BSR: ZEC has broad powers to ensure a free, fair, and credible election

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2422

There is a video clip in which the Chairperson of the Zimbabwe Electoral Commission, Justice Priscilla Chigumba claims that she and her organization have no power to perform functions that the public demands in the running and supervision of elections. She argues that stakeholders must approach parliament so that she and ZEC can be given those powers. She insists that she is not going to do what the journalist was asking of her because she does not have the power.

But how true is this claim by the Chairperson of the elections management body? Does she and ZEC lack the necessary powers to run free, fair, and credible elections? Does parliament have to confer any more powers to ZEC than are already granted under the existing legal framework? To answer these questions, it is necessary to examine the legal framework which is made up of the Constitution and the Electoral Law.

In my assessment, the Chairperson is being needlessly modest regarding ZEC’s powers and the authority that she wields as head of the elections management body. To be sure, there is always room for improvement, but even under the current legal framework, both the Constitution and the Electoral Law provide a broad range of powers that if used reasonably and competently can assist in delivering free, fair, and credible elections.   

The starting point is that ZEC is one of the 5 independent institutions supporting democracy under Chapter 12 of the Constitution. As a creature of the Constitution, ZEC derives its primary powers from the highest law in the country. Parliament may grant it additional powers but that authority comes from the Constitution. Therefore, the primary reference point for ZEC’s powers is the Constitution. In other words, it is in the terms of the Constitution that we turn to identify ZEC’s powers and thereafter, to the Electoral Law for any additional powers.

Express and Implied Powers

Constitutional organs have two types of powers. Express powers are powers that are expressly written in the Constitution or primary legislation. For example, the ZEC’s express powers are outlined in section 239 of the Constitution. They are stated as functions and under Zimbabwean law, functions are interpreted as powers. The most well-known is the power to prepare for, conduct, and supervise presidential, parliamentary, and local authority elections. The 2013 Constitution also gave ZEC the exclusive power to register voters and to compile voters’ rolls and registers. It also has the mandate to ensure the proper custody and maintenance of those voters’ rolls and registers.

Another important express power is the power to mark electoral boundaries, which is referred to as the delimitation of constituencies, wards, and other electoral boundaries. The Constitution also gives ZEC the express power to design, print, and distribute ballot papers. The form of and procurement of ballot boxes, and the establishment and operation of polling centres are further exclusive powers. The Constitution also ringfences the conduct and supervision of voter education to ZEC as well as the power to accredit election observers. It has the power to instruct state or local authority employees to ensure the efficient, free, fair, proper, and transparent conduct of any election or referendum. Finally, ZEC has the power to establish a complaints mechanism to handle and resolve complaints from members of the public.

These are express powers that are exclusively within the province of ZEC. Section 321(2) of the Constitution allows for legislation that permits a constitutional commission to delegate its powers, except powers to make appointments to any office established by the Constitution. Delegation of powers is a recognition of the operational realities of running an organization. Certain functions may not be within the expertise of the commission which it would be reasonable to delegate to a third party. So far, I have focused on express powers that are stated in the Constitution. However, other important express powers are stated in the Electoral Act.

Section 5 of the Electoral Act makes provision for “additional functions and powers” of ZEC. These include “undertaking and promoting research into electoral matters”, “developing expertise and the use of technology in regard to electoral processes”, ensuring gender mainstreaming into electoral processes, and “making recommendations to Parliament on appropriate ways to provide public financing for political parties” among others.

The most significant express power that ZEC has is provided for in section 192 of the Electoral Act. This section provides for the regulatory powers of ZEC. Section 192(1) provides that “The Commission may by regulation prescribe all matters which by this Act are required or permitted to be prescribed or which, in its opinion, are necessary or convenient to be prescribed for carrying out or giving effect to this Act.” This is a broad power that allows ZEC to issue regulations. Regulations are a form of secondary legislation, just like statutory instruments. Section 192(2) also allows ZEC to issue statutory instruments “as it considers necessary or desirable to ensure that any election is properly and efficiently conducted and to deal with any matter or situation connected with, arising out of or resulting from the election”.

These regulations and statutory instruments must, of course, comply with constitutional safeguards applicable to all secondary legislation. Therefore, neither regulations nor statutory instruments can prescribe anything that is outside the enabling legislation, in this case, the Electoral Act. But what is clear from this examination is that contrary to the ZEC Chairperson’s assertions, ZEC has broad regulatory powers that it can use to perform its mandate and to promote free, fair, and credible elections.

The only point of sympathy and recommendation for improvement is that the Electoral Act qualifies ZEC’s regulatory powers by subjecting them to the approval of the Minister of Justice, Legal and Parliamentary Affairs. Section 192(6) of the Electoral Act states that “Regulations made in terms of subsection (1) and statutory instruments made in terms of subsection (4) shall not have effect until they have been approved by the Minister and published in the Gazette.” This is bad law because it undermines the independence of ZEC. If the Chairperson of ZEC is complaining over this qualification of ZEC’s regulatory powers, then she has a legitimate point.

The moment ZEC’s regulations require approval by a member of the executive branch who is also an interested party in electoral processes, it compromises the elections management body’s independence. The Constitution itself prohibits anything that might compromise the independence of a commission, and section 192(6) falls foul of this prohibition. What we do not know is whether ZEC has made any regulations or statutory instruments that have been denied approval by the Minister, but still that provision is an unnecessary infringement on ZEC’s independence and should be removed. ZEC’s regulatory powers should only be judged against the standards of secondary legislation under the Constitution and challenged in a court of law following the rules of administrative justice instead of being subjected to the approval of any Minister of government.

