How will the New Constitution Impact on the Coming Elections?
The prospect of a general election is drawing nearer and there is concern about whether institutional safeguards will be in place to ensure that the election is free and fair. In this Constitution Watch and the following one we shall examine whether the new constitution itself will put in place any of the necessary safeguards and what additional safeguards will be needed to permit free, fair and peaceful elections to be held.
When we refer to the new constitution we mean the draft prepared by COPAC, but we shall also note any differences that would be made if the provisions in the proposed ZANU-PF amended draft are incorporated.
Most Provisions of the New Constitution Will Only Come into Force After the Coming Elections
When the new constitution has been adopted, it is the provisions governing the coming elections [see below] that will come into force. It is only after the coming elections that most of the other provisions in the new constitution will come into operation. It must be stressed that there are no mechanisms in the new constitution for ensuring free and fair elections. Although the new constitution lays down the principles that elections must be free and fair, and that members of the civil service and security forces must be non-partisan, it does not establish any mechanisms for ensuring that they are. [The ZANU-PF amended draft does not require members of the security forces to act in a non-partisan manner]
Provisions in New Constitution Affecting Coming Elections
The provisions of the new constitution relating to the election of the first President and Parliament, as well as elections to provincial councils and local authorities, will come into force as soon as the new constitution is promulgated as an Act of Parliament. Those provisions are as follows:
Presidential, parliamentary, provincial and local authority elections will be held concurrently, as they are under the present constitution. [Under the ZANU-PF amended draft, there will be no provincial elections]
Who can Vote
In order to vote, citizens will have to be registered on a voters’ roll. Citizens who are currently registered as voters will remain so, but a further registration exercise will be conducted for at least 60 days to allow further voters to be registered. The qualifications for registration will be the same as at present, except that:
· New citizenship provisions will apply, so people who were citizens by birth, but lost their citizenship because of the prohibition against dual citizenship will once again be Zimbabwean citizens and entitled to registration as voters. [This is also so under the ZANU-PF draft.]
· All prisoners will be qualified to vote [at present prisoners serving sentences of six months or more are disqualified].
· It is not clear if citizens living outside Zimbabwe will be entitled to vote, because the new constitution allows the Electoral Act to lay down residence qualifications for voters. The Electoral Act currently requires voters, with very few exceptions, to reside in Zimbabwe in order to be registered on a voters’ roll, so unless the Act is amended members of the Zimbabwean Diaspora will not be allowed to vote.
Delimitation of constituencies
Elections and the delimitation of constituencies will be conducted by an Electoral Commission, as at present, and the members and staff of the current Commission will continue in office under the new constitution. There will be 210 constituencies for National Assembly elections, the same number as the House of Assembly constituencies under the present constitution. Hence a fresh delimitation of constituencies will not be necessary before the coming elections, though it may be desirable.
Until it is replaced, the current Electoral Act will continue to govern elections under the new constitution, though it will need extensive amendment, over and above the amendments made by the just gazetted Electoral Amendment Act, as will be outlined in Part II of this Constitution Watch. One provision of the new constitution that is worth mentioning is clause 17.3, which prohibits the President or Parliament from altering the electoral law once an election has been called.
Election of President
The President will be directly elected by voters, as at present. Although the new constitution does not say so expressly, if none of the candidates gets an absolute majority [50% + 1] of the votes cast in a presidential election, a run-off election will be held between the two candidates who received the highest number of votes, as provided for in the current Electoral Act, unless this provision is amended.
Under the COPAC draft constitution, presidential candidates will each have to nominate two running-mates who, if the presidential candidate is elected, will become first and second Vice-Presidents. Voters will not vote directly for a presidential candidate’s running mates, but they will be regarded as having been elected as Vice-Presidents if their candidate is elected President. [The ZANU-PF draft has no provision for running mates: the Vice-Presidents will simply be appointed by the President after the election.]
Two Houses of Parliament
There will be two Houses of Parliament, as at present, but some members of Parliament will be elected on a system of proportional representation, others on the present first-past-the-post system. There will be no appointed members.
