENDATIONS
The following recommendations are made in light of what has been explained above regards
to the composition and functions of the commission. They are as follows

The Amendment Bill should be crafted in such a way that it explains the rolls that the

commission is bequeathed with.

The Act should indicate the composition of the commission.

GENERAL PROVISIONS
There are other provisions that are in the Constitution which are not enumerated in dealing
with the electoral law in Zimbabwe. These provisions have a strong impact, as they help to
shape the law in this subject. The provisions will be dealt with separately in achieving the sole
goal that the Electoral Act does not indicate what the constitution demands.
Section 3 of the Constitution provides for the fundamental values upon which Zimbabwe as
a nation is founded on. It is apposite to mention them so as to facilitate a discussion. The
crucial ones for the purposes of this paper are as follows:

Rule of law
Good governance
Gender equality
Respect of human rights

Subsection 2 of the provision then provides the following

A multi party democratic political system

An electoral system base on universal adult suffrage

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-equality of votes
- Free and fair elections.
The values listed above represents the spirit of the Constitution. All the provisions in the
Constitution seek to give effect or life to the values.
This therefore means that any Act of Parliament in Zimbabwe should seek to further the
values in section 3 of the Constitution. In line with this paper, the Electoral Act should
be amended in such a way that all that is said in it seek to conform to the principles that
are outlined in section 3 of the Constitution.
Of critical importance among the values are those mentioned in 3(2) (b) (i) to (iii). They are
directly relevant to this paper. The South African Courts had occasion to comment on an
equivalent provision in their own statutes.
The relevant case is that of African Christian Democratic Party v The Electoral Commission
and other and others18

The court was commenting on section 1 of the South African Constitution19 which said
The Republic of South Africa is one, sovereign, democratic state founded on
the following values:
(d) Universal adult suffrage,
a national common voters roll,
regular elections and a multi-party system of democratic government to
ensure accountability, responsiveness and openness.
In commenting to this provision in the above case, the Court, as per O Reagan J echoed the
following
These foundational values require a court of law, and the Electoral
Commission, when interpreting provisions in electoral statutes to seek to
18 CCT 10/06
19 The Constitution of South Africa Act ,1996
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promote enfranchisement rather than disenfranchisement and participation

rather than exclusion.
This case indicates the importance of the founding values enunciated in the Constitution.
Indeed, the fundamental values should be the model upon which the Electoral Act is crafted
on.
The founding principles are more of an interpretive aid than substantial. They guide the courts
as they advocate for a purposive or a value coherent approach when interpreting statutes in
this case, the Electoral Act. Having highlighted thus, an important recommendation is that the
Electoral Bill contains an interpretation clause that explicitly provides pre-eminence to these
values whenever the question of interpretation comes into play. In this way the Act will achieve
its purpose and avoid the drama witnessed in the case of Kuvarega v Registrar General where
the court stuck to the definition of utter as per dictionary clearly conflating the meaning
intended by the legislature.
Section 3 of the Constitution is supplemented by section 46 (1) (a) and (b)

it provides as

follows
when interpreting this chapter, a court tribunal , forum or body
Must give full effect to the rights and freedoms enshrined in this chapter
Must promote the founding values that outlined in section 3
This provision advocates for an interpretive approach that seeks to give effect to the founding
values of the nation and the Bill of Rights in general. It is important to note that this provision
cannot be inserted in the Electoral Act Amendment Bill but it helps to shape the Bill. The Bill
should be designed in such a way that the provisions of section 3 and 46 of the Constitution
are taken into account. The current Bill is not reflective of these ideas or principles.

RIGHT TO ADMINISTRATIVE JUSTICE

It should be noted that ZEC as a commission has administrative powers that it is clothed with
by the Constitution. For example ZEC may decide on the number of mobile polling stations that

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may be sent to a certain polling station. It being, an administrative board, it is regulated by

section 68 (1) of the Constitution. This provision enunciates the following
Every person has a right to administrative conduct that is lawful, prompt,
efficient, reasonable, proportionate, impartial and both substantively and
procedurally fair
Aptly captured, ZEC is bound by this provision in executing its administrative roles. The Bill
therefore has to make this unequivocally clear. This should be explained in the Act. It may be
feasible for the Act to mention some of ZECs administrative roles. This will be a way of
preventing maladministration.

