STATUTES REQUIRING CONSTITUTIONAL ALIGNMENT __________________________________________________________________________________ • The right to vote. Under section 67(3) of the Constitution, every citizen has the right to vote in all elections. The present Act denies the vote to members of the Diaspora, to prisoners, to hospital patients and even to electoral officers and members of the security services who are deployed outside their constituencies on polling days. • Voter registration: The Act must lay down clear selection criteria for temporary staff used in the voter registration exercise and how ZEC will control them. • Removing ZEC’s monopoly over the provision of voter education, which infringes freedom of expression guaranteed by section 61 of the Constitution. • The election of the President and Vice-Presidents under section 92 of the Constitution. The current Act does not provide for their election, though the need for these provisions will not arise until 2023 (see paragraph 14 of the Sixth Schedule to the Constitution). • The Electoral Court. This is constituted as a separate court under the Act, though it is staffed by judges of the High Court. Under section 183 of the Constitution, judges cannot be appointed to sit in more than one court, so their appointment to both the High Court and the Electoral Court is unconstitutional. The simple remedy is to re-create the Electoral Court as a specialised division of the High Court. The Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Bill, 2016 (H.B. 4, 2016) says fatuously that “for the avoidance of doubt” the Electoral Court is a specialised division of the High Court, but the Electoral Act – which states the contrary – must be amended to make this a reality. • Electoral disputes: Rules must be prepared for hearing election petitions, applications and other disputes. 24. Emergency Powers Act [Chapter 11:04]* This Act gives the President powers to make regulations when a state of public emergency is in force in terms of section 113 of the Constitution. Regulations can limit the fundamental human rights in Chapter 4 of the Constitution, but only to the extent specified in section 87 and the Second Schedule to the Constitution. Under section 3(3)(b) of the Act, the President’s regulations can authorise other authorities and persons to make orders. In so far as these orders are legislative they must be published in the Gazette (section 87(2) of the Constitution). The Act should be amended to make this clear. 25. Exchange Control Act [Chapter 22:05]* This Act gives the President power to make “such regulations … as he deems fit” relating to gold, currency, securities, exchange transactions, and the control of imports and exports, the transfer or settlement of property, payments and transactions in relation to debts. As with the Control of Goods Act, the President could control the entire economy through regulations made under this Act. Section 134(a) of the Constitution prohibits the delegation of Parliament’s primary law-making power, which means that regulations should not go further than filling in details. Regulations under this Act go infinitely further, and because the Act allows such regulations to be made it is unconstitutional. 9