delay and, in any event, within a proposed period of 72 hours of the closing of the
polls.
2. Zimbabwe Electoral Commission
The legal framework for the ZEC appears comprehensive and detailed. However, as
above, there are inconsistencies and gaps between relevant constitutional
prescriptions and provisions of the Electoral Act relating, notably, to the exercise of
the ZEC’s powers in fulfilment of its constitutionally and legislatively mandated
responsibilities, as well as the effectiveness of established standards and rights.
Notably, Section 239(k) of the Constitution empowers the ZEC ‘to receive and
consider complaints from the public and to take such action in regard to the
complaints as it considers appropriate’. Section 4A of the Electoral Act establishes
the ZEC as (1) ‘a body corporate capable of suing and being sued and, subject to the
Constitution and this Act, of performing all acts that bodies corporate may by law
perform’. Additionally, (2) stipulates that the ZEC ‘shall have power to do or cause
to be done, either by itself or through its agents’ essentially all foreseen operations
and (pursuant to the Sixth Schedule) ‘to do all such things as may be necessary,
conducive or incidental to the exercise of its powers and the performance of the
functions of the Commission’. In spite of these provisions, it appears, nonetheless,
that the ZEC is not specifically empowered with effective implementation of all its
responsibilities (e.g. pursuant to Section 160J of the Act, to police election-related
hate speech or incitement in the media).
This is especially so with regard to decisions it may make over complaints received
(other than those foreseen for consideration by specified judicial recourses). In this
respect, there is no established mechanism (such as a dedicated committee, as the
ZEC is empowered to establish) or published procedures for the receipt or treatment
of complaints. Such a mechanism and procedures, broadly publicised, to receive,
consider and decide upon complaints (including possible orders), in a timely manner,
would be conducive to greater effectiveness and to the promotion of public
confidence.
The guarantee of the ZEC’s independence is rendered uncertain in the light of its
dependency, in practice, on the Minister of Justice, and financial allocations from
the executive. The stipulations in the Constitution (Section 235) guaranteeing
independence should be aligned with the Electoral Act and practice with the effect
that the ZEC reports directly to Parliament and secures its own funding and the
financial resources for its mandated responsibilities (i.e. the conduct of elections
and referenda) free from undue influence (e.g. to obtain its allocation as part of the
Consolidated Funds).
With respect to administration, the provision of full and timely funding of human
and material resources prescribed by law or necessary for the fulfilment of the ZEC’s
mandate would contribute to the effective conduct of elections, including crucial
efficiencies on Election Day and in the counting, tabulation and related transparency
20
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