PRINCIPLES OF ELECTORAL LAW

Like any branch of law, there are certain principles or values that underlie it. It is these
principles that provide a foundational stone upon which the law will be based. The Electoral
law system in Zimbabwe has principles that shape it and it seek to achieve by its nature.
These principles are outlined in the Constitution. They should be seen to be at work in the
Electoral Act. Of significance is to state these principles. They are outlined in section 155 of
the Constitution as follows:

Peaceful free and fair

Conducted by secret ballot based on universal suffrage
Free from violence
Free from fraudulent practices

The Amendment Bill to the Electoral Act should seek to enact an Electoral Act that respects
and is consistent with the values outlined in section 3 and section 155 of the Constitution. It
will be inadequate for the Electoral Act to restate these principles but rather its provisions
should be crafted in such a way that the principles are seen to be at work.
For example it will be unnecessary for the amendment bill to state that there should be free
and fair elections but rather the bill should indicate how it intends to make the elections free
and fair. The following will be examples of providing for free and fair elections. The free and fair
elections should be understood from two angles, firstly from a person who is contesting and

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secondly from a voters point of view. The following will be ideal for an Act of parliament which
respects free and fair elections
In respect of the voters roll
This will be what is meant by a free and fair election

Each constituency registrar and presiding officer be obliged to maintain up-to-date and

accurate voters rolls for their constituencies;

In addition to rolls being available for inspection free of charge by members of political
parties and members of the public in printed form, they must also be available in

electronic form. !
On polling day copies of the voters roll should also be available for party agents and
observers

In respect of voter registration

Registration should be premised on the principle of inclusiveness. It should be

inclusionary in character rather than exclusionary. Put differently it should seek to

register than de register.

The system should be flexible, that is providing for an extended time of voting.
In this, aspect it will be good to draw lessons from what was done in South Africa and
other countries like Zambia. Firstly in South Africa, before the 2004 general elections
the election commission came up with updated statistics on the number of people
eligible to vote in the election and it was 27 million people, those registered to vote
where 20.5 million and the target for new registration was 6.5 million people. This can
be adopted in Zimbabwe in the Bill than to use what has been stated in the omnibus Bill

which is meant to amend 126 statutes at once.

ZEC should have stake holder meetings before the process starts. This should be in

the Act. The meetings will be consultative in nature.

Other ways which can be used is that a person is automatically registered when taking
a new national identity card, passport or a driver licence. The government should not

fear that people are registering; rather it should promote and celebrate that.
Voters registration on the day may also be included in the amendment Bill. This is
when a person registers immediately before he or she votes. This has been tried in the
United States of America with great success.

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Massive campaigns and advertisements should be in the Bill, to raise people s

awareness by civic groups. This is better than what was stated in the General
Amendment Bill.

In respect of Polling stations

That the Commission ensure that there are adequate fixed polling stations and limit the

use of mobile stations as they are open to possible abuse or fraud.

Further they are not open to monitoring and observation. If used at all, should be in
exceptional circumstances approved by the Commission and there should be a definite
timetable as to the places they will be stationed on polling days. It is vital that these

provisions be legislated for as opposed to administrative.

The polling stations should not be too far from other areas especially in the rural areas
where individuals have to walk for distance in order for them to cast a vote. The
distance should be reasonable.

