Extension of Time for Postal Voting

Part XIV of the Electoral Act allows Government employees, election officials and their spouses to vote by post if they are unable to get to their polling stations on polling day because of government business.  Section 75(1)(d) of the Act states that their postal votes must reach the Chief Elections Officer of ZEC by no later than 12 p.m. on the 14th day before polling day, which in this election means that postal votes must reach ZEC on or before the 9th August, i.e. in five days’ time.

That will be impossible.  There have been so many challenges to the nomination process and they are taking so long to resolve that ZEC has not been able to print all the ballot papers.  Only the day before yesterday the Supreme Court declared 12 opposition parliamentary candidates to have been properly nominated, so their names will have to be added to the ballot papers in various constituencies, and Mr Kasukuwere’s final challenge to his rejection as a presidential candidate will be heard by the Constitutional Court next Tuesday – one day before the deadline for sending in postal votes.

In view of this, ZEC has published the Electoral (Alteration of Period) Regulations (SI 140A of 2023) [link] which will extend the time for sending in postal votes by eleven days, meaning that postal votes to be counted if they reach ZEC by 12 p.m. on Sunday the 20th August.

Comment

The regulations were made in terms of section 192(4) and (5) of the Electoral Act, which read:

“(4) … The Commission may make such statutory instruments as it considers necessary or desirable to ensure that any election is properly and efficiently conducted and to deal with any matter or situation connected with, arising out of or resulting from the election.

(5) Statutory instruments made in terms of subsection (4) may provide for—

(a) altering any period specified in this Act within which anything connected with, arising out of or resulting from any election must be done;”

These provisions may be unconstitutional in that they give ZEC power to amend an Act of Parliament, something that only Parliament should be allowed to do.  The regulations themselves may be unconstitutional, in that they purport to alter the electoral law after the election was called, which is forbidden by section 157(5) of the Constitution.

On the other hand, what else could ZEC have done?  Leaving the law as it was would have left hundreds, perhaps thousands, of government employees and election officials unable to cast their votes and so would have deprived them of their fundamental rights as citizens.  Extending the time-limit for postal voting, even if legally dubious, was the only fair thing to do.

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