NB: The handout has typographical errors

UNIVERSITY OF ZIMBABWE

FACULTY OF LAW

ELECTORAL LAW LECTURE NOTES – 2013

BY PROF L. MADHUKU

ELECTORAL SYSTEMS

Reading:

Dieter Nohlen, Elections and Electoral Systems (2nd edition, Macmillan India Limited,
1996).

Jacques de Ville and Nico Steytler (eds), Voting in 1999: Choosing an Electoral System
(Butterworths, 1996).

Bertus de Villiers, “An electoral system for the new South Africa” in Alexander
Jonhston, Sipho Shezi and Gavin Bradshaw (eds) Constitution –
Making in the New South Africa.

What is an election?

An election is a procedure whereby the people choose public office, holders such as
representatives in parliament and heads of government. It is now universally acknowledged
that without elections, there is no democracy. Other methods of designating leaders include
succession and appointment. Elections confer legitimacy on the government and are a
fundamental form of political participation by the people.

The election process is determined by the electoral system.

What is an electoral system?

An electoral system has been defined as follows: “Electoral system determine the rules
according to which the voters may express their political preferences and according to which
it is possible to convert votes into parliamentary seats (in the case of legislative elections) or
into government posts (in the case of elections for the president, governors, mayors etc)”1.
1
Nohlen, p.20-21
Types of Electoral Systems
A wide variety of electoral systems exist but these may be placed into two main types:
Majority system and Proportional representation system. As Nohlen has aptly expressed this
point as follows:

“Our world abounds in electoral systems – and more and more electoral systems are
emerging since the creative opportunities are virtually unlimited. Yet all electoral
systems can be traced back to two basic types which should rather be thought of as
fundamental electoral principles: the principle of (relative or absolute) majority
representation (which is put into practice by majority/plurality electoral systems) and
the principle of proportional representation (put into practice by a wide range of
proportional systems)”.2

Majority electoral system

The essence of the majority electoral systems is that the majority of the votes cast decides
who wins the election. Its major political aim is to produce a political party or coalition of
political parties with a parliamentary majority required to form a stable government. Its
perceived advantages include:

 it promotes stable governments by bringing about single-party parliamentary

majorities.
 it enables voters to decide directly which political party should form the
government
 It favours larger parties, thus encouraging parties to develop national policies
 It reduces the influence of small parties, thus preventing party fragmentation and
discouraging the formation of political parties based on racial and ethnic
cleavages
 It increases the possibility of producing a clear winner
 It is easy to understand
 It ensures a close relationship between the voter and representative
 It promotes alternation in government in that a small swing in votes may lead to
substantial changes in the number of seats held by the major parties

Its main disadvantage include:

 It leads to “wasted votes” in that votes cast for the loser are completely lost
 It does not accurately reflect the wishes of the voters – there is, almost invariably,
a discrepancy between votes cast and seats received
 It “manufactures majorities” – a party with less than 50% of the votes may get
seats in excess of 50%.
 It benefits parties with a geographical concentration and prejudices those with
scattered support.
2
Nohlen p.28
 It discourages coalition governments due to its promotion of majority rule .

Majority electoral systems may be divided into two main groups: plurality systems and
absolute majority systems

Plurality system
The plurality system is characterized by the ‘winner – take – all’ feature and is generally
known as the “first – past – the – post” system. Under the system, the country is divided into
single – member constituencies and the candidate with the most votes is regarded as the
winner even though he/she does not have an absolute majority and even though more people
have voted against him/her than for him/her.

This is the system used in the, UK, Canada, the USA, New Zealand, India, Botswana,
Malawi, Zambia etc.

Absolute majority system

This system requires that an absolute majority be obtained for an election on the first ballot.
If an absolute majority is not obtained, a special process is devised to attain it. Two methods
have emerged to deal with this. This first is the holding of a second ballot which is restricted
to fewer candidates. For instance, under the French two-ballot system, the second round is
open to candidates who have at least 12,5% of the registered votes, while in Mali, it is
restricted to the two leading candidates from the first round. 3 The second is the alternative
vote system used in Australia. Voters are required to indicate an order of preference among
the candidates. If no candidate receives an absolute majority of first preferences, the weakest
candidate is eliminated and his or her ballots are redistributed among the remaining
candidates on the basis of the ballots’ second preferences. This is continued until a candidate
obtains an absolute majority.4

Proportional Representation
The essence of proportional representation is that the result of the election is determined by
the proportion of votes cast that is obtained by each candidate or party. Its objective is to
ensure that the share of votes and of seats should correspond as nearly as possible so as to
reflect as accurately as possible the existing social and political forces in the country.

The advantages of proportional representation include:

 Provides maximal representation of all opinions and interests. No votes are “lost”
and this leads to a equality in the value of votes.
 It prevents “manufactured majorities” and thus expresses all of a country’s
diversity.
3
(Michael Krennerich, “ Electoral Systems: A Global Overview” in Jacques de Ville and Nico Steytler (eds)
Voting in 1999: Choosing an Electoral System p. 9).
4
(Krennerich, p. 9).
 It moves away from the “winner takes all” approach and thus encourages
coalitions, negotiations and compromises. The latter aspects are preferable to a
winner-loser situation.
 It stimulates multi-partysm, given the reflection of almost all political forces in
the result.
 Prevents the emergence of dominant political parties where the “dominance”
arises from the electoral system and not from electoral support
 It is a useful technique for protecting minorities as both the majority and minority
are represented
 It encourages users to participate in the elections in the sure knowledge that each
vote has an equal value

Some of the disadvantages of the PR system are:

 It is prone to create an unstable/weak government by making it difficult to achieve an

absolute majority and requiring coalitions
 It encourages the proliferation of political parties
 It reduces the relationship between the voter and the representative and
overemphasises the role of the political party
 It may lead to frequent elections and rapid changes of government due to the collapse
of coalitions
 Some PRs are too complicated for votes to understand.


There are a wide variety of PR systems. However, two main types have been
identified:Single transferable vote (STV) and List systems.

Single transferable vote

Its main objective is to improve the relationship between the voter and the representative by
reducing the role of the political party. It is a non-list form of proportional representation
used in multi-member constituencies. The ballot paper lists all candidates in alphabetical
order. The voter is required to indicate his/her preferences on the ballot by writing 1,2,3,4,
etc next to the names of the candidates. To win a seat, a candidate must obtain votes
equivalent to, or exceeding, a specific quota. This quota is called the “Droop quota” ( usually
calculated as fellows total number of valid votes cast divided by the number of seats plus 1
and adding 1 to the result). If a candidate obtains the quota in the series of first preferences,
he/she is elected. The surplus votes, if any, are passed on to the second preferences and if a
candidate reaches the quota, he/she is elected. Where no candidate reaches the quota or
where there is no surplus, the lowest polling candidate is eliminated and all his/her votes
transferred to other candidates on the basis of the second preferences. This is continued until
all seats are filled.
The system is used in Ireland, upper house in Australia and in Malta. It Malta produced some
strange results in 1981 and 1987 where the party with a higher percentage of first preferences
ended up with less seats5.

List Systems
List systems have a variety of models, but the most common are:

Pure proportional system:- This system aspires to achieve exact proportionality. It uses a list
at the national level and seats are allocated proportionately. Thus, a party which receives
30% of the votes, roughly gets the same percentage of seats. The list presented by the
political parties are usually closed so that voters only vote for the national list as a whole.
Few continues use this system. Examples are Israel, South Africa and the Netherlands
(except that are the list is not closed as voters can either choose the list as it is or show
preference for a candidate).

Proportional representation in multi-member constituencies

This has been called impure proportional representation in that it results in a lesser degree of
proportionality than allocation at the national level. Under this system, the country is divided
into multi-member constituencies and seats are distributed to party lists at the constituency
level. This system has various groups e.g closed party lists and open lists allowing voters to
give preference to particular candidates. The methods of calculating proportionality also
vary. Two methods are common: the highest average formula method and the quota method.

The best known of the highest average formula is the d’Hondt formula. 6 The votes gained
by the political parties are divided by series of divisors, in this formula the divisors are
1.2.3.4.5 etc. The highest numbers are those taken into account for the allocation of seats.
The d’Hondt method has the advantage that it was a specific series of divisors and is simple
to apply. The other method is the Lague which uses the series 1,4,3,5,7,9 etc.

Example
Suppose there are 10 members of parliament in a given multi-member constituency. Of 10
000 votes polled, party A: 4 160, B 3 380, C:2 460. Using the d’Hondt formula and dividing
the voters by 1,2,3,4, the following emerges:

A B C
1. 4 160(1) 3 380(2) 2 460 (3)

2. 2 080(4) 1 690(5) 1 230 (7)

5
(1981 – Labour Party 49,1% (34), Nationalist Party 50,9% (31); 1987 Labour Party
48,9% (34); Nationalist Party 50,9% (31).

6
Belgian mathematician
3. 1 386(6) 1 126(8) 820

4. 1 040(9) 845(10) 615

5. 832 676 492

Party A gets 4 seats: 1,4,6 and 9

Party B gets 4 seats: 2,5,8 and 10

Party C gets 2 seats: 3 and 7

The d’Hondt formula is used in Finland, Italy, Portugal, Spain and Venezuela while the
Lague is used in Denmark, Norway and Sweden. In Germany the Hare/Niemeyer method is
used where the valid votes cast for each party are multiplied by the total number of seats and
the result is divided by the total number of votes cast.

The parties get as many seats as there are whole numbers and the remaining seats are
distributed according to value of decimal number. It favours smaller parties.

The quota method requires the creation of a quota and the parties will be allocated as many
seats as the times the quota occurs in their number of votes i.e divide the number of votes
gained by the party by the quota. The quota itself comes out of a division and may be a
simple quota where the valid votes cast are divided by the number of seats or the Hagenbach
Bischoff7 quota where the valid votes cast are divided by the number of seats plus 1 or
modified quota formula where the valid votes cast are divided but the number of seats plus 2.