In respect of Campaigning

The multi political party system should be allowed

The security laws should protect any person campaigning
No threats and intimidation to other groups

In respect of results

That they are announced promptly

The above has just been an illustration of the fact that the amendment on the Electoral Act or a
Bill should not merely restate what is in the Constitution, it should actually define with clarity.
The principles upon which our electoral law rests should not necessarily be restated in the Bill
but they should be seen in various provisions of the Act.
The second principle is that the elections whether general or referendums should be
conducted using the system of secret ballot. The purpose of using the secret ballot system was

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explained in the case of Jonathan Moyo and others v Austin Zvoma an Another 20.
Generally the secret ballot system is meant to prevent some sought of violence on a polling
station by people disclosing of their votes to others. Indeed, the present Electoral Act respects
this principle of the secret ballot system but there are still some reforms which are needed so
that the Act is consistent with the Constitution which is the supreme law.
The difficulty has been to those who are disabled, especially the visually impaired. They cannot
see the ballot papers. They end up telling the other person who is a polling officer to vote on
his behalf by telling where he wants the vote to go. By so doing secrecy and its aim has been
defeated. The Amendment Bill therefore should seek to address this problem. Special;
equipment for the blind should be availed so as to promote secrecy which is demanded by the
supreme law.
The third principle is that our electoral law is modelled on the right to adult suffrage. The Act in
this is in tandem with the new constitution. What however has to be done in respect of this is to
facilitate a registration process of those who are adults. They should be educated of their right
to vote. Yes, the current Electoral Act provides for voter education but this paper contests the
way in which it is done. There is room for improvement. In this the Bill should have to mention
effective methods upon which the voter education will be done to the people. The ways of
doing so should be listed in the Act. Among these are:

Door to door campaigns.

The other problem under the current Electoral Act is that, the voter education process is
done periodically. In the Bill, it should be stated that, the voter education will have to go
through and through without having any stop. There should be a team in the country

which is actually employed for doing that. This is important especially in the rural areas.
Adverts may have to be done
Educating primary and secondary school children of their right to vote. Just as the
school pupils recite the introduced national pledge, they should also recite what their

right to vote entails.

Enact public offices responsible for educating people.
Give incentives to the participating populace.

The last principle listed in the Constitution is that, the elections should not be associated with
violence and other malpractices. This is one of the most important principles. The Bill should
20 SC-28-10
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not restate this. We already know, the generality of the citizens from urban and rural areas
knows that. It resonates in the popular election chant, hatidi mirizhonga. The Bills mandate is
certainly not to remind us of the obvious. The mandate is provided below:

To define the acts of violence that may be associated with an election environment
To state the sanction or the punishment that is going to visit any perpetrators of
violence.

To conclude on principles, the above is what I recommend on the Electoral Bill, above the one
than that is in place. There is need to do it all afresh taking into account the demands of the
Constitution.

Maintenance and accessibility of the National voters roll to the public

It is common cause that for an election to be free and fair, all participants and the public must
have full access of a well mantained voters roll. A voters roll is a record or listing of all those
eligible and registered to vote in a particular geographical area 21. This document is vital for
obvious reasons. The foremost of these is that the participants in an election have a vested
interest to know the number of people eligible and registered to vote. Secondly, it is only
through transparency that the voters roll is not manipulated to the disadvantage of a weaker
political party. The incidence of ghost voters is limited by the proper maintenance of the voters
roll. These benefits present a challenge to the body governing elections to properly maintain
and ensure the accessibility of the voters roll.

MAINTENANCE OF THE VOTERS ROLL

The voting public is not static and unchanging. There are dynamics which makes it inevitable
to need to maintain the voters roll. The ephemeral nature of life makes it so that people die.
These people might have been eligible and registered voters and their death will not
automatically delete their names from the voters roll. Some people change citizenship and
others change constituencies. The need to maintain the roll is apparent, and the duty to do so
is imposed on the Zimbabwe Electoral Commission (Z.E.C) in section 239 of the Constitution
21 www.oxforddictionaries.com
27 | P a g e

