constituencies and electoral divisions has to be conducted openly and with
consultation. ZEC must also gazette a notice of its intention to review or fix electoral
boundaries, in a manner that ZEC deems appropriate.30 As far as possible ZEC must
entertain representations from voters, political parties and other interested persons and
bodies likely to be affected by decisions made by the Commission.31 The provisions
facilitating consultation are in line with the principle of transparency, however the
fact that ZEC is not obliged to take into consideration such representations defeats the
purpose of these provisions.
The Electoral Act still provides that the President has to notify ZEC of the date on
which they must commence the determination of limits of wards and constituencies.32
In terms of section 37B of the Act, the President must also consult ZEC and fix dates
in such a way that there is adequate time to prepare a final report in terms of section
100J of the [old] Constitution. This exercise enables ZEC to fix the election centres.
These provisions were drafted in terms of the old Constitution, but now violate
provisions of the current Constitution on the independence and impartiality of ZEC.
The current Constitution also no longer requires the President to give dates of when
ZEC is to determine electoral boundaries. Section 37B, applying section 100J of the
old Constitution, was introduced by the Electoral Amendment Bill of 2011, and is
clearly now outdated and ultra vires the Constitution. The legal framework does not
address the issue of non-discrimination of minority groups in the delimitation of
constituencies. The Constitution has general non-discrimination clauses in the bill of
rights that apply to everyone.
Although the Electoral Act elaborates on the nitty-gritties of mapping, constituencies
and wards for elections, the provisions have not yet been fully aligned with the
Constitution. While these two documents contain provisions that seek to advance the
five principles highlighted in section 3, there is still an opportunity to enhance these
provisions to enable the delimitation process to be transparent, efficient, effective and
independent.
30
Section 37A(1) of Electoral Act.
Section 37A(2) of Electoral Act.
32
Section 37B of Electoral Act.
31
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