Must ZEC Comply with the Electoral Act?
Does ZEC have power to ignore what is laid down, if only by implication, in the Act and the regulations? The chairperson of ZEC has suggested that her Commission can do so because section 236(g) of the Constitution states that one of its functions is:
“(g) to design, print and distribute ballot papers …”
The constitutional power to design ballot papers, she argues, can be exercised regardless of any restrictions imposed by an Act of Parliament such as the Electoral Act and regulations made under it.
The chairperson’s argument does not hold water.
Section 157 of the Constitution gives Parliament the duty to enact an electoral law providing for the “conduct of elections”, and though the section does not specifically mention ballot papers they are an important part of the conduct of any election. So section 57 of the Electoral Act, which states that ballot papers must list candidates in alphabetical order, is probably valid and binding on ZEC. Furthermore the regulations, which go into specific detail about the design of ballot papers, were not enacted by Parliament but by ZEC itself under section 192 of the Electoral Act. ZEC chose to make regulations for the design of ballot papers and those regulations are binding as law. ZEC is not above the law, even laws which it itself has made. If it wants to change the form of ballot papers it must amend the regulations – and it cannot do so at this stage of the electoral cycle because of section 157(5) of the Constitution.
If ZEC had free rein to design ballot papers in whatever way it chose, disregarding the Act and the regulations, why should it stop there? It could disregard statutory time-limits, prepare voters rolls in any form that suited it, put polling stations wherever it wanted, and so on. Obviously ZEC must obey the law, and the law lays down the form of ballot papers.
Has ZEC Been Impartial?
One further point needs to be made strongly. Even if ZEC did have power to design ballot papers as it chose, it would have to do so fairly and impartially. If there are compelling reasons for listing the presidential candidates in two columns, then the two columns must be of equal length, or as nearly equal as the numbers allow, so that the candidates who head each column get that advantage solely by virtue of the alphabetical order of their surnames.
In the present case, where there are 23 candidates, if the list had to be split the ballot paper should have had two columns, one with 11 names and the other with 12. Instead, ZEC’s columns, one with 14 names and one with nine, are artfully designed to ensure that the President has the advantage of heading the second column. There can be no legitimate reason for this.
A final point is that when ZEC’s officials have been asked why they cannot use their broad constitutional powers to fill in gaps in the electoral law, they have answered that they must stick to the letter of the law as contained in the Electoral Act and its regulations. It is strange, to say the least, that in this instance they have chosen to ignore the clear provisions of the Act and regulations, and instead purported to rely on the Constitution.
Continued next page
List of 2018 Presidential candidates
2018 Nomination Court Presidential Election Results
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