of Zimbabwe22. The functions of Z.E.C listed therein are to register voters and to ensure the
proper custody and maintanance of the voters roll. As indicated already in this paper, the
constitution only gives the principle based duty which the Act must provide for sufficiently.
Simply put the Act must provide the specific direction of how to reach the destination
contemplated by the constitution. In this sense, the Constitution creates an obligation for the
Act to provide in sufficient detail how Z.E.C will register voters, the dynamics involved in the
registration of voters and the attributes entitling one to be registered as a voter.
THE IMPORTANCE OF MAINTAINING A VOTERS ROLL
This brief section shall highlight why it is vital to maintain a voters roll. The significance of this
shall be to give weight to the recommendations to follow. The basic and fundamental
importance of doing so is that a flawed voters roll can disenfranchise eligible voters and
empower ineligible voters to vote. This is why it is important. The whole process is informed by
overarching constitutional principles such as the rule of law, democracy and the right of
suffrage. Also, maintainance of a proper voters roll allows for the full enjoyment and exercise
of the the right to vote. As clearly identified in case law, the mere existence of the right to vote
without full arrangements for its exercise is both empty and useless 23. It amounts to a brutum
fulmen24. Part of the arrangements underscored above is the maintanance of the voters roll. It
has also been observed that:
The Constitution recognises that it is necessary to regulate the exercise of the right to vote so
as to give substantive content to the right. The existence of, and the proper functioning of a
voters roll, is therefore a constitutional requirement integral both to the elections
mandated by the Constitution and to the right to vote in any of them25. (the emphasis is mine)
This therefore illustrates the obvious advantage that flows from having a proper voters roll.
Simply stated, it allows for the full and proper exercise of the right to vote. The election of
22 Section 239 (d-e)
23 New National Party of South Africa v Government of the Republic of
South Africa and Others 1999 (3) SA 191 (CC) at par 11.
24 Empty noise
25 1999 (3) SA 191 (CC) at par 13.
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members of the National Assembly is necessitated by the presence of common roll. This
position is trite and settled and is also the case in South Africa 26. In addition South African case
law has painted this requirement in black and white. In a leading South African case, three
overarching requirements were set out27:

Every person who is entitled to vote should, if possible, be registered to do so;

No one who is not entitled to vote should be permitted to do so;

Insofar as elections have a territorial component, as is the case with municipal

elections where candidates are in the first instance elected to represent particular
wards, the registration of voters must be undertaken in such a way as to ensure that
only voters in that particular area (ward) are registered and permitted to vote

The vitality of mantaining a proper voters roll therefore goes unchallenged. From a practical
perspective, poor maintanance of the roll can have horrendous consequences. In a study
conducted by ZESN in 2010 appalling and shocking results were gathered. Forty one (41)
percent of the people on the roll were no longer residing at the place registered and of these,
ninety seven (97) percent had not transferred to new wards. A majority of them did not even
know how to transfer. To add insult to injury seven (7) of the Respondents had been registered
erroneously28. These statistics are all illustrative of the gap that exists on the ground and
provide a factual basis for recommendation of provisions in the Act that implement the
constitutional mandate which is to promote democracy. The benefits of mantaining a proper
voters roll are indisputable. What remains is to show what the Constitution provides and marry
that with what the Act fails to provide and from there draw recommendations of what needs to
be done.
CONSTITUTIONAL FRAMEWORK OF MAINTENENCE OF VOTERS ROLL

26 Section 46 (1) (b) of the South African Constitution

27 Kham and Others v Electoral Commission and Another 2016 (2) SA 338
(CC)
28 Zesn voters roll observation 2010
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In terms of section 67 of the Constitution of Zimbabwe, every citizen of Zimbabwe who is

above the age of eighteen has the right to vote in all elections and referendums to which the
constitution or any other law applies. Generally by providing for the right to vote, our
constitution imposes a duty to maintain a proper voters roll. In terms of section 155 (2) (a):
The state must ensure that all eligible citizens that is to say citizens qualified under the Fourth
Schedule are registered as voters.
The starting point in achieving proper maintanence of the roll is having one. This roll must
ensure that all citizens who are willing and eligible are unhindered from appearing on it. This
begs an inevitable question. Who is an eligible citizen? These are covered in the Fourth
Schedule to the Constitution and summarised are :

Of or over the age of eighteen years

Is a Zimbabwean Citizen

Conforms to the additional residential requirements that the Electoral Act may impose
to ensure that voters are registered on the most appropriate roll but any such
requirements are to be consistent with the Constitution in particular section 67.

