<<previous  |  index  |  next>>

The “New” Electoral System

On August 17, 2004, the heads of state of the Southern African Development Community, which includes Zimbabwe, signed the SADC Principles and Guidelines Governing Democratic Elections.  These principles and guidelines constitute a benchmark against which to judge the March 31 election.  Since SADC adopted these guidelines, the Mugabe government has enacted two new electoral laws—the Zimbabwe Electoral Commission (ZEC) Act and the Electoral Act.  Unfortunately, neither law satisfies the SADC Guidelines.  Instead, both laws reinforce retrogressive electoral measures that the government introduced in the 2000 and 2002 elections.⁵

The ZEC is not an impartial, independent, or inclusive supervisory body.  Moreover, by the time it began to operate, many of its key functions—notably voters’ registration and the compilation of the voters’ roll—had already been exercised by the same discredited partisan electoral bodies that had performed those tasks in the prior elections. Consequently, the processes of registering voters, delimiting electoral districts, and providing for the inspection of voters’ rolls were conducted in a non-transparent and discriminatory way.  In addition, the ZEC Act restricts the right of NGOs to provide voter education and prohibits NGOs from receiving foreign funds for voter education. These provisions violate freedom of association and voters’ right to information, as mandated in the Constitution of Zimbabwe and in the SADC Guidelines.⁶  

The Electoral Act has some positive features, notably one-day polling, vote counting at polling stations, and the use of only fixed (and not also mobile) polling stations.⁷  However, it is a measure of the lack of trust in the electoral institutions that the opposition and the independent Zimbabwe Election Support Network (ZESN), both of which had supported these reforms, now fear that they will be used to favor the ruling party.  The Electoral Act also removed the president’s power to introduce electoral regulations by statutory instrument.  However, the Act did not alter the retrogressive regulations that had been introduced in 2000 and 2002.  Preexisting government controls over election observers and restrictions on postal ballots have also been incorporated in the Electoral Act. Proof of residency requirements that have the effect of disenfranchising particularly young urban voters are still in force.  And, for the first time in Zimbabwe, the Electoral Act makes it legal for the ZEC and the Electoral Supervisory Commission (ESC)⁸ another ostensibly independent supervisory body to use members of the police, the defense forces, and the prison service to perform crucial electoral tasks.  For instance, the ZEC may use these uniformed services as constituency elections officers and polling officers. 

The ZEC: Still Partisan and Too Late

The Mugabe government claims that the ZEC Act—which was approved by Parliament on 10 December 2004—meets the SADC Guidelines for an independent, impartial, and inclusive electoral supervisory body.⁹  However, Human Rights Watch, after analyzing the Guidelines and the ZEC Bill, found that the proposed law gave the president and the ruling party excessive power to appoint commissioners and created too many opportunities and requirements for Ministerial intervention for the ZEC to be considered an independent, inclusive, and impartial body.¹⁰  The ESC is also supposed to supervise elections as an independent body free from the direction or control of any person or authority, but unlike the ZEC, the ESC enjoys a constitutional mandate.

The ZEC is empowered to prepare for and conduct general elections, to direct and control the registration of voters, to compile the voters’ roll, and to keep the public informed about various issues, including the delimitation of constituencies.¹¹  However, the ZEC only became legally operational on February 1, 2005, just two months before election day.  Even after mid-February 2005, the ZEC had established only temporary offices in Harare, had no office phones, and only two staff members—an administrator who is the legal/political advisor to the Justice Minister, and the chief electoral officer.  At that time, the ZEC had still not placed an advertisement in the print media providing its telephone number and address.¹²

By the time the ZEC was formally operational, many key steps in the electoral process had already been completed under the supervision of the ESC and other electoral institutions.  The ESC is a partisan body, composed solely of presidential appointees, and mandated in the Constitution to be an independent supervisory authority.  The long-serving Registrar-General, Tobaiwa Mudede, a self-professed ZANU PF loyalist who has had a number of court judgments against his conduct of elections,¹³ and the Elections Directorate, presided over voters’ registration between May and July 2004.¹⁴  The Delimitation Commission, which is made up of presidential appointees, delimited the district boundaries, and the Registrar-General organized the inspection of the voters’ roll and the nomination courts where parliamentary candidates are nominated. 

Even after the ZEC assumed its duties, questions remained about the relative authority of the ZEC and the ESC.  In February, Joyce Kazembe, an ESC commissioner, reportedly said: “The ESC is the overall authority of supervision of elections by virtue of constitutional provisions.  We have the final say on whether they had been run properly.”¹⁵  The ZEC Act has not provided an impartial, independent, and inclusive electoral supervisory body.  Rather, it has merely added another partisan supervisory body—and done so too late for it to play a role in key electoral processes.