The quota formula may not lead to the allocation of all seats. The remaining seats may be
distributed through various methods, such as the largest remainder formula or smallest
remainder formula or highest average formula8 or d’Hondt formula – remaining votes divided
by the number of seats already gained by 1.

Example
1 000 votes cast and there are 5 seats. Five political parties have participated: A – 350, B –
90, C – 180, D – 220 and E – 160.

QUOTA A B C D E REMAINING SEATS

350 90 180 220 160

7
Swiss mathematician
8
Remaining votes divided by the number of seats already gained by 1
1000 = 200 1 3
5 1

1000 = 166 2 1 1
5+1 1

1000 = 142 0
5+2 2 1
1 1

Using various methods of allocating remaining seats (using simple quota)

A B C D E

Largest remainder 150 90 180 20 160

1 1 1

Smallest remainder 1 1 1

d’Hondt 150 90 180 20 160

75(1) 45 90(1) 10 80(1)
50 30 45 62/3 53½

Highest average formula 150=75 90=90 180=180 20=10 160=160

1+1 0+1 0+1 1+1 0+1
(1) (1) (1)

Mixed – member proportional system

This system combines single – member constituencies with the system of proportional
representation. The German system is the classical example and has been described as
personalised proportional representation. Each voter has two votes: the first vote is personal
vote given to a candidate in one of the single-member constituencies (which constitute half
the total number of seats). The second vote is given to a national list.

The plurality system is used in the single – member constituencies while the Hare/Neimeyer
formula allocates seats at federal level. However, only parties obtaining at least 5% of the
votes at the national level or with at least 3 seats in single – member constituencies
participate in the allocation of seats.

In Italy, there is a combination of single-member constituencies with a compensatory

allocation of proportional lists votes. The voter has two votes: one for the single-member
constituencies and the other for the proportional list seats.

Which Electoral System?

The appropriateness of electoral system depends on a variety of factors. The most important
of which are the social and political environment, political history of the country and the
interests of political parties who shape the political system. However, debate on electoral
systems should focus on the functional demands of electoral systems and the following five
have been identified:
a) Representation – fair representation should be achieved, including representation
of minorities, women and other special interest groups.
b) Concentration – should enable the formation of an effective Parliament based on a
reduced number of parties. It should allow the formation of a stable and effective
government.
c) Participation – should encourage voter participation i.e whether voter can choose
only between political parties or also other candidates
d) Simplicity – should be simple for both voters and election administrators
e) Legitimacy – members of the community should accept the system and the results
as legitimate.

6.1 ELECTORAL SYSTEM IN ZIMBABWE

Between the two major systems of majority system and proportional representation,
Zimbabwe opted for the former. Within the majority system, Zimbabwe’s system is the
plurality or first-past-the-post system for parliamentary elections. The choice of the electoral
system is made in two stages. First, the constitution rejects proportional representation by
providing for single member constituencies but without prescribing for first-past-the-post.9

Secondly, the choice of “first-past-the-post” is left to the Electoral Law with the full blessing
of the constitution, which in section 38(2) decrees:“The procedure for the nomination of
candidates for election under subsection (1), the election of members of parliament and the
filling of vacancies among elected Members of Parliament shall be as prescribed in the
Electoral law.”

9
see section 38(1)a which says of the 150 Members of Parliament “one hundred and twenty shall be elected by
votes registered on the common roll for one hundred twenty common will constituencies”. see also section
60(2) which says: “Zimbabwe shall be divided into one hundred and twenty common roll constituencies”.
The Electoral Act (chap. 2:01) is the Electoral Law referred to in the constitution. In section
74(1) it provides:“Subject to subsection (2), after the country is completed the constituency
registrar shall forthwith declare the candidate who has received –

a) where there are two candidates, the greater number of votes

b) where there are more than two candidates, the greatest number of votes: to be duly
elected as a member of Parliament with effect from the day of such election”.

Regarding a presidential election, Zimbabwe’s electoral law enshrines an absolute majority

system. This is not provided for in the Constitution, but in the Electoral Act, which provides
as follows in Section 101(3):
“Where two or more candidates for President are nominated, and after a poll
taken in terms of subsection (2), no candidate receives a majority of the total
number of valid votes cast, a second election shall be held within twenty-one
days after the previous election in accordance with this Act.”
The second election is conducted between the two candidates who received the
highest and next highest numbers of valid votes cast10 and should there be an
equality of votes at the second election, Parliament shall elect one of them as
President.11
6.3 RIGHT TO VOTE
The right to vote lies at the heart of any democratic electoral system. Unlike in most other
countries, Zimbabwe’s Bill of Rights does not specifically enshrine a “right to vote”. The
“right to vote” is provided for outside the Bill of Rights and in a circuitous manner. As
regards the President, section 28(2) provides:

“The President shall be elected by voters registered on the common roll”

With respect to Parliament, section 38(1)(a) provides that “one hundred and twenty (members
of Parliament) shall be elected by voters registered on the common roll for one hundred and
twenty common roll-constituencies.”

These two provisions indicate that to be able to vote, one must belong to that group of “voters
registered on the common roll”. The next question is: How does one qualify to be registered
as a voter on the common roll? This is answered by Section 58 (3) which provides as
follows:

“The qualifications and disqualifications for registration as a voter and for voting
at elections shall be as prescribed in Schedule 3 and, subject thereto, by the
Electoral Law.”

10
See Section 101 (4)
11
Section 101 (5)
It is therefore necessary to examine the provisions of Schedule 3 of the Zimbabwean
Constitution and any additional requirements set out by the Electoral Law.12

Schedule 3 grants the entitlement to be registered as a voter to two groups of persons,

namely (i) a citizen of Zimbabwe who is 18 years or above and (ii) a person who, since 31
December 1985, has been regarded as a permanent resident and is 18 years or above. This
entitlement is, however, made subject to “such residence qualifications as may be prescribed
in the Electoral Law for inclusion on the electoral roll of a particular constituency.” 13

The Electoral Act has prescribed the residence qualifications contemplated by Schedule 3 and
these are provided for in Section 20 of the Act. There is in essence, one qualification, namely
that a person “must be resident in that constituency” at the time he/she proposes to be
registered. A person who is resident in one constituency may be registered in another
constituency “for reasons related to his place of origin or political affiliation”. 14 This latter
position is not an exception to the residence rule, because the person who, for reasons related
to place of origin or political affiliation is proposing to be registered in a constituency he/she
is not resident, must first show residence in another constituency.15

The Act regards the residence qualifications as critical in that a person who has ceased to be
resident in a constituency for a continuous period of twelve months must be removed from
the voters roll, thereby losing the entitlement to vote.16

The conclusion therefore is that the right to vote in Zimbabwe is available to two groups of
adults, namely (i) a citizen who is resident in a given constituency and is not disqualified and
(ii) a person who, since 31 December 1985, has been regarded as a permanent resident, is
resident in a given constituency and is not disqualified. A citizen of Zimbabwe who is either
resident outside Zimbabwe (other than on “temporary absence”) or is unable to prove
residence in a given constituency has no right to vote.

The concept of “residence” is problematic in that it may be difficult to tell whether or not a
person may be said to be resident in a given constituency. The Act provides that absence
from a constituency for a “temporary purpose” does not take away a person’s residence
status.17 “Temporary purpose” is not defined but it is submitted that attendance at a
university or other educational institution outside Zimbabwe for a limited period or being
outside Zimbabwe on account of ill-health are “temporary purposes”.18

12
“Electoral Law” is defined in Section 113 of the Constitution as “The Act of Parliament having effect for
the purposes of Section 58 (4) which is for the time being in force”. The Act in force is the Electoral Act
(Chap 2:01)
13
See Section 3(1) of Schedule 3 to the Zimbabwean Constitution
14
See proviso to Section 20 (1) of the Electoral Act.
15
This arises from the fact that the expression “in a constituency in which he is not resident”, used in the
proviso, implies that the person, must be resident in another constituency.
16
See Section 20(3) of the Electoral Act.
17
See Section 20 (2) of the Act.
18
Compare with the instances specified in Sections 32 and 61 of the Act
In principle, residence requires some degree of permanence. For example, students resident
at universities during their studies have been held to be resident where they are studying. 19
The nature of the place of residence is irrelevant as long as some degree of permanence is
established. Thus, a person staying in a tent has been held to satisfy the residence
qualification.20 However, while in principle, a person may be resident at more than one place
thereby being resident in more than one constituency, he/she can only be registered in one
constituency.21 In any event, a voter is entitled to only one vote, even if he/she is registered
in more than one constituency.22 The emphasis put by the constitution on registration of
voters means that a person who turns 18 years after the deadline for registration but before
the voting day is not entitled to vote.

Schedule 3 lists a number of persons who are disqualified from registration as voters, thus not
enjoying the right to vote. These include an insolvent, a mentally disabled person, any person
disqualified by the High Court after a conviction for an offence under the Electoral Law, a
prisoner serving a term of imprisonment of six months or more and any person expelled from
Parliament under Section 43 of the Constitution.23 The disqualification relating to prisoners
only relates to the prisoner for the time he/she is actually in prison. Further, a prisoner
serving a sentence of less than six months is entitled to register and vote while still in prison.
The problem is that the state may not make arrangements for eligible prisoners to register and
vote.

The failure of the Constitution to enshrine the right to vote in the Bill of Rights is a
fundamental defect. Examples of Bills of Rights enshrining a right to vote are many. In
South Africa, section 19 of the Constitution provides as follows:
“(1) Every citizen is free to make political choices, which includes the right –
(a) to form a political party
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause
(2) Every citizen has the right to free, fair and regular elections for any legislative
body established in terms of the Constitution.
(3) Every adult citizen has the right –
(a) to vote in elections for any legislative body established in terms of the
constitution, and to do so in secret, and
(b) to stand for public office and, if elected, to hold office.”