The first two requirements underscored in the Fourth Schedule are not of much contention. It is
the 3rd requirement that has to be visited particularly with a comparative eye against the
Electoral Act.
THE ELECTORAL ACT ON MAINTENENCE OF VOTERS ROLL
The main position resonating in this paper is that the Act must not simply restate what the
constitution says but must endeavour at achieving the objects of the constitution. The position
advanced is that there is need for an amendment that is specific to the Electoral law. The
current Electoral Act [Chapter 2:13] does not sufficiently provide for maintanence of the roll. In
its section 20, it provides that the voters roll should be kept by the Commissioner. Perhaps
what is more noteworthy is Part V which deals with the residence qualifications of voters.
Special attention needs to be drawn back to the Fourth Schedule of the Constitution which
provides that the residential qualification requirements must be consistent with the Constitution
especially its section 67. The paper will now zoom into this issue. What this provision basically
provides is that in order to be registered as a member of a constituency an individual has to be
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resident in that constituency at the date of the claim. Section 23 of the Electoral Act provides
thus:
(1) Subject to the Constitution and this Act, in order to have the requisite residence
qualificatiokins to be registered as a voter in a particular constituency, a claimant must be
resident in that constituency at the date of his or her claim:
Of particular importance are the words, subject to the constitution. These words guide the
questions that follow. Do these so called residential requirements exceed the right of the
Zimbabwean citizen resident in the diaspora to vote, even though their home residence in
Zimbabwe, and they have a legitimate interest in their home constituency. Does the Act take
into account the fact that the president, who initiates new voter registration, may be a
candidate and therefore also interested in impending elections, creating a patent conflict of
interest. Attention has to go back to the main issue, being that the Act is inadequate as it does
not fully address the issues. Yet another flaw is that the mode of life of citizens is not always
fixed and idle. People move, and in moving they change places. Some move in search of
asylum yet others move into exile. The vast majority move to search for better economies.
These people have a legitimate interest in the affairs of the government. Does the Act provide
for this movement of people? Most importantly on maintanence of the voters roll, the Act must
provide for the period involvement of key stakeholders, in order to ensure a transparent
maintenence process. This takes into account the concerns that have long since been raised
by civic organisations that the roll is usually outdated, filled with names of deceased people
and in instances non-existent people.
ACCESSIBILITY OF THE VOTERS ROLL
Having dealt with maintenence of the roll attention shifts to accessibility. This is an interest
protected in section 155 (2) (C) of the Constitution which provides that the state must take all
appropriate measures including legislative measures to ensure that:
all political parties and candidates contesting an election or participating in a
referendum have reasonable access to all material and information necessary for them
to participate effectively
In addition, the general right to information is protected and enshrined in section 62 of the
Constitution which provides every citizen the right to information. Zimbabwe case law has dealt
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with the issue of accessibility of the roll in the case of Registrar General v Tsvangirai29. The
amendment Bill should take note of the fact that the accessibility of the roll brings transparency
to the whole electoral process.
A voters roll doubtless constitutes that material and information necessary for the parties to
participate effectively. As stated in the introduction, the constitution has pre-eminence over the
Electoral Act, which means that the Act must bring into effect the above provision. The
constitution only goes as far as to provide a skeletal framework which the Act has to flesh.
Therefore the following bullet points illustrate what the ideal electoral act must achieve in order
to pass the constitutionality test

Eliminate all barriers to the voters roll in the present law.

Guarantee full access of the voters roll upon request by any political parties.

Allow prompt inspection of the roll by civic organisations

To allow International observers to inspect the roll

The above will help make the Electoral Act more elaborate.

DELIMITATION OF CONSTITUENCES AND BOUNDARIES

This is another key factor that the bill will have to address fully. In section 161, the constitution
provides that once every ten years the Commission must conduct a delimitation of the electoral
boundaries into which Zimbabwe is to be divided. In terms of the previous law, delimitation was
provided for in section 100 (C) of the old constitution and it used to happen after the
dissolution of parliament. This old position was changed by the emergence of the 20 th
amendment, which among other things provides in section 157 that an act of parliament must
provide for the periodic delimitation of constituencies in accordance with section 161. It is
apparent that the Act falls flat of this requirement. The ideal Electoral Bill must take into
account the period of time specified by the constitution, and provide a criterion through which
this process of delimitation should take place. Such criterion should not be biased towards the
key areas of popularity of any political party but must take place in earnest and good faith. The

29 2003 (1) ZLR.

