The Zimbabwe Electoral Commission (‘ZEC’) is an independent electoral body that is tasked with the running of elections in terms of Zimbabwe’s Constitution of 2013. Section 238 of the Constitution sets out the establishment and composition of ZEC while section 239 outlines its main functions. What is more important however is that section 232 of the Constitution provides that ZEC is an independent body whose main purpose is to support the democracy of the republic.
ZEC has for the past few weeks been in the headlines of many newspapers albeit for the wrong reasons. Whilst it is undeniable that during an election season with so many parties contesting for the votes the body that is tasked with the running of the said election will feature prominently in these discussions, the manner in which ZEC has been featuring is rather very concerning. This short paper seeks to provide a quick analysis of the issues that ZEC has been grappling with over the past few weeks. It will also provide some legal insight into how ZEC should or could have conducted itself.
As briefly outlined above, section 239 of the Constitution provides for the functions of ZEC. The section provides amongst other things that ZEC must prepare, supervise and conduct elections of the President and Parliament as well as ensure that these elections are conducted efficiently, freely, fairly, transparently and in accordance with the laws of Zimbabwe. The section further provides that ZEC must give instructions to persons in the employment of the State or of a local authority for the purpose of ensuring the efficient, free, fair, proper and transparent conduct of any election or referendum; and lastly ZEC must receive and consider complaints from the public and take such action in regard to the complaints as it considers appropriate.
In addition, the Constitution gives more power to institutions such as ZEC by providing in section 342 (2) that ‘all institutions established by this Constitution have all powers necessary for them to fulfil their objectives and exercise their functions’. Section 342 (3) goes even further and provides that ‘where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well.’
The Electoral Act also goes to great length in ensuring the independence of ZEC, section 10A guarantees the independence of the Commission by prohibiting anyone including the state from interfering with, hinder or obstruct ZEC in the exercise or performance of its functions. The Act further provides among other things that the State and any person, body, agency, or institution belonging to the State shall afford the Commission any assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission.
Besides the Constitution and the Electoral Act, ZEC is also empowered by the SADC Principles and Guidelines on the Conduct of Democratic Elections which sets out the standards that must be adhered to by member states in ensuring free and fair elections. What is worrying, however, is that despite all these legislative guarantees ZEC’s credibility is in serious question. Many were shocked last week when news got out on social media alleging that police officers in Bulawayo’s Ross Camp were instructed to cast their votes in the presence of their superiors. It would appear that ZEC had no knowledge of this given their initial denial that this happened.
What is more shocking is the manner in which ZEC has handled this situation. Instead of trying to create and strengthen confidence amongst voters and all election stakeholders by ensuring transparency or even undertaking to investigate the claims, ZEC went on a defensive mode and denied there being such a postal vote at Ross Camp. At a later stage, ZEC argued that nothing was wrong with the manner in which the postal voting had been conducted because the Act makes no provision of electoral observers and agents when dealing with postal votes. What is more concerning, in my view, is the initial denial by ZEC that postal voting took place at Ross Camp, which raises very serious questions about how much control ZEC has over the electoral processes currently underway.
Although it is true that the Act makes no provisions for electoral agents and observers the same Act does not provide for any supervision when one casts a postal vote. the fact that police had to cast their vote under the supervision of their commanders points to a clear violation of both the Constitution and the Electoral Act.
The issue of postal vote and voting by post is governed by Section 74 and 75 of the Electoral Act which provides that the postal ballot must be delivered by registered post or a commercial courier service for delivery to the applicant, or the Ministry of Foreign Affairs if delivery is to be by diplomatic courier to the applicant- the applicant here refers to a person who would have applied for the postal vote and the satisfied the Commission that the person qualifies for the postal vote. Section 75 further states that a person whom a postal ballot has been sent shall…. Vote by secretly placing on the ballot paper across in accordance with section 57. The person referred to above will then post the ballot paper by either registered post or commercial courier back to the Chief Elections Officer.
Although there is no role for electoral agents and or observers here; there is certainly also no role for any ‘supervision’ by anyone whilst making this vote especially for the police commanders as was the case with the Ross Camp scenario.
It is also the duty of the Commission to ensure that voting is done secretly and in a secure way in terms of the provisions of section 155 and 156 of the Constitution. Section 156 (b) provides that elections must be conducted by secret ballot. Further section 156 (a) in particular provides that whatever voting method is used in any election the method must be simple, accurate, verifiable, secure and transparent. The situation that took place at Ross Camp a few weeks back was neither secret nor secure.
It is the duty of ZEC to ensure that a vote is cast in secret in a manner that is transparent and in accordance with the Constitution and the laws of the Republic. It is therefore disingenuous for ZEC to simply prophecy ignorance or even argue that the mere fact that the Act does not provide for observers and agents by implication police commanders can do as they please or decide to ‘supervise’ voting by their junior counterparts. As indicated above, ZEC has the power in terms of the law to give instructions to persons in the employment of the State or of a local authority for the purpose of ensuring the efficient, free, fair, proper and transparent conduct of any election or referendum. ZEC must also receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate.
ZEC thus cannot accuse the public or those who raise these concerns of being ‘detractors bent on destabilizing the country’. ZEC has a responsibility to meet and explain itself to the stakeholders when questions such as these are raised. This is more so if one considers the history of ZEC in running previous elections. The lack of any communications strategy at ZEC is also of major concern at times commissioners make public statements which are in constant conflict with those from the Chief Elections Officer (‘CEO’). This only saves to give credibility to critics who argue that someone else is in charge at ZEC and not the CEO.
The argument that ZEC is only an electoral boy and cannot investigate certain matters and or do certain things simply does not hold. Section 342 gives the Commission all the necessary powers it needs to fulfill its objectives and exercise its functions. To avoid any doubt as to what ZEC can or cannot do, the Constitutional drafters went a step further in section 342 (3) and provided that ‘where a power, jurisdiction or right is conferred by this Constitution, any other powers or rights that are reasonably necessary or incidental to its exercise are impliedly conferred as well’.
The credibility of the upcoming elections will be put in serious jeopardy if ZEC continues to behave in the manner that is has done so far. As the saying goes ‘justice must be seen to be done’ the same applies to this election. It must not just be free and fair. It must also be seen to be free and fair.
Manson Gwanyanya is a Human Rights Lawyer based in Johannesburg. He writes in his own personal capacity.