In Malawi, section 40(3) says:

“… every person shall have the right to vote, to do so in secret and to stand for
election for public office”
In Ghana, section 42 of the Constitution provides:
19
See Fox v Stirk (1990) 2 Q.B 463
20
See Hipperson v Electoral Registration Office for Newbury (1985) QB 1060
21
See Section 30
22
See Section 56(1) of the Electoral Act
23
See Section 3 (2) of Schedule 3. Section 43 of the Constitution covers the expulsion of the MP who has been
convicted of a criminal offence and Parliament considers hem/her unfit to continue as a member.
 “Every citizen of Ghana of eighteen years of age or above and of sound mind has
the right to vote and is entitled to be registered as a voter for the purposes of
public elections and referenda.”

The defects that arise from Zimbabwe’s failure to enshrine, in specific terms in the Bill of
Rights, a right to vote become clear when one examines some of the weaknesses which are
apparent from what has already been said. First, the residence qualifications deprive many
citizens of the right to vote, a situation which would not arise were this right entrenched in
the Bill of Rights. Where the right to vote is enshrined as a fundamental right, it is clearly
unreasonable and unjustifiable to deprive citizens of the right to vote merely because they are
away from Zimbabwe or even that they are away for more than twelve months or merely on
account of failure to prove residence in a particular constituency despite being in the country.

Secondly, the insistence on registration as a prerequisite for exercising the right to vote would
be subject to a number of safeguards if the right to vote were a fundamental right. The state
would be required to take reasonable steps to ensure that every citizen who qualifies to vote is
registered. In August v Electoral Commission24, the South African Constitutional Court held
that the right to vote, by its very nature, imposed a positive duty upon the legislature and the
executive to take reasonable steps to ensure that eligible voters are registered. In that case,
the Electoral Commission was ordered, because of the nature of the right to vote, to make all
reasonable arrangements to ensure that eligible prisoners could register and vote.

Thirdly, some of the disqualifications under current law would be inconsistent with a
fundamental right to vote. For instance, why should a person expelled from Parliament be
disqualified from voting for a period of five years? While it may be reasonable to disqualify
such a person from standing for elections as an MP for a given period, there is no reasonable
justification for taking away such person’s right to vote.

6.4 INSTITUTIONS INVOLVED IN THE ELECTORAL PROCESS

(a) Delimination Commission
An election based on constituencies requires the establishment of a body that demarcates
constituency boundaries. In Zimbabwe, the constitution creates a Delimitation Commission 25
for the purpose of determining “the limits of the constituencies into which Zimbabwe is to be
divided”26. The Commission consists of four members, all of whom are appointed by the
President.27 The chairman shall either be the chief justice or some other judge appointed
after consultation with the chief Justice. The other three members are also appointed after

24
1999 (3) SA 1 (CC)
25
Section 59
26
Section 60 (1)
27
Section 59(1)
consultation with the Chief Justice 28. The only persons excluded from appointment are
members of Parliament.29

It is a requirement of the constitution that a Delimitation Commission be convened every five

years30, effectively meaning that under normal circumstances, every general election shall be
preceded by a fresh delimitation of constituencies. The general principle compelled by the
constitution for the delimitation process is that the number of registered voters in each
constituency be “as nearly as possible” equal to the number of registered voters in the other
constituencies31. However up to 20% variation is permitted for purposes of giving due
consideration to the following factors:32

 Physical features of constituencies

 Means of communication within the area
 Geographical distribution of voters registered on the common roll
 Any community of interest as between voters
 Existing electoral boundaries

No one factor is more significant than the others and there is also no indication as to how
these factors should be taken into account. The Commission reports to the President 33 who is
empowered to “ refer back to the Delimitation Commission for its further consideration and
final decision any matter arising out of its report” 34. However, the President cannot change
the boundaries of constituencies as he is only entitled, by proclamation to “declare the names
and boundaries of the constituencies as finally settled by the Commission”.35

Section 60(8) says that the constituencies declared by the President pursuant to the report of
the Demilitation Commission “shall have effect for the purposes of the next and any
subsequent general election”. Does this mean that notwithstanding the five yearly intervals
decreed by section 59(4) a subsequent general election held after the normal five year life of
Parliament may still use the same boundaries of constituencies without a fresh delimitation?
In other words, is it mandatory that every general election held five years after the last one be
preceded by a Delimitations Commission?

The answer to the last question is yes Section 59(4) makes it clear that a Delimitation
Commission should be convened every five years and this can only be for purposes of having
a fresh delimitation before every normal general election. It is submitted that the “subsequent
general election” in section 60(8) refers to a general election other than the normal one, such
as where the President has dissolved Parliament before the expiry of its five year period.
28
Section 59(1)
29
Section 59(1)(b)
30
Section 59(4)
31
Section 60(3)
32
Section 60(4)
33
Section 60(5)
34
Section 60(5)
35
Section 60(8)
A number of comments may be made on the Delimitation Commission as set up by the
Constitution of Zimbabwe. First, its independence and impartiality are not adequately
provided for. The President is only required to “consult” the Chief Justice in making
appointments to the Commission. It is not a sufficient safeguard that the chairperson be a
judge of the High Court or Supreme Court because no qualification is laid out for the other
three members who can all be purely political appointees. Under section 59(3), the
Commission operates on the basis their the views of the majority shall prevail so that the
chairperson can always be overriden by his colleagues. Secondly, section 60(6) is difficult to
support. It gives the President the power to refer back to the Commission for its “further
consideration and final decision any matter arising out of its report.” The power is so wide as
to enable the President to interfere with the work of the Commission via this avenue of
referring matters for further consideration. This makes the President a player in the
delimitation of constituencies, a factor which compromises the impartiality of the process. A
truly independent process demands that the decision made by the Commission should be
final. Thirdly, while the departure from the principle of equality of votes by allowing a 20%
variation in number of voters in each constituency is understandable, the broad spectrum of
factors accepted to explain the variation opens room for gerry mandering. 36 Only one factor
seems to make political sense, namely the “community of interest as between voters” as this
is relevant to the political, social and economic interests which my warrant the creation of a
particular constituency. The other factors are vague and open to all sorts of interpretations.
For instance, the means of communication in an area can change within the space of five
years and should not be an important factor in the delimitation exercise. Fourthly, it is
important to observe that the system enshrined in the Zimbabwean constitution is not based
on population quotas but an registered voters. The latter is inspired by the principle of
equality of votes: each vote should count equally. However, given that a Member of
Parliament represents both voters and non-voters, a region with unregistered voters but a high
population may get so disproportionate number of seats as to be absurd.

(b) Electoral Supervisory Commission

The Electoral Supervisory Commission is set up in terms of section 61 of the Constitution.

Its functions are set out in section 61(3) as being the supervision of the registration of voters
and the conduct of elections. It is also assigned the function of considering any proposed law
relating to the registration of voters and conduct of elections. It has a membership of five, all
of whom are appointed by the President37. Of the five, three (chairperson and two others) are
appointed after consultations with the Judicial services Commission 38 while the remaining
two are appointed after consulting the Speaker of the Parliament. The Commission is
empowered to appoint monitors to assist it in monitoring polling and the verification of
statements of presiding officers and the counting of votes.39 Monitors have been described as
36
This is the political manipulation of constituency boundaries with certain interests in mind: See Dieter
Nohlen, p, 51).
37
See Section 61(1)
38
Section 61(1)(a)
39
See Section 15B(1) of the Electoral Regulations, 1992, SI 58/92, inserted by the Election (Amendment)
an “extension” of the Commission.40 A number of points are worth making about this
Commission. First unlike counterparts in other countries it does not run elections in the sense
of conducting the process. The actual running of the election process is done by the Registrar
– General and the function of the Commission is merely to “supervise”. The constitution
does not make clear what is to “supervise” and this has made the Commission virtually
useless.

In Raftopolous No v Minister of Justice & Anor 2000 (1) ZLR 702(H), the Commission made
an application to the High Court arguing that its role of “supervising” elections had been
usurped by electoral regulations which vested in the Election Directorate, the power to
appoint foreign observers. The regulations in question were the Election (Amendment)
Regulations 2000 (SI161A of 2000) which were promulgated on the eve of the June 2000
parliamentary elections against the backdrop of government’s distrust of foreign observers
and local monitors. The regulations made a distinction between “monitors” and “foreign
observers”. The former were appointed by the Commission while the latter were accredited
by the Election Directorate to observe the conduct of the polls. The Commission argued that
the accrediting of foreign observers effectively gave the Election Directorate the role of
“supervising” elections contrary to section 61(3) of the constitution. Accordingly, it was
argued, the regulations were ultra vires section 61 of the constitution. This argument was
rejected by Chidyausiku JP (as he then was). He held that an observer merely watched how
elections are being conducted and his functions have no link with the constitution in that what
the observers do is neither supervising nor conducting elections. Accordingly the
regulations, in that respect, are not ultra vires section 61 of the constitution. Even the powers
of the Registrar General to accredit both monitors and observers was held not a usurpation of
the powers of the ESC as this was merely part of the process of conducting the elections by
the Registrar General.

The judge considered that the duty of the ESC to supervise elections entailed the following:
“In my view, the functions of the Election Supervisory Commission consists of
observing what is happening and, where necessary, correcting or issuing
instructions. There is also an element of accountability of those conducting the
election to the applicant who has the constitutional function to supervise them.” 41

Secondly, the independence of the commission is doubtful. All members are appointed by
the President and this severely undermines not only the independence and impartiality of the
Commission but also its legitimacy. The issue of legitimacy cannot be overemphasized: in
the eyes of the public, the Commission is set as the President’s tool to legitimize election
results favouring the president’s political party.

Regulations, 2000 (SI 161A of 2000)

40
See Raftopoulos NO v Minister of Justice 2000 (1) ZLR 702 (H)
41
See page 706B
However, section 61(6) provides for the independence of the Commission by requiring that in
the discharge of its functions, it be not “subject to the direction or control of any person or
authority”. Further, in section 61(9), the salary paid to a member of the Commission shall
not be reduced during his/her tenure of office.