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ideal Bill would also acknowledge key areas of interest namely that in delimiting the areas to
be considered as wards, the authority would acknowledge the following factors:

Its physical features;

The means of communication within the area;
the geographical distribution of registered voters;
Any community of interest as between registered voters;

All this has to be taken into account by the Act, after all it is the document that adds substance
to the Constitutional provisions.
TIMING OF ELECTIONS
Whenever an election is held the issue of timing can sometimes spark strife and contention.
There may be parties to an election who may be reluctant to go to the polls and those who
may be overzealous. This is because at the very heart of practical politics lies opportunism that
oft comes at the detriment of vital principles of law. The constitution fortunately dictates when
the Elections are to be conducted, or at the very least the range of time within which this is to
be done. An election delayed is democracy denied, and the consequences of delaying
elections are horrendous. The importance of conducting elections at ample time was
underscored in the case of Jealousy Mbizvo Mawarire v Robert Mugabe and Another30. In
that case, Jealousy Mawarire took the president to court seeking an order to compel the
president to announce election dates within a certain period of time failure of which he
contended would violate the venerable principle of separation of powers. This argument stands
when there is any discourse concerning the timing of elections. It is trite that the state is
granted the mandate to govern by the people through democratic process. In doing so the
people vest their trust in the exercise of legitimate and allowable governance which continues
for a fixed terms and terminates through elections at the pleasure of the people. With this in
mind, the people elect their leaders knowing the harrowing possibility of a next election. It is
only fair that nothing delays this election for the people to transfer mandate or to maintain the
mandate to rule. Also noteworthy is that the people will elect a system of governance that is
tripartite in nature in that there will be three arms of government. Most relevant of these is the
legislature, namely the members of parliament who are elected to stand in on behalf of
delimited constituencies. In so doing, a delay in conducting the election, eating into the

30 CCZ 1/13
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effluxion of terms of office of the parliamentarians not only threatens democracy but also
violates the separation of powers. It is expedient that elections happen in their due time.
Section 158 of the Constitution provides thus:
158. Timing of elections
1. A general election must be held so that polling takes place not more than-a. thirty days before the expiry of the five-year period specified in section
143;
b. where Parliament has passed resolutions to dissolve in terms of section
143(2), ninety days after the passing of the last such resolution; or
c. where Parliament is dissolved in terms of section 109(4) or (5) following a vote of no
confidence, ninety days after the dissolution.
The above provision seeks to address the time factor. The provision is peremptory in its
wording and leaves no room for any inferior statute to change that position. The Electoral Bill
has to fully comply with this provision.

BRIEF SUMMARY AND CONCLUSION

This paper has highlighted first the importance of the constitution. It is the supreme law of the
land, and every statute must reflect it in both spirit and substance. The Electoral Act, as it is
does not fully implement and provide for the objects of the constitution in sufficient detail. This
is true even with the amendments of S.I 85 of 2013. The General Laws Amendment Bill takes
a wholesale approach to amendment of statutes and for this reason it is not thorough and
lacks precision in bringing the spirit of the constitution to life. The changes it brings are mostly
cosmetic. An ideal Electoral Act will address the key challenges in respect of the right of the
citizens to vote, the Electoral Commission particularly its independence, the maintenance of
the voters roll and the delimitation of electoral boundaries. In addition, the paper has proposed
that the ideal Electoral law, impose that the courts ought to adopt a teleological interpretation
when constructing electoral statues. In the very end, the paper has sounded one inevitable
truth, namely that the sanity of electoral processes in Zimbabwe rests in the hands of those
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making the law. It will either shatter or advance. One thing remains true: that should the
craftsmen of the law fail to take these considerations into account they will owe a lifetime debt
to democracy.

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