Under the Electoral Act, the ZEC can require the chairpersons of the commissions in charge of the public service and the uniformed services—the prisons service, the defense services, and the police service—to second their employees to serve under the control and direction of the ZEC as constituency elections officers and polling officers.¹⁶ According to one lawyer, “The use of personnel from these services [composed of ruling party loyalists] is likely to create the impression that these persons will carry out their electoral duties in a completely partisan fashion.”¹⁷  The Electoral Act also authorizes the ESC to second the uniformed services to perform electoral functions.¹⁸ 

Voters’ Registration: Continuing Discrimination

The amended Electoral Act retains the proof of residency requirements from the 2002 election.¹⁹  As explained below, these requirements effectively disenfranchise many potential voters, especially urban youth.  Since the opposition draws much support from urban youth, these requirements discriminate against it. 

When the Registrar-General’s office, under ESC supervision, conducted the voters’ registration from May to July 2004, the chair of ZESN, a network of civic organizations promoting democratic elections, and the MDC Secretary General, Welshman Ncube, complained that the exercise was not publicized.²⁰  The MDC Secretary General also complained to the ESC chair about deliberate and systematic disenfranchisement through the neglect of urban voter registration and the concentration on rural voters’ registration.²¹  The then ESC chair, former military intelligence officer Sobusa Gula-Ndebele, conceded administrative and logistical problems and requested, without success, that the Registrar-General’s office extend the deadline for registration.²²  These allegedly flawed voter registration figures became the basis for the delimitation of constituencies.

On September 20, 2004, the voters’ roll containing 5.6 million registered voters was presented to Judge Chiweshe, the chair of the Delimitation Commission.²³  ZESN’s chair said his organization had not seen a copy of the voters’ roll but “as far as we are concerned, a voter registration exercise is still to be done properly, and it is strange if the roll is completed already.”²⁴  The MDC president claimed that analysis of a hard copy of the voters’ roll indicated “it had been manipulated to secure even further reductions in urban seats.”²⁵  Pointing to inconsistencies in the roll which showed declines in the urban areas and increases in the rural areas where the 2002 census did not support such population changes, Morgan Tsvangirai called for an independent audit of the voters’ roll.²⁶  ZANU PF secretary for information, Nathan Shamuyarira rejected the MDC president’s accusation and said: “We (the government) are setting up an independent commission to conduct the elections and they (the MDC) can complain there.”²⁷  However, when President Mugabe announced the ZEC chair on January 20, 2005, it was none other than Judge Chiweshe the Delimitation Commission chair.  The MDC and the ZESN pointed out that to lodge a complaint about the delimitation process to the ZEC was futile because the Delimitation Commission chairman was also the ZEC chairman.²⁸  When the MDC’s Secretary General wrote to the Delimitation Commission chair to complain that “the voters’ roll information submitted to your commission is incomplete and disenfranchises thousands of persons who should be entitled to vote,”²⁹ the then Minister of Information Jonathan Moyo replied that if the MDC case were genuine, it would have been raised four months earlier.³⁰  In fact, as noted above, the MDC had complained to the ESC about the discriminatory and secretive nature of the voter registration process. 

The Delimitation Report was presented to President Mugabe on December 20, 2004.  It merged two urban constituencies in Bulawayo and two in Harare, all four currently occupied by MDC representatives, and it merged a current MDC-held constituency in Matabeleland South with one held by ZANU PF.  It also created three new rural constituencies.³¹  These boundary changes reduce the number of seats in the MDC’s urban strongholds and increase the number of seats in ZANU PF’s rural strongholds.  Judge Chiweshe attributed the reversal in rural-urban migration to the land reform program.³²  However, a ZANU PF central committee member admitted to Human Rights Watch on December 14, 2004 that there had been gerrymandering of constituencies to favor ZANU PF.³³ 

The opportunity for voters to inspect the roll was flawed by lack of government advertisement, inadequate numbers of inspection centers, and rumors that, even after the rolls should have closed, the ruling party allowed its supporters to continue to register.  Media reports claim that ZANU PF was instructing its supporters to continue to register and that voters’ registration was still occurring two weeks after the inspection period had ended in areas of Harare, Seke, and Lupane in Matabeleland North.  This recalls voter registration abuses in the 2002 presidential election.³⁴ 

Many urban voters were turned away because they had not complied with the proof of residency requirements.³⁵  Lodgers must provide rates bill in their name and with their address, or a letter addressed in their name from a store with which they have a credit account, or a lodger’s card, which is an agreement with the renter.  Even those living with their parents must prove that they are a “natural child”.  In such cases, a parent must accompany them to obtain an affidavit from a lawyer, a commissioner of oaths, or the police.  Rates bills are always in the landlord’s name, and the lodger’s card and the affidavit cost money and take time, thus straining resources.  These demanding requirements lead to disenfranchisement, especially of urban youth.

