ELECTORAL BILL, 2020

ARRANGEMENT OF SECTIONS PART I PRELIMINARY

Section

1 Short title and date of commencement.

2 Application.

3 General principles of democratic elections.

4 Interpretation.

PART II ZIMBABWE ELECTORAL COMMISSION

5 Corporate status and ancillary power of Commission.

6 Immunity of Commission, Commissioners etc.

7 Additional functions and powers of Commission.

8 Delegation of functions.

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Media and Elections

  • Enforceable legal provisions on the regulation of the media reportage of elections must be enacted, and implemented, particularly for the state media.
  • The Zimbabwe Broadcasting Authority (ZBA) must be transformed into a truly independent institution that effectively and impartially regulates public, private and community broadcasters.
  • ZEC media monitoring must be timely and effective. It must put in place effective mechanisms to ensure compliance. The ZEC media monitoring report must be shared widely.
  • There must be mechanisms against hate speech and fake news on social media throughout the electoral cycle. The legal framework must also embrace media diversity and inclusion.
  •  
    Assessment:
    A number of media laws were gazetted after the 2018 elections. These include:

  • The Access to Information and Protection of Privacy Act [Chapter 10:27]: was repealed and replaced by three sets of legislation :
  • (a) Zimbabwe Media Commission Bill,
    (b) Freedom of Information Bill, and
    (c) Protection of Personal Information Bill.

    There are various media laws that are under consideration. While the government has since gazetted the Freedom of Information Bill and the Zimbabwe Media Commission Bill, it is regrettable that the two Bills were generally viewed as a far cry from meeting the country’s constitutional yardsticks as envisaged under Sections 61 and 62 of the Constitution which guarantees freedom of expression, media freedom and access to information[1].

    MISA Zimbabwe is of the view that the Broadcasting Service Act (BSA) “requires extensive amendment” and in addition the government needs “to institute and implement a practical ZBC turnaround strategy that will see the public broadcaster (Zimbabwe Broadcasting Corporation) produce and broadcast modern, quality and relevant public interest programming”[2] .

    The current licensing regime is viewed as prohibitive and service as a barrier to local commercial and private players with interest to take part in Zimbabwe’s media and broadcasting sector. The licensing fees need to be reviewed in line with section 61 (3) of the Constitution which stipulates that Broadcasting and other electronic media of communication have freedom of establishment subject only to State licensing procedures that;  (a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government or by political or commercial interests.

    Statutory Instrument 33 or 2008[3] requires journalist already registered with the Zimbabwe Media Commission to re-register with the ZEC during an election. This makes it expensive for free-lance journalists and media houses to get their journalists accredited to cover elections.

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    [1] Misa Zimbabwe State of the media 2019 report < https://zimbabwe.misa.org/wp-content/uploads/sites/13/2020/01/State-of-the-media-report-2019-MISA-Zimbabwe.pdf>

    [2] https://zimbabwe.misa.org/2020/02/12/zimbabwes-broadcasting-services-act-requires-extensive-amendment/

    [3] http://archive.kubatana.net/html/archive/legisl/080616zec1.asp?sector=ELEC&year=2008&range_start=211

    Election Dispute Resolution

  • The legal framework must put in place other dispute resolution mechanisms to ensure the peaceful resolution of election related disputes throughout the electoral cycle, including dealing with cases of post-election retribution. Independent commissions should be strengthened, especially the National Peace and Reconciliation Commission (NPRC) and the Zimbabwe Human Rights Commission (ZHRC) to effectively execute their respective roles in electoral matters. Electoral petitions must be time-framed in the Electoral Law. The judiciary must be compelled to avail full judgments within a specified period.
  •  
    Assessment:
    A review high profile cases brought before the judicial courts after the harmonised elections for the 2008, 2013 and 2018 electoral cycles can help us make an assessment of the role that the judiciary has been playing towards the achievement, maintenance and promotion of electoral democracy in Zimbabwe[1]. The judiciary has a role to play in electoral reforms, through adjudication, dispute resolution and recommending legislative and institutional reforms. For Zimbabwe, the judiciary continue to miss, or deliberately evade this important role, thereby proving incapacitated to contribute to meaningful electoral reforms in Zimbabwe.