But ZEC has the mandate to provide advice and recommendations on improving electoral legislation and there is no reason why it has not flagged this up in its reports to parliament. If it feels emasculated by section 192(6) which subordinates it to a Minister of government, it should say so in clear terms, making recommendations for electoral reforms.  

Implied Powers

So far, I have focused on express powers that are provided for in the Constitution and the Electoral Act. Another type of power is called implied powers. These are powers that, although they are not expressly stated, are implied by the status, position, or functions of the person or entity under consideration. For example, a human resources director has the implied power to recruit employees of an organization while a finance director has implied authority to sign an organization’s cheques. The power or authority is implied from the positions that they hold. Likewise, ZEC has powers that are implied by its constitutional and statutory role as the elections management body.  

The concept of implied powers has constitutional authority. Section 342(3) of the Constitution provides that, “Where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well”. This means in addition to express powers that are conferred by the Constitution, ZEC has implied powers that are reasonably necessary or incidental to the exercise of those powers. For example, since ZEC has the express power to register voters and compile a voters’ roll, it also has implied powers to do anything necessary to fulfill those functions. Powers that are “incidental to” the exercise of express functions are powers that are associated with those functions.

With respect, the ZEC Chairperson is wrong to limit the powers of ZEC when the Constitution makes provisions for implied powers. Those powers may not be expressly written in the provisions, but if they are reasonably necessary or incidental to the exercise of those functions, ZEC is entitled to claim and exercise them. If there was any doubt concerning the scope of ZEC’s powers, section 192(2) of the Constitution expressly states that “All institutions established by this Constitution have all powers necessary for them to fulfill their objectives and exercise their functions.” Applying this to ZEC, its objectives and functions are set out in the Constitution and this provision underscores the fact that it has all the powers that are necessary to fulfill them.

In short, what section 192 provisions demonstrate is that there is no need for the ZEC Chairperson to plead limitation of powers when the supreme law confers this full range of powers, including implied powers, that ZEC can make use of to promote free, fair and credible elections. If ZEC is wrong in the exercise of such powers, it is up to the courts of law to correct it. The courts would not interfere where the use of those powers is reasonable. ZEC should not be pleading limitation of powers when the supreme law of the country gives it such a broad range of powers. It may be that ZEC is misreading the Constitution leading to self-limitation. Or ZEC is simply being timid in the face of a powerful government. But this does not mean that it is lacking powers.

The ZEC leadership simply needs to be more courageous and forthright in the use of its constitutionally given powers. When ZEC limits itself, it only adds to the collective sense of doubt that the public has about it. ZEC and its Chairperson must be confident in asserting their powers as granted by the Constitution and the Electoral Law. Granted, it is important to remove provisions that require ministerial approval of regulations or presentation of reports to parliament, but these limitations do not stop ZEC from asserting itself in electoral matters.

Timing of Elections

I have always said when you are dealing with ZANU PF, you must always plan with the worst-case scenario in mind. Therefore, think of the worst thing they can do in any given circumstances and it will likely do that. It is on this basis that the CCC, as the main challenger, must plan for elections in 2023. There is going to be a lot of gamesmanship and this may centre on the timing of elections.

A strategy of surprise, catching the opponent unawares and unprepared is one of ZANU PF’s favourites. In 2013, when the MDC parties were in a coalition arrangement with ZANU PF, they were caught unawares when ZANU PF pushed for an election just a few months after the adoption of the new constitution. The CCC should prepare for the next elections with some anticipation that ZANU PF might go for an early election. How might this happen?

The timing of elections is regulated by the Constitution. Section 158(1) provides that a general election must be held within thirty days before the expiry of the five-year term of parliament. The five-year term runs from the day that the President is sworn into office. As President Mnangagwa was sworn in on 26 August 2018, this means the next election should ordinarily be held within 30 days before the expiry of the five-year term in August 2023. Under this timetable, the election will be around the same time that elections have been held since 2013 – the end of July.

However, it would be a mistake to work with this timetable as ZANU PF might spring a surprise early election. The first scenario works in the normal course, where the term of parliament is allowed to run its full course. To understand where the surprise might arise from, it is important to examine other circumstances in which an early election might be called. A general election is called when parliament has been dissolved. It is important to identify the circumstances in which parliament may be dissolved.

First, according to section 143(2), parliament is dissolved when the National Assembly and the Senate vote by a two-thirds majority vote for the dissolution. Second, parliament is dissolved where it has passed a vote of no confidence in the government. Third, the President may dissolve parliament where it has unreasonably refused to pass the Appropriation Bill (budget). The latter two circumstances are unlikely to happen, but the first is not too remote. If ZANU PF wants an early election, it might use its two-thirds majority to dissolve parliament.

If this happens and there is an early dissolution of parliament before the expiry of its normal term, section 158(1)(b) of the Constitution provides that a general election must be held within 90 days of the dissolution. The one thing that must be done before the next election is the delimitation of constituencies. This involves the marking of constituency and ward boundaries which will be used for the next elections. This exercise is due to be done sometime this year after the publication of the population census results. ZEC will use the census results and the voter registration data to map out and mark electoral boundaries.

But once this exercise is done, it’s open season for elections. ZANU PF strategists will be closely watching CCC’s election preparedness. ZANU enjoys the advantage of incumbency and therefore has vast access to resources which enables it to quickly mobilize resources for elections. The CCC should not bank on the next elections being held following the normal schedules of the past two general elections. Since Zanu PF controls two-thirds majority in both House of Parliament (or it can bank on the cooperation of the MDC-T), it has the power to dissolve parliament and trigger an early election. For that reason, the CCC and other opposition parties must plan well ahead with an open mind so that they are not caught unawares.

WaMagaisa