The number of National Assembly constituencies will be the same  as those of the present House of Assembly. However, there will be an extra sixty women members elected on a system of proportional representation based on the votes cast for the constituency members.
Sixty senators will be elected on a closed party-list system of proportional representation based on the votes cast in each province for constituency members of the National Assembly. In addition there will be two senators elected to represent persons living with disabilities; the manner of their election is left to the Electoral Act. There will be further senators who will not be elected by voters: 16 chiefs elected by provincial councils of chiefs; the president and vice-president of the national council of chiefs; and eight provincial governors.
The new constitution will establish provincial councils for every province except Bulawayo and Harare, and each council will have ten members elected on a closed party-list system of proportional representation based on the votes cast in the province concerned for constituency members of the National Assembly. [In the ZANU-PF draft none of the members of the provincial councils will be elected.]
The draft constitution declares that there must be urban and rural local councils, whose members must be elected by voters in their areas. General elections of local authority councillors must be held simultaneously with presidential and parliamentary elections, as mentioned earlier.
Legislative and Administrative Framework Needed Before Coming Elections
None of the constitutional provisions outlined above will affect the conduct of elections by preventing electoral violence or malpractice. Even if the new constitution is enacted, a great deal will have to be done to put a legislative and administrative framework in place to ensure that the coming general election is free, fair and peaceful — and this framework must be put in place quickly. The President has indicated that he would like to hve an election in March next year, and — as we shall elaborate in Part II of this Constitution Watch — under the present constitution the current Parliament can only last until 29th June and the very latest that general elections can be held is 29th October 2013.
In Part II we shall deal with the legislative and administrative measures that will have to be taken before the next general election can be held.
In Part I we outlined the changes that a new constitution will make to Zimbabwe’s electoral system. In this Part we shall set out what other major steps need to be taken to ensure that the next general election is free, fair and peaceful and not a repeat of the 2008 debacle.
The New Constitution Alone will not Create Conditions for a Free and Fair Election
During the long-drawn-out constitutional drafting process, commentators, press reports, etc, have suggested that the new constitution would go a long way to ensure the next general election would be free and fair. In fact the new constitution will not in itself create those conditions, as we indicated in Part I. A great deal will need to be done to create conditions under which free and fair elections can be held.
SADC Heads of State and government at their recent summit at Maputo urged the parties to the GPA: “to develop a roadmap together with timelines that are guided by requirements of the processes necessary for the adoption of the constitution and the creation of conditions for free and fair elections to be held.” This roadmap was in fact agreed by the parties and presented to an extraordinary SADC summit in Johannesburg in June 2011, but it left some unresolved issues and failed to state some time-lines. Very few of the “agreed issues” have been implemented. Now, with time running out before the next elections must be held, the SADC Organ Troika is reported to have recommended that a Cabinet mechanism be established to secure agreement on the unresolved issues and oversee implementation of the roadmap. [There is no evidence yet that this Cabinet mechanism has been set up.]
Any legislation to regulate the conduct of the next election, must be passed before the 29th June 2013 [because after that there will be no Parliament to pass it] and the general election itself must be held before the 29th October 2013. [Note: the life of Parliament could be extended by Parliament passing an amendment of the Constitution to that effect; otherwise it can only be prolonged if Zimbabwe is at war or if there is a state of public emergency.]
What Must be Done Before Free and Fair Elections can be Held
1 Measures directly related to elections
As outlined in Part I, the new constitution spells out who is to be elected and who will be entitled to elect them, but apart from requiring some elections to be held under a system of proportional representation it does not deal with the way in which elections are to be held. A great deal of legislative and administrative work remains to be done.
The Electoral Act will have to be amended or replaced
Under the new constitution some seats in the Senate and the National Assembly and in provincial councils will be filled by elections on a system of proportional representation. [Note this applies to provincial councils under the COPAC draft; but ZANU-PF want this changed – see Part I] The Electoral Act currently requires all elections to be held on a first-past-the-post system so the Act will have to be amended to allow the holding of elections under the new system. The elections of provincial council members will also have to be provided for [unless the amendments proposed by ZANU-PF are adopted]. Very extensive amendments will be needed to do this — far more than those contained in the recently-gazetted Electoral Amendment Act — so the Electoral Act may have to be replaced in its entirety.