    A general assessment is that the judiciary has not pushed for electoral reforms; they have not caused any meaningful or progressive movement in the quest for comprehensive electoral reforms.

    In high profile cases, the judiciary has either shied away from comprehensive adjudication by hiding behind technical, procedural prerequisites instead of seizing the moment to develop jurisprudence for use by Parliament and citizens

    [1] The full list of court cases reviewed can be found in the ZESN research paper entitled “Assessment of the Justice Delivery System and its Contribution to Electoral Reforms in Zimbabwe”.

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    Election Day and Results Management

  • The legal framework must be reviewed to ensure a more transparent results transmission system where presidential results from each polling station are transmitted directly to the national results collation centre. Any changes to the results should be made in the presence of observers and political party agents. ZEC should consider the total valid votes cast rather than the total votes cast in the counting of election votes and avoid errors that may necessitate the revision of announced results.
  • Further, ZEC must invest in a real time results transmission system. ZEC must pursue an open data policy that includes the prompt display of election result forms at polling stations for each polling station, disaggregated by demographic variables and post those forms on its website.
  •  
    Assessment:
    In the 2018 electoral cycle, the results management system was not altered significantly. Issues from previous electoral cycles remain, including those related transparency, accuracy and verifiability of results.

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    Persons with Disability

  • ZEC must ensure mechanisms are put in place to facilitate voting by people with disabilities that guarantee the secrecy of the vote. Polling stations must be accessible to persons with disability.
  •  
    Assessment:
    Persons living with Disabilities (PWDs) are not adequately represented in Parliament. There is provision for two people with disabilities in Senate. The PWDs community recommend that a quarter for PWDs be made mandatory to support an increase in number of PWDs legislators. The seat allocated to PWDs should be spread across all the provinces.

    There is need to domesticate the Convention on the Rights of Persons with Disabilities (CRPD) which Zimbabwe ratified in 2013[1], so as to guide efforts by government and other stakeholders’ interventions meant improve PWDs participation in political and public life[2].

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    [1] https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=195&Lang=EN

    [2] https://www.zesn.org.zw/wp-content/uploads/2019/10/ZESN-Position-Paper-on-the-Participation-of-People-with-Disabilities-in-Elections.pdf

    Youth

  • The legal framework must provide for youth participation as voters, candidates and as decision-makers.
  •  
    Assessment:
    The Constitutional Amendment number 2 proposes adding 10 reserved seats for the youth in the lower house of Parliament. Youth Organisations such as the National Association of Youth Organisations (NAYO)   and Youth Empowerment and Transformation Trust (YETT) argue that the youth were not consulted when the government came up with the provisions for youth participation in Constitutional Amendment Number 2.  Youth organisations believe the proposed youth seats should come from the existing 210 seats and that;

  • Youth quotas should be provided for in Provincial Councils.
  • Youth should be included in 20-50% of government structures.
  • There is need for a National Youth Policy which informs a Youth Act, which is yet to be established.
  • There is need to lower age thresholds to allow for youth to be eligible to run for national assembly as well as presidential races[1].
  • [1] https://www.zesn.org.zw/wp-content/uploads/2019/11/ZESN-Position-Paper-on-Youth-Participation-in-Elections-and-Governace-Processes-in-Zimbabwe.pdf

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    Women

  • Appropriate provisions must be made that make it mandatory for political parties to observe quotas for women. There must be gender parity, backed by law, in all decision-making positions and institutions.
  •  
    Assessment:
    The ZESN draft political party’s regulation bill has provisions that require political parties to ensure that they are inclusive in terms of making substantive appointment in their respective parties that women, youth and other disadvantaged groups are included in party structures.

