Does the law require candidates for National Assembly seats to be registered voters in their chosen constituencies?
This is an odd question given that it must surely be obvious to anyone that in a democracy any person who wishes to represent others must be chosen from among those people. There must be a connection between the aspiring representative and those that he seeks to represent in Parliament. An outsider cannot impose himself upon a people and seek to represent them.
Nevertheless, odd as it might seem, this question has become relevant in the wake of events in Hurungwe West constituency, the scene of a recent by-election whose circumstnces have attracted controversy.
It has since been discovered that the name of the candidate who went on to win the by-election, Keith Guzah of Zanu PF, does not appear on the constituency’s voters roll. Instead, his name appears  on the voters’ roll of another constituency in Magunje. For this reason, he was ineligible to vote and in fact did not vote in the by-election, which ironically, he went on to win, producing this rather odd situation which has no known precedent.
This has raised the question as to how a man who is not a registered voter in a constituency can still go on to be an elected representative in that constituency. For factual accuracy, it is important to note that this is not because of Guzah’s own doing. The information shows that he did try to register on the Hurungwe West voters’ roll, but ZEC bungled the exercise leaving him and hundreds of other voters failing to vote because their names were not on the voters roll and were therefore ineligible to vote.
Nevertheless, a question has arisen as to whether the law requires a candidate for a National Assembly seat to be a registered voter in that constituency?
As I have already stated, the answer to this question would seem to be obvious that yes, a candidate can only be drawn from persons registered to vote in that constituency. However, a view has been proffered that there is no such requirement or expectation for candidates in National Assembly elections. It has been said that the requirement exists only for Senators and Local Authority election candidates, in which case the law specifically requires that the candidate must be registered voters in their respective jurisdictions.
I respectfully disagree with this view and wish, in this article, to explain why it is in the contemplation of the Electoral Law that a candidate in elections for a National Assembly seat must be registered in the relevant constituency. That there is this expectation and implied requirement is confirmed by the provision and existence of a facility in the Electoral Act allowing the registration as voters of outside persons who wish to contest as candidates in those constituencies.
We know already from s. 125 of the Constitution that one of the qualifications for election as a Member of the National Assembly is that one must be a registered voter. The Fourth Schedule of the Constitution, which deals with qualifications of voters, provides that “the Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll …†It is important therefore to proceed to the Electoral Law to observe how it prescribes rules for registration on the voters’ roll as that is where the facility for registration of candidates in their constituencies is provided for and it is arguable that this is done precisely because it is expected and required that a candidate must be registered as a voter in their respective constituencies. The facility for registration would not exist if it was not necessary.
The relevant provision in the Electoral Act that deals with voter registration is s. 23(1) which provides that,
“Subject to the Constitution and this Act, in order to have the requisite residence qualifications to be registered as a voter in a particular constituency, a claimant must be resident in that constituency at the date of his or her claim:
Provided that if a claimant satisfies the Registrar-General of Voters that he or she is or intends to be a candidate for election as a member of Parliament for a particular constituency in which he or she is not resident, the claimant may be registered as a voter in that constituency.â€
There are two critical items in this provision:
- The first is that ordinarily for a person to be registered as a voter, he or she must be resident in the constituency.
- The second aspect, which is in the proviso, is that a person who is not resident in a constituency can be registered as a voter if he or she intends to be a candidate in that constituency.
It is the second aspect that is relevant for our purposes. It is an exception to the general rule that for a person to be registered as a voter in a constituency, he must be resident in that constituency. In this exceptional case, one will be permitted to register as a voter in that constituency if he intends to be a candidate in that constituency. The significance of this clause is that it means the Electoral Law itself anticipates that a candidate in an election will be a registered voter in the constituency in which he/she is contesting.
It is this clause that permits the familiar scene where persons who are otherwise resident in urban areas are able to stand as candidates in rural constituencies. In this sense, when critically analysed, it demonstrates the elitist character of electoral laws, in that they facilitate the ‘migration’ of elites for purposes of elections from one constituency to another and this is usually from the urban to rural areas. It confers legitimacy to the ‘electoral migrants’ who move away from their usual spaces to new spaces only for purposes of getting elected into Parliament.