The voters’ roll will have to be revised or a new roll prepared
The existing voters’ roll is generally regarded as completely inaccurate, stuffed with the names of voters who have long since died. Although the Registrar-General has stoutly defended the roll’s accuracy, his defence has not been endorsed by the Zimbabwe Electoral Commission, which is nominally responsible for compiling the roll. An accurate voters’ roll is essential for the holding of a fair election, so the existing roll will have to be revised or a new roll will have to be compiled. This will take at least six months — far longer than the 60 days specified in the new constitution — though the work could begin immediately, and new voters such as prisoners provided for by the new constitution could be added later.
New delimitation exercise desirable As pointed out in Part I, the new constitution will not alter the current number of constituencies for elections to the lower House of Parliament, and there will be no other constituency-based elections. Hence the next general election could theoretically be held on the basis of the existing constituencies. It would, however, be better to have a fresh delimitation exercise, because there have been doubts about the accuracy and fairness of previous delimitations and there has been a new population census since the last one. A fresh delimitation will take at least six months if it is to be done properly, because delimitation is not just a matter of drawing lines on maps: the present Constitution and the COPAC draft [and the ZANU-PF amended draft] require the Electoral Commission to consider “any community of interest between registered voters”, and one cannot do that without asking voters if they have a community of interest.
Voter Education Voter education will have to be undertaken by ZEC or ZEC approved organisations. There will inevitably be large numbers of young, first-time voters on a properly-compiled new voters roll. Even for long-standing voters, education will be necessary to ensure that there is understanding of the changes made to election procedures by a new Electoral Amendment Act.
Preparations for monitoring of elections
With a past history of electoral violence and contested election results in Zimbabwe, the system for national and international electoral observers needs revision to ensure that:
· the observers are drawn from a wide spectrum of opinion
· the observers are allowed to monitor all aspects of the electoral process, from the registration of voters to the announcement of results
· the monitoring period extends from well before the election itself until at least a month after the results have been announced.
The Electoral Act does not provide for this extended type of monitoring, though the Electoral Amendment Act which has recently been gazetted will allow observers to be accredited to cover the period before an election is actually called. If the first elections under the new constitution are to be credibly monitored, the legal position of observers will have to be strengthened.
2. The Electoral Environment
For an election to be free and fair it is not enough for voters’ rolls to be accurate, for constituencies to be properly delimited or for the Electoral Act to be clear and comprehensive. The environment in which the election takes place must allow all parties and candidates that wish to do so to contest the election and put their cases fully to the electorate.
Some of the mechanisms and measures that are needed were specified in the Zimbabwe Elections Roadmap which, as already mentioned, was tabled at an extraordinary SADC summit in June 2011:
· The State-owned broadcasting and print media must be reformed to make them politically neutral, enabling the electorate to hear views other than those of ZANU-PF. This may be done, as suggested in the Roadmap, by appointing new boards of the Zimbabwe Broadcasting Company, the Broadcasting Authority of Zimbabwe and the Mass Media Trust.
· New, genuinely independent, broadcasters must be licensed.
Rule of law
· The commanders of the Police Force, the Defence Forces and the CIO must commit themselves to operate in a non-partisan manner, consistent with their obligations under article 13.1 of the GPA. This is particularly important in the light of statements by senior army officers that they will not recognise a non-ZANU-PF government.
· More importantly, the commanders must take appropriate measures to prevent politically-motivated violence on the part of the members of their forces and, generally, to ensure the political neutrality of their forces.
Freedom of assembly and association
Even though the new constitution guarantees these freedoms, its provisions will not be effective until they are incorporated into statute law. The Public Order and Security Act [POSA] must be replaced or further amended to reduce the discretion given to police officers to prohibit political meetings, and to ensure that any discretion they do have is exercised only to avert readily foreseeable disorder. Until this is done anyone who wants to challenge the existing law will have do it through a constitutional application to the Supreme Court, and that is likely to take so long that the election will be over before a decision is reached.
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