    On the other hand, Constitutional Amendment Bill number two proposes the extension of quotas for women by an additional 10 years. Women’s groups’ view is proposed extension as inadequate position, and inconsistent with Constitutional provisions.  Recommendations from women’s organisations include:

  • Section 17 of Constitution which speaks to the need for gender balance should be respected, thus political parties should be obligated to reserve at least 50% seats for women in the Presidium and Parliament.
  • In addition 50% of the direct election seats should be reserved for women including young women and women with disabilities. Government must ensure that within the 50% direct election seats, 25% of the seats are reserved for young women between the ages of fifteen and thirty-five including young women living with disabilities.
  • At local government level all direct election seats to be designated according to zebra system by gender with ward designated for women appearing 1st on the delimitation list and ward designated for men appearing second.
  • On Nomination of Candidates, ZEC must reject papers that do not reflect 50.50. This provision must be couched in peremptory terms.
  • Political Party Finances Act must be amended to ensure that only political parties that meet the constitutional standard of 50. 50 receive resources under the Act[1].
  • Institutional, operational and budgetary punitive measures against parties that fail to comply with the stated provisions must be clearly stated in relevant laws such as the Electoral Act, and the Political Party Finances Act.
  • The Zimbabwe Gender Commission is exploring the possibility of sponsoring the Gender Equality Act where all the gender equality provisions can be brought and expressed in a manner that can make the rights enshrined in the Commission justiciable.

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    [1] https://www.wcoz.org/2018/08/29/placing-womens-rights-on-the-presidents-agenda/

    Political Parties

  • Parties should be compelled by law to comprehensively deploy polling agents to observe key electoral processes. There is also need to regulate political parties. The legal framework must provide for the disclosure and audits of parties’ sources of funding and the use of campaign funding.
  • Multi-party Liaison Committees must made permanent features of the electoral cycle.
  •  
    Assessment:
    In addition to provisions at law that encourage comprehensive deployment of party agents as well as making Multi Party Liaison Committees (MPLCs) a permanent feature around the electoral cycle, ZESN is currently engaged in multiple conversations to solicit input on the feasibility of political party regulation in Zimbabwe.  MPLCs are not yet a permanent feature on the country’s electoral landscape, the structures continue to be set up on an adhoc basis.

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    Election Administration

  • There is need to mitigate conflict and suspicions around the ballot paper by ensuring transparency in ballot paper designing and printing through engagement of electoral stakeholders. It is also critical that the implementation of postal voting abides by the principles of free choice and secrecy of the vote contained in the Constitution and the Electoral Law. Special voting, amenable to transparent electoral principles and observation must be reinstated to guarantee the right to vote to those unable to vote on Election Day.
  • The observation of electoral processes must be made easier by removing accreditation fees and the requirement for applicants to physical present themselves in person at accreditation centres in line with international best practice.
  • Polling stations added in the run-up to elections must be widely publicised to ensure they are known by relevant stakeholders, and to reduce suspicions.
  • Election administration must conform to open data principles. ZEC must adopt an effective communications strategy to ensure that it gets and sustains confidence of its stakeholders.
  • ZEC must publish audit reports on expenditure on elections administration.[/su_list]
  •  
    Assessment:
    Assessment for the 2023 election cycle is ongoing. Currently there is no movement on the election administration issues listed above.  During the COVID -19 pandemic the ZEC had responded commendably by developing a COVID-19 Policy to guide the work of ZEC during the COVID-19 pandemic. Unfortunately the Policy was not put to the test as the Government, through the Ministry of Health and Child Welfare suspended by-elections indefinitely through the use of Statutory Instrument 225A of 2020.

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    Delimitation of Constituencies

    Zimbabwe has conducted three sets of elections[1] on the basis of one set of delimitation. 2008, 2013 and 2018 elections. Boundary delimitation for the 2023 elections should be timeously conducted. There is need to rationalise constituencies that are too big and those that are too small. Clear regulations for delimitation must be put in place.
     
    Assessment:
    There been significant improvement in the area of legislation that has an impact on the boundary delimitation process. The government accented to the Census and Statistics Amendment Bill of 2020. The Bill amended the Census and Statistics Act (Chapter 10:29) to allow for the national censuses to be conducted in a manner that will enable the Zimbabwe Electoral Commission to take into account census data when delimiting electoral boundaries every 10 years as required by section 161 (1) of the Constitution. The Bill has also moved forward the Census that was due in 2022 to be completed by 1 July 2021.

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