This clause would not exist if it was not necessary for candidates to be registered in the constituencies in which they wish to run as candidates. A person could just present himself in another constituency without the need to be registered there. It would not be necessary to have the proviso to s. 23(1) at all. The clause would simply end where it states that an applicant for registration as a voter must be resident in the constituency.
However, because it is necessary for a candidate to be registered in the constituency in which he is seeking to contest, the proviso was designed precisely to facilitate the registration of outsiders who wish to contest in constituencies without having to fulfil the usual residence requirements. What else would be the rationale of this proviso and exception to the general rule if it was not necessary for the candidate to be registered in the constituency in which he is contesting? It is arguable that this proviso implies the necessity of the candidate’s registration in the constituency in which he or she is seeking election.
It is important to note that the exception provided in the proviso to s. 23(1) applies specifically to candidates in constituencies, which are National Assembly seats, and not to candidates for Senatorial or Local Authority seats because those are dealt with in other parts of the Electoral Act. It was not necessary to repeat the specific requirement that candidates for National Assembly seats should be registered as voters in their constituencies because that is already implied in the proviso to s. 23(1). This proviso would not be necessary if it was not a requirement for candidates of National Assembly seats to be registered in those constituencies.
Further, it is important to note that there are other supporting provisions, such as s. 24 of the Electoral Act, which further elaborate the process of registration of a candidate who wishes to contest in a National Assembly constituency. While s. 24(1) requires that all persons seeking registration must present themselves before a constituency register, the same provision makes a special dispensation for candidates who can lodge directly their registration forms at the Registrar of Voters. S. 24(2) allows candidates to specify an address in the constituency which would be deemed their residence for purposes of delimitation. All this would not be necessary unless there is an expectation and a requirement that candidates for National Assembly seats must be registered in their constituencies.
Additionally, the language of the provision to s. 25 is even more supportive of the argument that registration of a candidate in the constituency is not only expected but is a necessary requirement. It states as follows in the proviso,
“… where an applicant seeks transfer of registration because he or she is or intends to be a candidate for election as a Member of Parliament in a constituency in which he or she is not resident, the applicant shall send the appropriate prescribed form to the Registrar General of Voters for his or her approval†(added emphasis).
The italicised and underlined words demonstrate that a person is not only expected but is required to transfer his registration for the purpose of contesting as a candidate in the relevant constituency. There is an implied requirement that a person who transfers registration may do so in order to facilitate his candidacy in a constituency. Why would the Electoral Law go to all these lengths to facilitate transfer of registration in order to contest in a constituency if it was not expected and necessary?
That indeed, there is a general expectation and requirement that candidates in National Assembly elections should be registered in their relevant constituencies is supported by previous electoral practices. As a general rule, candidates are registered as voters in the constituencies in which they would be contesting – indeed, this is why the law facilitates it. Those candidates qualify for registration or transfer of registration in those constituencies by virtue of the provisos to s. 23(1) and s. 25(1) as explained above.
In fact, all candidates in National Assembly constituencies are fully conscious of the need for them to register as voters in or to transfer their registration to the relevant constituencies as envisaged in the proviso to s. 23(1) and s. 25(1) and they actually do use this facility for this purpose. Indeed, this is precisely the reason why Keith Guzah sought to transfer his registration from his old constituency to Hurungwe West constituency. He was aware of the expectation and requirement upon him as a candidate seeking to represent Hurungwe West.
That a person who seeks to represent others should be one of them, either by virtue of residence or by virtue of registration as a voter is not only sensible but it is also consistent with the standards expected in a representative democracy. There has to be a connection between the representative and the people that he represents and this is why the law facilitates registration of candidates who do not reside in those constituencies. This principle is reflected in all elections – Senatorial, Local Authority and there is no logical reason why there would be an exception for National Assembly seats – which after all, form the core of Parliament.
There is no doubt in my mind that there is an expectation and an implied requirement in the Electoral Law that candidates for elections in National Assembly constituencies must be registered voters in the relevant constituencies. The law envisages this requirement and facilitates registration of candidates to fulfil it. Would it better if the Electoral Law spells it out in black and white as it does in respect of Senatorial and Local Authority seats? Yes. But this does not mean that presently that expectation and requirement does not exist. It is there and has been observed all these years. It is a principle that is firmly established both in law and practice and it must continue.
WaMagaisa