In Zimbabwe Unity Movement v Mudede No & Anor 1989 (3) SLR 62 (HC & SC), the
Supreme Court emphasized that the Commission means the whole Commission and not the
chairman or one or two members. In that case, the President had referred a proposed
statutory instrument to the Commission in terms of Section 61(4) of the Constitution. As the
matter was urgent, the Chairman of the Commission did not refer the matter to other
members but simply advised the President that the Commission had no objections to the
proposed statutory instrument. It was held that this was not in compliance with the
constitution which requires in section 61(8) that the commission be either unanimous or
adopt the views of the majority.

In the same case, the Supreme Court expressed the view, obiter, that although the President is
not bound by the views of the Commission under section 61(4), he/she is obliged to take the
views of the Commission seriously. This approach is, with respect, simplistic, in the light of
Section 31K(2)(b) of the Constitution which makes it clear that no court may question or
inquire into the manner the President has exercised his discretion in such circumstances.

In Raftopolous No v Minister of Justice & Anor 2000(1) ZLR 702 (H), the Commission
challenged section 16(4) of the Electoral Regulations which gives the Registrar General the
power to require a monitor to attend a course on electoral law and procedure. The basis of
the challenge was that since monitors were an extension of the Commission, this power of the
Registrar amounted to giving directions to the Commission contrary to section 61(6) of the
Constitution. Chidyausiku JP rejected this argument holding that section 61(6) of the
Constitution is not absolute and allows the issuing of directions of an administrative nature to
the Commission. It is submitted that this is a wrong reading of the constitution – no
distinction is drawn between ‘administrative’ and other directions and that section of the
Regulations should be regarded as ultra vires Section 61(6) of the constitution.

The trend in other countries is that elections are conducted by an Independent Electoral
Commission which performs all the functions currently undertaken by the Electoral
Supervisory Commission, Delimitation Commission, Registrar-General and Election
Directorate.42

 Election Directorate

42
Examples are: South Africa, see Section 190 of the 1996 Constitution, Malawi, See Section 75 of the 1994
Constitution; Uganda, see Section 60 of the 1995 Constitution.
Section 4 of the Electoral Act creates an Electoral Directorate. It is composed of a
chairperson appointed by the President43, the Registrar-General and not more than ten other
members appointed by the Minister of Justice. Its functions are three fold: (i) co-ordinating
the activities of government departments in regard to the delimitation of constituencies,
registration of voters and conduct of the polls, (ii) giving instructions and making
recommendations to the Registrar General in regard to his function under the Act and (iii)
“generally, ensuring that elections are conducted efficiently, properly, freely and fairly.” 44
These functions raise difficulties. How does the function of ensuring that elections are
conducted “efficiently, properly, freely and fairly” relate to that of the ESC, which is required
to “supervise” elections? On the other hand, the function of co-ordinating government
departments suggests that the Directorate is merely a secretariat for the Delimitation and
Electoral Supervisory Commissions. Yet, the Directorate is also given the powerful position
of “giving instructions” to the Registrar General in the discharge if his functions. All these
show the institution of the Election Directorate has ill-defined responsibilities, a situation
which confuses the process of administering elections in Zimbabwe. In terms of the Electoral
Regulations the Election Directorate is given the responsibility of accrediting foreign
observers on the recommendations of the Ministry of Foreign Affairs.45.

 Registrar General

The Registrar General is the chief election officer who wields enormous powers. The office
of the Registrar General of Elections is created by section 15 of the Electoral Act, which
makes it clear that he/she is a member of the Public Service. He/she is the head of multitude
of other Public Service employees charged with responsibilities under the Act namely
constituency registrars, deputy constituency registrars and assistant constituency registrars. 46.
These in turn supervise other election officers, presiding officers, polling officers and
counting officers.47 The powers and functions of the Registrar-General are extensive. They
include:
 Conducting and supervising registration of voters, including making decisions
to
the residence of voters and directing constituency registrars to register persons
who may not be resident in the given constituencies.48
 Printing and publication of voters rolls49
 Directing constituency registers over a host of matters related to the
identification
of voters.50

43
Section 4(2)(a)
44
Section 4(1)
45
See section 15B(2) of SI 58/92
46
(section 15(3)(a) and section 16
47
Section 52
48
Section 20, 21
49
Section 18
50
Section 56
  Declaration of results51
 Presiding over the entire process of the election of the President, starting with
the
publication of the notice of the election and the receipt of nomination papers (93 –
97).

The main criticism against the office of the Registrar-General is that it is part of the Public
Service and as such not independent. Employees of the state are more amenable to the
illegitimate pressures exerted by ruling politicians than is the case with an Independent
Electoral Commission.

In Sithole & Ors v Minister of Justice & Ors 2000(1) ZLR 246 (H), the applicants sought to
have the incumbent Registrar-General removed as the returning officer of the referendum on
the grounds of bias and partisanship. The application was dismissed by Smith J who held
that the Registrar-General was a creature of statute and the courts cannot deprive him of the
powers conferred by statute. In other words, as long as the incumbent remains as Registrar-
General, he/she is empowered to exercise the functions of that office.

 President
The President has a host of functions in relation to the electoral process which makes him one
of the key institutions involved in elections. Apart from his constitutional responsibilities of
dissolving Parliament in preparation for elections 52 appointing members of the Delimitation
and Electoral Supervisory Commissions and fixing the date for the elections 53 the Electoral
Act thrusts upon the President additional powers and responsibilities. For instance:

 After fixing the date/s of the election in terms of section 58 of the constitution,
section 38(4) of the Electoral Act empowers the President to alter the date/s or
times of nomination of candidates.
 The President fixes the dates of by-elections for MPs54 .
 In terms of section 83, the President may order the abrogation of elections in any
constituency if he has reason to “believe that, by reason of actual or threatened
intimidation or violence or any other cause, it is unlikely that a free and fair
election can be held”. It is the President who decides when an election shall be
held in the particular constituency in which the election has been abrogated.55
 The President has powers to prohibit the use of certain symbols.56

 In section 158, the President is given extensive regulatory powers which include
the power to make statutory instruments which he “considers necessary or

51
Sections 74-76, 101
52
Section 63
53
Section 58
54
Section 39
55
Section 83 (3)(b)
56
Section 117
 desirable to ensure that any election is properly and efficiently conducted” and
such statutory instruments may even provide for “suspending or amending any
provision” of the Electoral Act. These powers are undesirable and evidently
undemocratic as the President may abuse the powers to protect the interests of his
party. The United Parties challenged the constitutionality of this section in United
Parties v Minister of Justice, Legal and Parliamentary Affairs 57 It was argued that
the section 158(2)(c) contravened section 20(1) of the constitution which protects
freedom of expression. Although the Supreme Court accepted that a political
party, and not just a voter, has locus standi to challenge the validity of the section,
the constitution that it offended against section 20(1) of the constitution was
dismissed as untenable. The main basis for this was that the issue had been raised
prematurely because the President had not yet made any regulations under the
section. As Gubbay CJ observed: “There is extant no statutory instrument made
by the President, until such a statutory instrument is made, the issue of
constitutionality does not arise. It is prematurely raised. A law that does not exist
cannot be impugned. The power to make the law must be implemented before it,
or anything done under it, becomes open to challenge”. 58 (at p. 260 F-G).

A constitutional challenge is not the only route open to dealing with an abuse of the powers
of the President under section 158. In PF-ZAPU v Minister of Justice (1) 1985(2) ZR
261(HC), the High Court set aside regulations made under the predecessor to section 158 59 on
the basis of being ultra vires in that they had nothing to do with “ensuring that the elections
are properly and efficiently conducted”. In that case, the President had promulgated
regulations prohibiting the use of certain symbols (in that case, any symbol which
incorporated a badge of the Defence Forces, the ZRP and Prison Service) without any
restriction as to time and this meant that it could cover activities not related to the general
elections.

The application had been brought to court by an opposition party, PF-ZAPU, whose symbol,
a black eagle in flight, had been prohibited by the regulations. The government gave, as its
reason for the promulgation of the regulations, its fear of “widespread violence, contrary to
the spirit of free and fair elections” if symbols of the Defence Force, Police Force or Prison
Service were used by political parties. However, the applicant argued that the relevant
section only permitted regulations to be made for the purpose of ensuring that elections were
properly and efficiently conducted and as such the regulations could only have effect for a
limited period. A blanket prohibition of symbols, it was argued, without any restriction as to
time and beyond the confines of the forthcoming general elections was ultra vires the section.
The court agreed with the applicant’s argument and Smith J endorsed it in the following
words;

“There can be no doubt that the regulating powers conferred upon the President
57
1997 (2) ZLR 254(5)
58
at p.260 F-G
59
Section 165 A of the Electoral Act, 14 of 1979
 by S165A of the Electoral Act, 1979, are extremely wide. He can make
regulations he considers desirable for the proper and efficient conduct of the
forthcoming general elections or to deal with any matter or situation connected
with those elections. Thus, he could make regulations which he considers to be
necessary or desirable in order to prevent violence during the election processes
or ensure free and fair elections. However, his regulatory powers are not
unlimited. He may not make regulations under the said S165A which are not
connected with the forthcoming general elections, or in fact, to any elections at
all.”60

The court also held, obiter, that the regulations were, in any event, void for vagueness as
symbols of the Defence Forces or Police or Prison Service were subject to change and were
not always clear to ordinary people.

A more fundamental point about the powers of the President in electoral matters was made by
the Supreme Court in PF-ZAPU v Minister of Justice 61 In that case, The President exercised
the powers under section 165A (the predecessor to section 158) to do the following: (i) He
enacted the Electoral Act (Modification) Notice, 62 in terms of in which he amended the
Electoral Act and reduced the notice periods for a nomination court and general elections
from between 14 and 21 to between 5 and 21 (for nomination court) and from between 21
and 45 to between 14 and 45 for general elections after nomination court), (ii) he
subsequently issued Proclamations 2 of 1985 (SI 163 of 1985) which proclaimed the general
election and gave a notice period of 7 days for the nomination court and 21 days after
nomination court for general election. The proclamation was issued on the same day that
constituencies were also proclaimed.

