Largely because of the failure by ZEC and the Registrar General of Votes to timeously avail
the voters’ roll to interested parties during an election period. It is quite clear from the
wording of the Constitution that its framers sought to eliminate the confusion surrounding
the voters’ roll by exclusively vesting all processes related to the voters’ roll with ZEC and
removing any reference to the RGV. Despite the clarity of provisions in the Constitution, the
Electoral Act, in its present form fails to reflect the letter and spirit of the Constitution.
Whilst recent amendments to Sections 18 and 19 of the principal Act purported to capture
the essence of the Constitution, a closer scrutiny of the finer print betrays the shortcomings
that still exist in the subsidiary law. Primarily, the retention of the role of the Registrar
General (RG), though somewhat in a qualified role, is problematic, given the past challenges
associated with that office and its management of the voters’ roll. The Electoral Act must
specifically bestow ZEC with the sole mandate of electoral management, in line with the
Constitution.
Several provisionsv of the current electoral law purport to give the Commission leeway to
delegate a number of its functions to other offices in a way clearly not contemplated by the
Constitution. As matters stand the Act through the last amendmentsvinot only fails to align
the principal Act with the Constitution but seems to introduce provisions that further
undermine the intention of the Constitution. The Electoral Act seems to still retain a role for
the abolished office of the registrar general, which is referred to as the former Registrar
General of Voters. Its retention even in a qualified role is troubling; given the troubled
history of the RGV’s office and the role it has played in overseeing disputed elections in the
past decade. The amendment restores the very mischief the Constitution sought to address.
It is quite clear that the Constitution sees no role for the office of the RGV in election
management bodies. The retention of the role of the RGV in the Electoral Act is, with
respect, unconstitutional and the relevant provisions should be repealed.
The point has been made above, that the integrity of the electoral process depends on the
reality and perception of an independent and impartial election management body. Any
involvement of other state actors that also become political contestants in an electoral
process inevitably casts a shadow of doubt on the credibility of the whole process. It is for
this reason that certain provisions in the Electoral Act that purport to give some roles to the
Minister should be revisited. Section 18(5) of the Electoral Act gives the Minister power to
make regulations, after consultation with the Commission and the former Registrar-General
of Voters, These regulations may provide for a wide array of issues that include providing for
a mandatory automatic and electronic voter registration.vii This provision is problematic.
Firstly, the powers given to the minister are not supported by any constitutional provision.
Secondly, from the reading of the provision the minister is given a free reign to come up
with the regulations without taking into consideration of the views of the Commission, as
confirmed by the use of the words, “after consultation.” This is strange considering that the
regulations may affect the operations of ZEC, which is supposed to be an independent,
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Policy Brief: A Call For Alignment Of Laws With The Constitution ©ZESN 2017