It is clear from what has been said that the Electoral Act is not yet aligned with the Constitution. This is most regrettable and does not augur well for the forthcoming elections.
There are other problems with the Act apart from its unconstitutionality:
• Unavailability: the only updated version of the Act currently available is the one on the Veritas website. An important requirement of the rule of law – a foundational principle of the Constitution – is that laws must be accessible, because, if people cannot find out what the laws are, they will not be able to obey them or know their rights under them. The Act should have been amended months ago and published in its amended form well before the election.
• Incomprehensibility: Those who can find an accurate copy of the Electoral Act will not find it an easy read. It is long, repetitive and sometimes obscure. It is five years since the last election, and Parliament had ample time to produce a new simplified Act.
• Errors: There are many errors in the Act that remain uncorrected. For example, the procedure to be followed after polling in a presidential election is dealt with by two sections, sections 37C and 110, which are inconsistent with each other.
It must be pointed out, however, that the deficiencies in the Act do not mean the elections will inevitably be unfree and unfair. A good Electoral Act does not guarantee good elections just as a bad one does not guarantee flawed elections. Much depends on the people who conduct and contest the elections: ZEC’s commissioners and staff, election observers, candidates, political parties and their supporters. If they condone or engage in violence, rigging or other malpractices the elections will be marred however good the Electoral Act may be. Conversely, if they conduct themselves as democrats should, the elections will be effective, free and fair even if the Electoral Act itself is inadequate.