PF-ZAPU argued that the date and place set for the nomination court did not allow enough
time for its prospective candidates to comply with the necessary requirements for nomination.
It therefore asked the court to declare the fixing of the nomination day to be ultra vires on the
basis of unreasonableness.

The first argument for the President was that the fixing of the dates for the nomination day
was an “act of state” conferred on the President directly by section 58(1) of the Constitution,
and the courts have no power to question the reasonableness of such an act. This argument
was thrown out. The Supreme Court held that an “act of state” only applied to those acts in
respect of which the court’s jurisdiction is ousted. These are few and included powers such
as the dissolution of Parliament, appointment of ministers and ambassadors, declaration of a
state of emergency and so on. All other acts are subject to judicial review. In particular, the
fixing of a date of an election through a proclamation was subject to judicial review, because
a proclamation remained subordinate legislation, which like any other such legislation, was
subject to the scrutiny of the courts. As Beck JA put it:
60
At p.267B
61
1985 (2) ZLR 305 (Supreme Court)
62
SI 155A of 1985
 “The Proclamation in question has no greater sanctity than any other piece of
delegated legislation which, to be valid, must be made intra vires, the powers
conferred in the enabling legislation, without which powers the delegated
legislation could not have come into being in the first place. And it is well settled
that if the powers conferred in the enabling Act are exercised unreasonably --- that
is a ground for striking down the delegated legislation as ultra vires”63

The second argument for the President was that even if the Proclamation were subject to
judicial review, the fixing of the nomination day was not unreasonable. This argument
succeeded and this is the basis upon which PF-ZAPU lost the case. The Supreme Court put a
very high threshold for unreasonableness. It endorsed “unreasonable” as defined in the
English case of Kruse v Johnston64 where unreasonableness arises where the regulations are
either “partial and unequal in their operations” or are “manifestly unjust” or “disclosed bad
faith” or “involved such oppressive or gratuitous interference with the rights of those subject
to them as could find no justification in the minds of reasonable men”.65

On the basis of this test, the Supreme Court concluded that no unreasonableness was involved
and upheld the seven day notice despite the great inconveniences suffered by the opposition
party. It is submitted that this test for “unreasonableness” is artificial and undermines the
capacity of the courts to set aside the President’s exercise of his powers under electoral laws.

The case of ZUM v Mudede No & Anor 1989 (3) ZLR 62 is another demonstration of how
the President may abuse the powers granted by Section 158. In that case, in terms of section
53 (4) of the Electoral Act No 14 of 1979, which was the governing legislation at the time, a
nomination court could not receive nomination papers after 11:00am. On 29 September
1989, a nomination court for a by-election for the Kariba Constituency closed nominations at
the relevant time before the ZANU(PF) (ruling party) candidate had filed his papers. To
enable the ZANU(PF) candidate to file his papers, the President promulgated a statutory
instrument extending the nomination time to 5:00pm on the same day. However, the
Supreme Court nullified the statutory instrument on the basis that it was ultra vires the then
section 61(4) of the constitution. The then section 61(4) of the Constitution required that
every proposed statutory instrument be referred to the Electoral Supervisory Commission
which was obliged, in turn, to make comments before the statutory instrument was
promulgated. The Chairman of the Commission acted on his own without consulting the
other members and the Supreme Court held that this rendered the statutory instrument a
nullity, thus also nullifying the nomination of the ZANU(PF) candidate. Needless to
mention, it is unlikely that the President would have resorted to section 158 if it had been an
opposition party candidate who had failed to register on time.

63
At p. 332
64
1898 2 QB 91
65
See p.323 of the judgment
A striking abuse of the President’s powers under section 158 was the promulgation of the
Electoral Act (Modification) (No.3) Notice, 2000 (SI 318 of 2000). In terms of that Notice,
the President purported to condone any election irregularities which had occurred in the June
2000 elections and to render valid the election of every member of Parliament regardless of
any contraventions of the Electoral Act which may have occurred. 66 The preamble noted that
a number of candidates who had lost in the general election had instituted civil suits
challenging the election results. The effect of the notice was therefore to stop the electoral
challenges which had been instituted by the opposition MDC in the High Court as the
President had already predetermined the elections as valid. The President justified this
extraordinary resort to section 158 by claiming that the institution of the electoral challenges
in the High Court (i) placed intolerable burden on the elected MPs and compromised their
duties; (ii) overstretched the limited resources of the Registrar General and the judicial
system and (iii) undermined the political stability of, and democratization process, in
Zimbabwe owing to the involvement of “external interests” 67 The MDC challenged the
constitutionality of the Notice in the Supreme Court in MDC and Shephard Mushonga v
Partrick Chinamasa NO and Roberty Gabriel Mugabe No 68 . The applicants argued that the
Notice infringed their right to “protection of the law” contrary to sub sections (1) and (9) of
section 18 of the Constitution. The court chose to base its decision on a consideration of the
infringement of section 18(9) which entitles every person “to be afforded a fair hearing
within a reasonable time by an independent and impartial court or other adjudicating
authority established by law in the determination of the existence or extent of his civil rights
and obligations”.

The court reasoned that applicants had a number pf existing civil rights which included (i) the
right to participate in a free and fair election, which is devoid of corrupt or illegal practices
and (ii) the right to challenge the result of an election which is claimed to have been tainted
by corrupt or illegal practices. The Notice in preventing the applicants from seeking relief
from the High Court, was contrary to section 18(9) of the constitution. The Notice was
therefore declared null and void.

6.6 FUNDING OF POLITICAL PARTIES

Before 1992, there was no provision for public funding of political parties in Zimbabwe. In
1992, Parliament enacted the Political Parties (Finance) Act 69. The Act requires every
political party that wishes to be financed by the state to register as a political party at least
seven days before a general election 70. The registering officer is the Minister of Justice. 71 As
originally enacted, not every registered political party qualified to be financed by the state:
the political party needed to have won at least 15 seats in the parliamentary elections 72. A

66
See section 3(2) of the Notice
67
See the Preamble to the Notice
68
SC7/2001
69
Chapter 2:04 – enacted as Act No. 14 of 1992
70
Section 4 (1)
71
Section 4(1)
72
Section 3(3)
qualifying political party is entitled to an annual payment, determined as a proportion of the
total amount made available for political party funding on the basis the proportion of
“number of elected Members of Parliament who are members of that political party bears to
one hundred and twenty.”73

In United Parties v Minister of Justice the 15 member threshold was challenged as being
unconstitutional on the ground that it infringed the freedom of expression enshrined in
section 20(1) of the constitution. It was argued that the excessively high threshold of 15 seats
hindered the applicant political party in its enjoyment of freedom of expression. The
Supreme Court agreed and Gubbay CJ had this to say:

“I am left in no doubt that the provisions of 3(3) of the Political Parties (Finance)
Act manifestly maintain the status quo. Preferential treatment is accorded to the
political party represented by 15 elected members in the preceding and present
Parliament. No other meaningful campaigning party falling below this very high
threshold is advantaged. Consequently, the regulatory regime favours the
established party without securing any compensatory benefit for others wishing to
participate in the political debate which is such an intergral part of it” 74

Significantly, however, the Supreme Court did not hold public funding of political parties
perse to be unconstitutional. What it held objectionable was an unrealistically high threshold
which favoured the dominant political party and denied the others any chances of public
funding. To conform to the constitution, the Supreme Court suggested a “reasonable
threshold” fixed on the basis of a percentage of the total number of votes cast. 75 The
government quickly accepted this ruling and section 3(3) was amended to provide a threshold
of 5%.76

Section 3 (3) now reads: “For the purpose of subparagraph (b)of subsection 2, each
registered political party whose candidates received at least five percent of the total number
of votes cast in the most recent general election shall be entitled to the same proportion of the
total moneys specified in terms of paragraph (a) of subsection (2) as the number of votes cast
for all its candidates in that election bears to the number of votes cast for all candidates in that
election”.

The adoption of a percentage system as apposed to a specified minimum number of seats in

Parliament, necessitated dealing with the issues of uncontested seats where the only duly
nominated candidate is declared a winner. How many votes is such a candidate deemed to
have obtained for purposes of calculating his or her part’s percentage of the total votes cast?
73
Section 3(3)
74
At p.270E
75
At p 272 F
76
see Political Parties Finance Amendment Act (No. 20 of 1997).
One option would be to deem such a candidate to have obtained votes equivalent to the
number of registered voters in the constituency but this is clearly unreasonable. The Act
provides that in such cases, a candidate “shall be deemed to have received the same
proportion of the votes of registered votes in his constituency as the total number of the votes
cast for all candidates in the election concerned bears to the total number of registered voters
on the constituencies in which these votes were cast”77.

This means that it is the percentage vote turn out which determines the number of votes
allocated to the candidate. Thus, if the percentage turn out is 40%, the candidate is deemed to
have been elected by 40% of the registered voters in the relevant constituency.

After the June 2000 parliamentary elections in which the opposition MDC posed a
formidable challenge to the ruling party, the government was keen to stop foreign funding of
political parties given its belief that the opposition was foreign-funded and serving foreign
interests. The Political Parties (Finance) Act was repealed and replaced by a new Act. The
New act has the following features: (i) it retains the 5% threshold for a political party to
qualify for funding78 (ii) the amount of money payable to a political party shall be that portion
of the total moneys appropriated for the purpose which is determined by the fraction of : the
total number of votes cast for the party’s candidates divided by the total number of votes cast
for all candidates in the election.79 (iii) it simplifies the issue of uncontested seats by deeming
the declared winner to have won the votes of all the voters registered in the constituency
concerned.80 (iv) qualifying political parties are required to apply to the Minister of Justice for
funding before the end of the financial year in which a general election is held. 81 (v) it
prohibits political parties, members of political parties and candidates from accepting any
foreign donation whether directly from the donor or indirectly through a third person 82 and
(vi) it prohibits foreigners, while in Zimbabwe, to solicit donations from the public on behalf
of any political party.83 In the United Kingdom, objections to public funding of political
parties have been based on three main grounds.84

The current scheme of funding for political parties is that only a parliamentary general
election is taken into account. A political party’s showing in a presidential election is
irrelevant.

