C Electoral Legislation The legal framework applicable to the 2018 harmonised elections generally provides adequate conditions for competitive elections, if implemented in good faith. The Electoral Act, amended in several instances, ought to be revised again in order to align its provisions with the new Constitution, which stipulated that an Act of Parliament must provide for the conduct of elections and referendums in accordance with s.157 of the Constitution.14 The latest revision of the Electoral Act was passed on 28 May 2018, which was very close to the time of election and not in accordance with best practice. The Electoral Amendment Act 2018 contains some advances in relation to the previous law, related to the necessary provisions for the Biometric Voter Registration (BVR) and the closure of voter registration two days after proclamation of the election date, the extension of the allowable period of non-residence in a constituency from twelve to eighteen months before being removed from the voter register, the facilitation of voter education activities of citizens and associations by repealing the requirement of channeling foreign funds through ZEC, the establishment of additional polling stations in congested areas and limiting the excess ballot papers printed for any election to 10 per cent. The Electoral Act now provides for the set-up of the national Multi Party Liaison Committee (MPLC) before the close of nominations and at any time after the beginning of the six-month period before the end of the Parliament’s five-year term, and the establishment of the Electoral Court as a division of the High Court to align with S.183 of the Constitution, while a significant amendment was the criminalisation of intimidating statements by people that they can discover how a voter has casted his/her ballot. Recommendation 1: The Electoral Act should be aligned with the 2013 Constitution, in particular those provisions related to the constitutional right to vote (incuding postal voting for homebound voters and those in hospitals and penitential institutions), reinforcement of the independence of ZEC in relation to responsibility for its own regulations, voter registration, and accreditation of observers, as well as the required approval of regulations. Nevertheless, a number of the substantive proposals put forward by the opposition were not included, resulting in some provisions of the EA not being fully aligned with the Constitution and not giving effect to its letter or spirit. These concern mostly the reinforcement of the independence of the ZEC in relation to the implication of the office of the Registrar General in the voter registration, the accreditation of observers and the requirement of the approval of the Minister of Justice, Legal and Parliamentary Affairs of the regulations adopted by the ZEC;15 and the nonexpansion of the right to postal voting to people in the diaspora, homebound voters and voters in 14 The Electoral Act was initially adopted in 2004 and has since undergone a series of amendments, the previous one of 2016 incorporating the amendments made by the General Laws Amendment Act (No. 3 of 2016). Earlier it had been modified by the Electoral Amendment Act (No. 6 of 2014) and the National Prosecuting Authority Act (No. 5 of 2014] as well as by the Electoral Amendment Act, 2012 (No. 3 of 2012), the Local Government Laws Amendment Act, 2008 (No. 1 of 2008) and the Electoral Laws Amendment Act, 2007 (No. 17 of 2007). The Electoral Amendment Act (No. 6 of 2018) was gazetted on 28 May 2018. 15 In its judgment No. CCZ 05/18 of 1 June 2018, the Constitutional Court dismissed an application against the Minister of Justice, the ZEC Chairperson and the Attorney General challenging S.192(6) of the Electoral Act that requires the ministerial approval of the regulations adopted by the ZEC. The Court ruled that “the approval sought from the Minister is not that so that he gives his personal views concerning the substance of the regulations, but it is sought in order for him to exercise his administrative functions as the lawful Administrator of the Electoral Act”. 7