The right to vote is not guaranteed in subsidiary law. For example, Zimbabweans in
the diaspora, those in hospitals, the elderly, the infirm and those in places of
detention remain unable to vote.
The Amendments fail to address the issue of having Electoral Court judges in the
wake of Section 83 of the Constitution that prohibits judges from sitting in more
than one court.
In addition, other outstanding issues remain that include the responsibility on ZEC on
the delimitation of constituencies and ward boundaries in terms of Sections 160 and
161 of the Constitution.
Gap analysis and a framework for alignment of subsidiary legislation with the Constitution
The framers of the Constitution clearly spelt out the minimum standards of any election
held in Zimbabwe.i Ultimately any election must be peaceful, free and fair; the obligation on
the State is to put in place enabling legislation, together with other policy and
administrative measures that guarantee an election that meets the minimum constitutional
threshold.
An analysis of the Electoral Act [CHAPTER 2:13] reveals that despite a raft of amendments
enacted over the years including the last amendment in 2016ii, subsidiary legislation still
falls far short of reflecting the letter and spirit of the Constitution. This policy is not
exhaustive but focusses on the key areas requiring attention given the short period left
before the next election. These issues if left unaddressed may affect the credibility of the
2018 election. The key issues are discussed in more detail below.
The holding of a peaceful, free, fair and credible election underpins the well-established
principles of good governance and democracy. Section 155 of the Constitution aptly
entrenches these important principles. The task of delivering an election that measures up
to these ideals is exclusively vested in the Zimbabwe Electoral Commission (ZEC).iii. The
cumulative import of Sections 155, 156, 233, 238, and 239 of the Constitution is that an
independent electoral management body that guarantees a free, fair and credible election
must be established. The subsidiary electoral laws must therefore spell out (with greater
specificity) the role of ZEC and the provisions must reflect the spirit of independence,
integrity and transparency, efficiency and effectiveness set out in the Constitution.
One of the key roles exclusively given to the Commission is the registration of voters1 and
the maintenance of the voters’ rolls and registers.ivThe registration of all eligible voters and
the creation of an up-to-date and comprehensive voters’ roll is an integral part of and
represents the first key step towards the holding of a free, fair and credible election.
Unfortunately, in Zimbabwe the handling of the voters’ roll has remained a contested arena
1
Section 239 (c)
2
Policy Brief: A Call For Alignment Of Laws With The Constitution ©ZESN 2017