The issue of funding of political parties raises controversial constitutional points.

First, it is said that public funding breaks the traditional constitutional understanding of
political parties as private organizations and there is no basis why members of the public
77
Section 3(3)
78
Section 3(3)
79
Section 3(3)
80
Section 3(3)
81
See 4(1)
82
Section 6(1)
83
Section 7(1)
84
For a summary of these grounds, see Eric Barendt, An Introduction to Constitutional Law 1998 p.
156-158
should be asked to subsidise their activities, some of whose activities they may not approve.
Secondly, public funding might justify government intervention to impose restrictions on
private funding. Thirdly, political parties would have less incentive to recruit members as a
basis for private funding through membership contribution. Largely due to these objections,
state funding for political parties remain unavailable in the UK.

Be that as it may, public funding of political parties is desirable for the sustenance of
democracy because political parties play a key role in shaping government policies. In the
United States, public funding of political parties has been held to be constitutional and in fact,
the imposition of limits on expenditure by election candidates has been outlawed as an
infringement of freedom of speech.85

Public funding of political parties has also seen upheld in Germany, France, Italy and other
countries.86 Gubbay CJ described public funding of political parties as “a vital element of a
sound democracy both as an egalitarian measure and as a means of curbing the dependency
of political parties upon private interests.” 87 What has proved difficult in all countries
providing funding is determining an appropriate threshold, it being generally accepted that
not every political party deserves funding. In the words of Gubbay CJ.

“The justification for placing a reasonable limitation upon the payment of state funds to
political parties admits of no controversy. Its purpose is understandable. It is to encourage
serious political parties or candidates to contest an election and thereby strive to obtain
representation in Parliament. Yet, on the other hand, it is to discourage inability to attract an
important following … to command a significant proportion of the votes cast. Put
differently, the aim is to inhibit the proliferation of of trifling parties, to prevent them from
participating in the election simply in order to secure public moneys” 88. The US supreme
court subscribes to the same view that minor parties should not be encouraged through public
funding.89

ELECTORAL PROCESS

The electoral process itself has various stages including the registration of voters, publication
of the voters roll, promulgation of election dates, nomination of candidates, the campaign
process and the polling and counting of votes. No purpose can be served by outlining the
detailed rules relating to these aspects. The rules are contained in the Electoral Act and the
Regulations.90 However, some key aspects are worth noting.

Registration of Voters

85
Buckely v Valeo 424 US 1 1976
86
See the survey in United Parties v Minister of Justice at p.262-266
87
see page 267G
88
At p. 266G
89
Buckley v Valeo 424 US 1 1976
90
See the current Electoral Regulations, 1992 (SI 58 of 1992)
In terms of the Electoral Act, registration of voters is a continuous process and is not
dependent on whether or not there is an election in the immediate future. 91 Accordingly, any
person who wishes to be registered as a voter for any constituency may, at any time, apply for
registration by lodging the prescribed claim form with the constituency registrar. 92 Apart
from registration at the instance of a voter, the Act allows the automatic registration, as
voters, at the instance of the Registrar General, of all persons registered in terms of the
National Registration Act93 and who are qualified for registration as voters.94 Persons become
registered in terms of the National Registration Act upon applying for, and being granted, a
national identity document. There are provisions for the removal from the voters roll of
persons who have become disqualified or are dead or absent.95

Although the registration of voters is a continuous process, whenever there is an election the
voters roll shall be closed for purposes of accepting the registration of voters who may vote at
that election.96 The closing date is fixed by the president but it cannot be more than thirty-
one days before the date of the proclamation fixing the closing date. 97 The fact that the
President can close the voters roll in retrospect opens the registration process to political
manipulation and may disenfranchise many potential voters who are not conscientious about
the voting process.

The President may order that there be an entirely new registration of voters and if this
happens, every person (whether on the voters roll or not) would have to seek registration in
order to be a registered voter.98 It is difficult to understand why the President should wield so
much power in relation to the registration process given that the process itself is a laborious
one. In the absence of a presidential proclamation ordering an entirely new registration
process, a voter, once registered, remains on the voters roll for all future elections until
lawfully removed. In other words, a voter need not register before every election.

In Dongo v Mwashita & Others99 , Smith J held, obiter, that he Electoral Act does not require
that the voters roll be printed. He reached this conclusion after considering the following
provisions: (i) that the claim forms for registration may be used to keep the voters roll. 100;
(ii) that the constituency registrar may have the voters roll printed whenever he considers it
necessary101; and (iii) that the Registrar General may publish a declaration that the printed
voters roll shall be used for purposes of identifying voters. 102 It is submitted that this reading
of the Act is wrong as being too literal to be consistent with the broad objectives of the Act.

91
See Section 21 of the Act
92
Ibid
93
Chapter 10:17
94
See Section 21 (6) of the Act
95
See Section 31 and 32
96
See Section 38 (2) (c) of the Act
97
Ibid
98
Section 24 of the Act
99
1995 (2) ZLR 228 (H)
100
See Section 17(3)
101
See Section 18(3)
102
See Section 18(4)
The provisions in question do not necessarily mean that the voters roll need not be printed. It
is difficult to conceive of an unprinted voters roll. The expression “voters roll” is itself
decisive: it connotes a printed roll. It is absurd to suggest that a voters roll, may simply be a
collection of claim forms put together. The provisions relied on by Smith J can easily be
given another sensible meaning. The provision on the use of claim forms for keeping the
voters rolls simply means that these forms are admissible as evidence of a voters roll and not
that they are a substitute for a printed voters roll. Similarly, section 18(4) which provides
that the Registrar General may declare that the printed voters roll shall be used for the
identification of voters roll only means that registration cards may be dispensed with for
identification purposes. Section 21(3) provides that on submission of a claim form and upon
satisfying the constituency registrar of entitlement to be registered, the constituency registrar
shall “enter the claimant’s name and particulars relating to him on that voters roll.” This
clearly means that the “voters roll” is separate from the claim form/s. How then can a voters
roll be a collection of claim forms?

At the moment of voting, a voter is only required to prove the fact of registration on the
constituency voters roll and not residence in the constituency. 103 This means that a voter who
has moved from the constituency in which he/she was registered to another constituency
before the election, is only entitled to vote in the constituency in which he/she was registered
except where he/she has made a claim for transfer of registration in accordance with the
provisions of section 22 of the Act.

Promulgation of the Election Dates

The Constitution sets out the outer framework of when elections must be held and leaves the
exact timing of election dates to the executive. Thus, regarding parliamentary elections,
section 58 of the Constitution requires them to be held within four months of a dissolution of
Parliament.104 With respect to presidential elections, section 28(3) requires an election to the
office of President to take place within ninety days before the term of office of the President
expires or within ninety days after the office becomes vacant by reason of death or
resignation or removal from office.

The exact date within the four month period provided for by the Constitution for the holding
of parliamentary elections is fixed by the President. 105 The President also has the power to fix
the exact dates for the holding of by-elections of chiefs to Parliament. 106 The prerogative of
the President to fix election dates is subject to judicial review 107 and the courts may set aside
an election date which is grossly unreasonable or oppressive to participating political
parties.108

103
See Dongo v Mwashita 1995 (2) ZLR 228 (H)
104
This dissolution may be either in terms of Section 63 (4) (The dissolution after 5 years) or under Section
63(7) (Covers any other dissolution)
105
See Section 38 of the Electoral Act
106
Section 40 of the Electoral Act
107
See PF-ZAPU v Minister of Justice (2) 1985 (2) ZLR 305
108
Ibid
The exact date for the holding of a Presidential election is, in terms of the Electoral Act, left
to the Registrar-General who is required to publish a notice of the date within the first ten
days of the ninety-day period within which the elections must be held. 109 There is little doubt
that in reality, the Registrar-General, being a public servant answerable to the executive arm
the state, merely proclaims a date decided upon by the President and his cabinet.

In view of the outer limits on election dates imposed by the Constitution, the degree of
maneuver available to a government of the day to manipulate the timing of an election is
limited. Unless the President is prepared to dissolve Parliament earlier than the expiry of its
five year term, he/she is not in the same position as the Westminister-type Prime Minister
who has enormous powers regarding the timing of an election. It has been said of the
Westminister-type Prime Minister:
“The opportunity to choose the timing of a general election is an important power
at the disposal of the Prime Minister who may choose a time when there is a
revival in the economy or when the government popularity is rising.”110

Nomination Of Candidates

In general, Zimbabwean law makes it easy for any qualified person to present himself/herself
as a candidate. The Constitution sets out the qualifications for candidates. A presidential
candidate must be a Zimbabwean citizen by birth or descent, must be forty years of age and
be ordinarily resident in Zimbabwe.111 A parliamentary candidate must be a registered voter,
has attained the age of twenty-one years and has been ordinarily resident in Zimbabwe for at
least five years in the twenty years preceding the nomination day. 112 The requirement that a
parliamentary candidate be merely a “registered voter” means that (i) a non-citizen who is a
permanent resident and is a registered voter qualifies to be a Member of Parliament in
Zimbabwe and (ii) the candidate need not be a registered voter for the constituency in which
he/she proposes to stand as a Member of Parliament as long as he/she is a registered voter in
some other constituency.

