Senator David Coltart
13th July 2018
I have noted how ZEC has tried to argue that the current system of postal voting is lawful. ZEC argues that there is nothing wrong with all police officers and soldiers having to vote collectively under the supervision of their commanding officers, never mind voting in front of their commanding officers.
The law is governed by sections 74 and 75 of the Electoral Act as read with section 155(1)(c) of the Constitution and 156(a) of the Constitution.
Sections 74(2) and (3) state that the postal ballot is to be delivered by “registered post’ or “courier” “to the applicant” i.e. the individual voter (in this case police officer or soldier). In other words this is a personal communication – the envelope enclosing the ballots is to be sent direct to the voter at his personal address used when he/she registered as a voter, not to his/her barracks or police station, and certainly not to his/her commanding officer.
Section 75(1)(a) states that when the voter receives the envelope with the ballot he/she shall vote “secretly”. There is nothing in the law which requires police officers or soldiers to vote collectively in the presence of their commanders. Indeed the clear meaning of the law is that once an officer or soldier has received the ballot envelope in the post he/she can decide when to vote and where. That is entirely within that person’s discretion. There is no provision in the law allowing any different procedure for the police or army. Indeed the law bars anything different to the procedure laid down.
Once the police officer or soldier has voted in secret, section 75(d) says that the voter shall “dispatch the covering envelope”. In other words that is done by the individual voter, not that person’s commanding officer. Accordingly the collection of the individual’s voting envelopes is itself in breach of the law. If the police officer or soldier wants to post the envelope that is his/her right and he/she cannot be compelled to allow his/her commanding office to post the envelope.
The principle behind these laws is that the casting of a postal vote is meant to be as secret and secure as any other person’s vote.
Section 155(1)(c) of the Constitution states that elections must be conducted by “secret ballot”. Section 156(a) says that ZEC has the duty to ensure that voting systems are “secure” and that ZEC has the responsibility to ensure that “appropriate systems” are put in place to “eliminate electoral malpractices”. In other words ZEC cannot defer to police or army rules – it has a duty to ensure that all votes are cast secretly and securely. This means that if practices are being employed by third parties such as the ZRP or ZNA, which breach the clear meaning of the Electoral Act, ZEC has a duty to intervene.
It is patently clear from yesterday’s scandal exposed at Ross Camp that police officers were being forced to vote in front of their commanding officers, who would then collect and return their ballots. This was initially exposed by police officers themselves who objected to the pressure being brought to bear against them.
The good Lord only knows what systems are being employed in military barracks. ZEC has not bothered to check what systems are being employed in barracks and observers and political parties have no idea what is happening there, in contravention of section 156(a) of the Constitution which compels ZEC to ensure that all “voting methods” must be “transparent”, including voting in barracks and police stations.
In short the entire practice of forcing police officers and soldiers to vote collectively in, at best, the presence of their commanding officers, and at worst openly in front of their commanding officers, is a shocking breach of sections 74 and 75 of the Electoral Act and sections 155 and 156 of the Constitution.
Once again ZEC has breached the law. That some of its Commissioners such as Moyo Qhubani should still be defending these illegalities is profoundly unprofessional.
Senator David Coltart
Bulawayo
13th July 2018
Electoral Act
74 Issue of postal ballot papers
(1) If the Commission is satisfied, in regard to an application received not later than noon on the fourteenth day after nomination day in the election, that the applicant is entitled to a postal vote, the Chief Elections Officer shall issue a postal ballot paper to the applicant by placing in an envelope addressed to the applicant—
(a) the postal ballot paper; and
(b) a covering envelope addressed to Chief Elections Officer; and
(c) a smaller envelope marked “Ballot Paper Envelope†on the back of which shall be written the name of the voter, his or her voter registration number and the constituency and ward in which, and the address of the polling station at which, he or she is registered; and
[Paragraph amended by s. 42 of Act No. 3 of 2012]
(d) an unmarked envelope to be used n accordance with section 75(1)(b).
(2) Where more than one election is to be held concurrently in a constituency, the Chief Elections Officer may enclose in a single envelope all the postal ballot papers for which the applicant has applied together with the appropriate number of smaller envelopes referred to in subsection (1)(c) and (d)
(3) The Chief Elections Officer shall then effectively close the envelope addressed to the applicant and deliver it to—
(a) the nearest post office for registration and dispatch to the applicant by registered post; or
(b) a commercial courier service for delivery to the applicant.
75 Voting by post
(1) A person to whom a postal ballot has been sent shall—
(a) signify the candidate for whom he or she wishes to vote by secretly placing on the ballot paper a cross in accordance with section 57(c)(ii); and
(b) then place the marked ballot paper in the unmarked envelope referred to in section 74(1)(d), effectively close that envelope, and then place it in the envelope marked “Ballot Paper Envelopeâ€, and effectively close that envelope; and
(c) then place the envelope marked “Ballot Paper Envelope†in the covering envelope addressed to the Chief Elections Officer; and
(d) then dispatch the covering envelope by registered post or by a commercial courier service or diplomatic courier so that it is received by the Chief Elections Officer not later than noon on the fourteenth day before polling day or the first polling day, as the case may be, in the election.