The age of a candidate is a question of fact and in the event of a dispute, the courts may be
called upon to determine that fact. In Misihairambwi v Minister of Home Affairs and 2
Others113, the appellant wished to contest the Harare municipal elections as an independent
candidate. The governing legislation required her to be at least 30 years of age but, she had
in her possession a birth certificate showing her date of birth to be 31 December 1967. This
made her to be 29 years of age. Claiming her actual date of birth to be 31 December 1966,
and fearing that she would not qualify to stand for elections, she exercised her rights to have
the birth certificate corrected in terms of Section 8(2) of the Births and Deaths Registration

109
See Section 94 of the Electoral Act
110
See A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law (12th edition, 1997, Longman)
p.191
111
See Section 28(1)
112
See Section 1 (3) of Schedule 3
113
S-120-97
Act114. A new birth certificate was issued and she was allowed to stand as a candidate.
However, owing to pressure from the ruling ZANU (PF) party, the Registrar-General
purported to withdraw the amended certificate and the appellant was subsequently
disqualified as a candidate. The Supreme Court set aside this disqualification and
emphasized that the age of the candidate was a matter of fact. It came to the conclusion, on
the facts, that the candidate’s actual date of birth was 31 December 1966.

The Electoral Act requires a candidate’s nomination forms to be signed by a certain number
of registered voters.115 It was held in Chibi v Minister of Internal Affairs 116 that while the
Registrar General or his/her designated officials are entitled to scrutinize the signatures on the
nomination papers and even comparing them with signatures on application forms for
registration as voters, the rejection of a signature can only be treated as provisional otherwise
“it would result in a voter being deprived of his right to nominate a candidate, and of a voter
being deprived of his right to be a candidate.” 117 This sentiment is now firmly entrenched in
the Electoral Act by giving the candidate an immediate right of appeal to a judge of the High
Court in chambers.118

The decision of constituency registrars whether or not to accept nomination papers are
reviewable by the High Court119 In Chitungo v Munyoro120 the constituency registrar
accepted a nomination form on which the sponsors names were not given in full, in that first
names were represented by an initial. The High Court held that full names were required and
the nomination form of the respondent (who had actually been elected at the subsequent
election) should have been rejected and the applicant (who was the only other candidate)
declared elected.

A candidate is also required to pay a deposit of a sum of money the amount of which is
prescribed from time to time121 and this is forfeited if the candidate gets less than one-fifth of
the number of votes of the successful candidate. 122 In countries which enshrine a right to vote
and to hold public office in the Bill of Rights, this requirement of a payment of a deposit may
be regarded as unconstitutional for being a property qualification.123

114
Chapter 5:02
115
See Sections 46 (Parliamentary) and 95 (Presidential)
116
1970 RLR 88
117
At p. 91A
118
See Section 46 (19) of the Electoral Act
119
See Chitungo v Munyoro & Anor 1990 (1) ZLR 52 (HC)
120
Ibid
121
See Sections 47 (Parliamentary) and 96 (Presidential)
122
Ibid
123
See for example, a decision by the Supreme Court of Mauritius in UDM v Governor-General (1991) LRC
(const) 328 . However, in the United States, restrictions requiring nomination by at least five percent of
registered voters have been upheld as part of the state’s interest in promoting a stable political process: see
Jenness v Forston 403 US 431 (1971) and Storer v Brown 415 US 724 (9174)
Political Party Campaigns

Zimbabwe’s electoral law does not have comprehensive provisions regulating the conduct of
election campaigns. There are two main devices utilized by the law to regulate campaigns.
First, it restricts a candidate’s expenses with a view to ensuring that the electoral process is
not corrupted by money. Thus, election expenses of a candidate are only lawful in respect of
a given set of matters such as purchasing voters rolls, public meetings and stationery. 124 For
purposes of monitoring election expenses, the Act requires every candidate to appoint an
election agent125 through whom all payments in respect of expenses are to be made. 126 The
scope of this device is limited in that it only focuses on candidates in their constituency
campaigns and does not cover the national campaign programmes of political parties. 127

The second device is the creation of a bundle of election offences under the description of
“corrupt practices” and “illegal practices”.128 These offences are designed to induce
appropriate methods of election campaigns. Thus, it is an offence of “treating” to provide
any food, drink or entertainment for purposes of inducing any person to vote in a particular
way.129 The offence of “undue influence” is committed by any person who makes use of or
threatens to make use of force to induce another person to vote or refrain from voting. 130
Other offences are bribery131, personation132, illegal transportation of voters133 and
unauthorized election expenses.134
For the candidate or election agent, the consequences of committing any corrupt practice or
illegal practice are severe. In terms of section 124 of the Electoral Act, if upon the trial of an
election petition, it is established that any corrupt practice or illegal practice was committed
“by or with the knowledge and consent or approval of the candidate” who subsequently won
the election or any of his agents, that election shall be void and a fresh election ordered.

The candidate or the election agent may be disqualified, for up to five years, from being
registered as a voter or from filling a public office.135
The law does not provide for a cut-off time for election campaigns so that these can be held
up to, and during, polling. The exception to this is that within one hundred metres of any
polling station on a polling day, certain campaign activities are prohibited such as distributing
leaflets, public singing or dancing and uttering slogans. 136 In Kuvarega v Registrar-General

124
See Section 84 of the Electoral Act
125
See Section 85
126
See Section 88
127
For a discussion of the position in the United Kingdom where a similar device is used see A.W Bradley &
K.D Ewing, Constitutional Act Administrative Law (12th edition, 1997, Longman) p. 176 ff
128
See parts XX and XXI of the Electoral Act
129
Section 104
130
Section 105
131
Section 106
132
Section 107
133
Section 108
134
Section 111
135
See Section 124 (b)
136
See Section 118
& Anor137, the High Court was called upon to determine whether the prohibition of
“utter(ing) slogans” covered the wearing of apparel adorned with campaign slogans, symbols
and pictures of any candidate or political party. The court held that the word “utter”
connoted the making of a sound and did not include a written communication. Accordingly,
it held, that the wearing of campaign apparel within one hundred metres of a polling station is
not prohibited.

However, the main weakness of the system of using the device of merely creating offences in
a bid to regulate election campaigns is that some offences are difficult to prove. This was
evident in the case of ZANU (PF) v UANC & Others. 138 In its election campaigns for the
independence election of 1980, the UANC, headed by Bishop Abel Muzorewa decided to
hold a four-day political rally at which food, drinks and entertainment were to be provided
and at which a raffle draw was to be conducted with six motor-cars as prizes for the six lucky
winners. One of the contesting political parties, ZANU (PF) sought to stop the political rally,
which had already commenced at the time of the court application. The court held that the
provision of food, drinks and entertainment did not, in itself, mean that the offence of
“treating” has been committed. It only becomes an offence if done “for the purpose of
corruptly influencing” a voter, an aspect which the court said could not be established on the
facts, as the food and drink were provided to induce persons to attend the rally. It is
irrelevant that once at the rally, speakers can influence them to vote in a particular way.

A notorious deficiency of Zimbabwe’s electoral law is that it has no provisions for equal
access to the public media by competing political parties. This had led to an uneven
campaign field as the ruling party tends to dominate the public media to the exclusion of
opposition political parties. In other countries, access to the media is a key aspect of electoral
law and is generally regulated to promote fairness among competing political parties. 139

6.7 ELECTION PETITIONS

Electoral law in Zimbabwe permits a limited class of applicants to seek the nullification of an
election result. Regarding a parliamentary election, three groups of persons are allowed,
namely (i) a person claiming to have had a right to be elected at that election, (ii) a candidate
in the election and (iii) any voter in the constituency concerned. 140 For a presidential election,
only two groups are allowed: (i) a person claiming to have had a right to be elected at that
election and (ii) a candidate in the election. 141 The exclusion of an ordinary voter from
entitlement to challenge the results of a presidential election must have been deliberate. It
was to prevent harassment of a new president by the institution of frivolous court applications
by disappointed voters, a consideration which is not as important in relation to a new Member
of Parliament.
137
1998 (1) ZLR 188 (H)
138
1980 ZLR 69
139
For the position in the UK , see Bradley & Ewing, op cit p.178 and for South Africa, see the Independent
Broadcasting Authority Act , 1993 (Act No. 153 of 1993)
140
See Section 132
141
See Section 102
An election petition challenging the election of a Member of Parliament must be presented
within thirty days after the day on which the result of the election has been notified in terms
of the Act.142 The notification referred to is that of publication in the Gazette by the Minister
in terms of Section 77 of names of persons declared duly elected. For a presidential election,
the thirty days within which an election petition must be filed run from the day of the
declaration of the results143. The courts have emphasized that failure to file a petition within
the time prescribed cannot be condoned because the court had no power to do so. 144 Any
purported election petition outside the time-limit is therefore a nullity. 145 Even in situations,
such as in local government elections, where the statute does not specify a time-limit within
which an election application must be made, it has been held that the failure to make the
election petition within a reasonable time renders the petition a nullity. 146 It would appear
that even where an election petition has been filed timeoulsy, the failure to prosecute it
expeditiously, such as by ensuring that answering affidavits, heads of argument and the set
down for hearing are done with urgency, may still lead to the application being dismissed on
grounds of delay.147 Korsh JA has this is to say in Kutama v Kwekwe Town Council148
“Having the results of an election declared void is of such paramount urgency that
delays in mounting applications to set aside such results cannot be brooked. And
any appeal from a decision refusing to order an investigation should be pursued as
a matter of urgency. By this failure to have his appeal set down as an urgent
matter, the appellant has delayed the matter beyond the point where the remedy he
seeks can be justified on any ground.”
The requirement that an election petition be made within thirty days after the results does
not mean that a petitioner must wait for the electoral process to be completed before
approaching the courts. Some remedies may be more appropriate before polling and a
petition brought before or during polling is competent.149

The critical question in election petitions is: in what circumstances may an election result be
set aside? The Electoral Act sets out two bases for the setting aside of an election. The first
basis, which may be called the “corrupt or illegal practices basis” is provided for in Section
124. In terms of this basis, if the court establishes (i) that any corrupt or illegal practice has
been committed and (iii) that it was committed by or with the knowledge and consent or
approval of the winning candidate or any of his agents, the election of the candidate shall be
void and a fresh election ordered. Under this basis, it is irrelevant that the corrupt or illegal
practice did not affect the result of the election. What the Act seeks to achieve under this

142
Section 133 (2)
143
See Section 102
144
See Pio v Smith 1986 (3) Sa 145 (ZH); Chitongo v Munyoro & Anor 1990 (1) ZLR 52 (HC); Nair v Teik
(1967) 2 ALL ER 34 (PC); Saul v Allen 1924 TPD 382; Tighy v Putter 1949 (1) SA 1087 (T)
145
Ibid
146
See a series of cases in Zimbabwe where the applications were dismissed on the ground of delay: Kutama v
Kwekwe Town Council 1993 (2) ZLR 137 (S); Mvundura v Mudehwe & Anor HH-176-96; Makamure v
Mutongwizo & Ors 1998 (2) ZLR 154 (H); Bganya v Chitumba 1998 (2) ZLR 171 (H)
147
ibid
148
supra at p.143 E
149
See Makamure v Mutongwizo at p.169B; Bganya v Chitumba at p176 F-G
basis is that candidates and their agents must be persons of integrity who must only win an
election on the basis of fair play. This is why the High Court is given the further jurisdiction
to disqualify as voters or candidates for up to five years, politicians of a corrupt disposition.150

The second basis, which may be called the “non-compliance basis” is provided for in section
149. This section provides as follows:
“An election shall be set aside by the High Court by reason of any mistake or non-
compliance with the provisions of this Act if, and only if, it appears to the High Court
that –
(a) the election was not conducted in accordance with the principles laid
down in this Act; and
(b) such mistake or non-compliance did affect the result of the election”.

It is significant to note that this provision was reworded in 1990 and departs from the earlier
formulation. The formulation in the 1979 Act read as follows:
“No election shall be set aside by the High Court by reason of any mistake or non-
compliance with the provisions of this Act if it appears to the High Court that the
election was conducted in accordance with the principles laid down in this Act
and that such mistake or non-compliance did not affect the result of the
election.”151

This formulation was changed in 1985 to read as follows:

“An election shall be set aside by the High Court by reason of any mistake or non-
compliance with the provisions of the Act if, and only if, it appears to the High
Court that –
(a) the election was not conducted in accordance with the principles laid down in
this Act, or
(b) such mistake or non-compliance did affect the result of the election.”

The courts had interpreted these old formulations as meaning that there were two separate
aspects for setting aside an election, namely (i) a mistake or non-compliance which was not
in substantial conformity with the principles of the Act, whether or not it affected the results
and (ii) a mistake or non-compliance which affected the results of the election, however
trivial it may have been. Either of them was sufficient in itself to lead to the nullification of
an election.152

The only difference between the 1985 formulation and the current provision is the
substitution of the word “and” in place of “or”. This creates a substantial difference. Two
important conclusions arise form this new provision. First, a mistake or non-compliance
150
See Section 124 (b)
151
See Section 156 of the Electoral Act, 1979
152
See Pio v Smith 1986 (1) ZLR 120 (SC); Chitungo v Munyoro 1990 (1) ZLR 52 (HC); Morgan & Ors v
Simpson & Anor (1974) 3 ALL ER 722 (CA); Gunn & Ors v Sharpe & Ors 1974 2 AUER
1058 (QB)
must affect the result of the election for the election to be set aside. Even a serious breach of
the principles of the Electoral Act is not, in itself, sufficient to render the elections nullified: it
must be shown that the serious breach affected the results. Secondly, a mistake or non-
compliance which is trivial in the sense that the election itself was nonetheless conducted in
accordance with the principles of the Act cannot lead to a nullification of the election even if
it affected the result.

Both aspects are unfortunate and remain to be fully explored by the courts. Serious breaches
of electoral law must lead to a nullification of the result, whatever the relationship between
those breaches and the result of the election. The law must promote an appropriate electoral
morality if democracy is to be sustained. On the other hand, the integrity of the electoral
system would suffer irreparably if an irregularity which affects the result does not lead to a
setting aside of the election merely because it is trivial.
Be that as it may, although they have not yet fully explored the important of section 149, the
courts have recognized that the new formulation requires that an irregularity must affect the
result of the election for the latter to be set aside.153 It has been held that the onus on the
petitioner is to prove the mistakes or non-compliances with the law and once this has been
done, the burden shifts to the respondent to show that these were trivial and did not affect the
result of the election.154

What now appears essential is to be able to identify the “principles” of the Act, which are so
fundamental that any non-compliance with them can lead to the conclusion that an election
was not “in accordance with the principles laid down in this Act.” Although the Act refers to
“principles laid down,” there are no such express principles in the Act and one must
understand the whole scheme of the legislation to be able to extract such principles. In doing
so, it is submitted that the English origins of the Act must be borne in mind.155

Broadly, the basic tenet of the Act is to promote a democratic society in which elections are
conducted freely and fairly. The following principles may be extracted. First, every
registered voter must be afforded a full and free opportunity to exercise his/her right to vote.
This principle is evident in a number of provisions such as those relating to the opening of
polling stations and the postal ballot system. 156 It is a fundamental breach of this principle for
ballot papers to run out before the close of voting 157 or for some polling stations to be shut for
a greater part of the polling day.158 It is submitted that this principle is breached if election
officials fail to provide an adequate number of polling stations, with the result that a
substantial number of voters fails to cast their votes.

153
See Dongo v Mwashita; Makamure v Mutongwizo; Misihairambwi v Harare City Council
154
See Dongo v Mwashita
155
The current Electoral act follows closely the provisions of the UK. Representation of People Act, 1983 as
amended.
156
See Part XIV of the Electoral Act
157
See Mtoba & Ors v Sebe & Ors 1975 (4) SA 413 E
158
See Borrough of Hackney Case 1874 (31) LTR 69
It was held in Pio v Smith that a mere inconvenience to a voter does not amount to an
irregularity. In that case, a voter was required to complete a certain form before she could
vote. At the polling station at which she decided to exercise her right to vote, the requisite
forms were, for a temporary period, not there. She neither waited for the forms nor went to
another polling station in the some constituency where forms were available and did not vote.
The Supreme Court held that this was a mere inconvenience and not an irregularity as the
voter could either have waited or gone to another polling station.

In Dongo v Mwashita it was held to be a breach of the Act to insist that some voters produce
not only their voter’s registration cards but also national identity documents as the Act made
them eligible to vote by producing a voter’s registration card only. The extra requirements
had made it difficult for some voters to vote and this infringed the principle that every
registered voter must be afforded a full and free opportunity to vote. In this case, although
some of these voters had registered to vote, owing to the inefficiency of the Registrar
General’s office, their names were not on the printed voters roll. This did not take away their
right to vote as they had evidence of registration through the voters registration cards.

Secondly, the electoral environment must be conducive to a free election in the sense that it is
devoid of violence and of related corrupt or illegal practices. In other words, the environment
must be peaceful. This principle is evident from a number of provisions. For instance,
Section 83 empowers the President to order the abrogation of an election in a constituency if
“by reason of actual or threatened intimidation or violence or any other cause, it is unlikely
that a free and fair election can be held…” The Act also creates the offence of “undue
influence”159 which is targeted at perpetrators of violence. The courts have said that
widespread violence and/or intimidation surrounding an election is a fundamental breach of
the principles of the Act.160

Thirdly, the principle of one person, one vote is enshrined by various provisions relating to
the issue and manner of voting. 161 Thus, it is a serious breach of this principle for some
voters to be allowed to vote more than once.162

Fourthly, a person’s vote is a secret. 163 It is a breach of this principle if voters are subjected
to a voting process that compromises the secrecy of the vote. In Kutama v Town Clerk for
the Municipality of Kwekwe the petitioner alleged that some officials from the ruling party
entered a polling station and gave instructions to voters. Such conduct, if proved, is a serious
invasion of the principle of ballot secrecy.

Fifthly, the election must be conducted impartially and efficiently. Virtually every provision
in the Act governing the conduct of election officials points to this principle. In
159
See Section 105
160
See Kutama v Town Clerk for the Municipality of Kwekwe; Makamure v Mutongwizo
161
See Sections 56 -58
162
See allegations made in Makamure v Mutongwizo and Dongo v Mwashita
163
See Sections 57 and 75.
Misihairambwi v Harare City Council & Ors 164, the High curt criticized attempts by political
parties to influence decisions of election officials. Chinhengo J had this to say:
“In this case, there appears to have been an improper involvement of the ruling
party ZANU (PF) in the disqualification of the applicant. The court should be
seen to discourage any such improper involvement. This is not to say that a
political party which sponsors a candidate should not inquire into or investigate
the qualification of another candidate. Far from it, such political party is entitled
to exert itself in this way, provided that it stays clear of directly or indirectly
influencing the election officials as to the decision which they may take in respect
of any complaint lodged by it.”165

Regarding efficiency, it is a breach of this principle if the electoral process is characterized by

confusion such as where ballot papers are not available, voters rolls have countless mistakes,
some persons not registered to vote are allowed to vote, and so on.166

CONCLUSION

This survey of Zimbabwe’s electoral law as largely designed to put together the law with a
view to exposing the strengths and weaknesses of our system. It must be evident from this
exposition that some central aspects of electoral law in Zimbabwe are in need of reform.
Four such areas are (i) that the right to vote must be explicitly provided for in the Bill of
Rights as it is central to any vibrant democracy; (ii) the conduct of the election process must
be placed in the hands of an Independent Electoral Commission; (iii) the first-past-the-post
system must be mixed with some form of proportional representation to ensure that all
significant political voices in the country are represented and (iv) a special Electoral Court
must be created to deal with election petitions as expeditiously as possible.167

164
1998 (1) ZLR 398 (H)
165
At p.405 F-G
166
See some of those in Dongo v Mwashita
167
This call has already been made by Devitte J; see Makamure v Mutongwizo supra and Mhashu v Chiroodza
HH-43-97