Sample audits of the voters’ roll indicate, as in previous elections, the need for a new transparent voters’ registration.  David Coltart, MDC MP, Bulawayo South, hired seven activists to do a door to door audit of the voters’ roll.  The police arrested the team on the grounds that Coltart needed permission for the exercise, and then released the group without charges.  The MDC filed an application in the High Court in Bulawayo for permission to continue with the audit without police intervention.  The judge granted the MDC request.³⁶  It emerged in court that there were hundreds of ghost voters, with some entered more than once, as well as other anomalies.³⁷  The MDC is carrying out audits in all urban areas and claims it has identified serious anomalies in Harare Central, Mbare, and Harare North.³⁸ 

The Right to Vote: Major Exclusions

The new Electoral Act preserves its predecessor’s provision that permits only those who are outside their constituencies on some type of government-sponsored business, be it electoral, military, or diplomatic, to use the postal ballot.  At the end of January 2005, seven Zimbabweans in exile and representing the UK-based Diaspora Vote Action Group brought an urgent application to the Supreme Court to request that it order the government to enable them to vote by postal ballot in the March election and any subsequent elections.  They claimed that voting was their fundamental right, that the constitution provided for their right to vote, and that the SADC Guidelines endorsed that right.  Judgment was reserved after the court hearing on 23 February.³⁹  The Supreme Court has still not made a ruling.

The case is significant because of the numbers effectively disenfranchised by the postal ballot restrictions and because of the Justice Minister’s political rationale for excluding Zimbabweans in exile from using a postal ballot.  It is estimated that 3.4 million mainly adults are living outside Zimbabwe.⁴⁰  According to the 2002 census, more than 50% of the total population of 12 million people is under fifteen years.⁴¹  Given that the voting age is eighteen years, the number of adults living outside the country roughly approximates the number of adults living inside Zimbabwe.  By excluding exiled Zimbabweans from the right to use a postal ballot, the government is effectively disenfranchising a substantial voter population.  As “factual background,” the Justice Minister claimed that most Zimbabwean exiles lived in the “hostile” countries of the UK, the EU, the US, New Zealand and Canada where only the opposition would be able to campaign, thus providing it with an unfair advantage over the ruling party.⁴²  As a lawyer for the exiled group remarked, most exiles are in South Africa with which the government has a friendly relationship.⁴³

Access to Voter Education: Minimal and Partisan

Under the ZEC Act, the ZEC has responsibility for providing voter education and controlling voter education by all individuals and local organizations, other than political parties.  Only the ZEC may receive and distribute foreign funds for voter education, and approve the participation of local organizations registered under the NGO Act, which awaits the President’s assent to become law.⁴⁴  Because the ZEC was formed so late, it and any organizations to which it may have subcontracted have provided minimal voter education for this election.  According to a spokesperson for the South African Solidarity Network which recently completed a nine-day mission in Zimbabwe: “There is a very low level of voter education going on, estimated to be happening in only 11% of Zimbabwe.”⁴⁵  The ZEC, as already noted, is a partisan body and ought not to exercise monopoly control over who provides voter education.

Independent Observers and Monitors: Only Government Invitees

The Electoral Act provides for the ESC to establish a committee to accredit observers, foreign and local.⁴⁶  The committee is composed of the ESC chair or vice-chair and four other government appointees.⁴⁷  Prior to accreditation, foreign observers must receive an invitation, either from the Foreign Affairs Minister or, in the case of other electoral supervisory organizations in the region, from the ESC.⁴⁸  Local observers must receive an invitation from the Justice Minister.⁴⁹  ESC accreditation, for which there is a prescribed fee, is necessary for observers to be allowed to enter a polling station or constituency center.⁵⁰  The fees are Z$100,000 for each individual representing a local organization, US$100 for an observer from an African country, and US$300 for all other observers.⁵¹  For local NGOs, these fees are high, especially since there is no guarantee that an application will be approved.

The assignment of the important function of accrediting observers to the ESC rather than the ZEC points again to the confusion of having two supervisory bodies.  It seems the only apparent criterion for the selection and accreditation of election observers is firm support for the government.⁵²  The government’s control over accreditation of observers has been more partisan than in the 2002 elections.  The SADC Parliamentary Forum, which was the only all-Africa observer team to issue a critical report on the 2002 election, has not been invited to observe the 2005 election. There will be no official observer teams from the EU, the U.S., or the Commonwealth, from which Zimbabwe withdrew in 2003.  The Congress of South African Trade Unions (COSATU) which has been highly critical of the Zimbabwe government and the Electoral Institute of Southern Africa were also not invited.  COSATU representatives were also barred from being part of other delegations.  SADC received its invitation on February 25.⁵³  According to the SADC Guidelines, it should have received an invitation at least 90 days before the election date, that is, at the beginning of January.⁵⁴  On March 11, ZESN had still not been informed if its request for accreditation had been approved.⁵⁵

An Impartial Electoral Court: Compromised

The Electoral Act provides for the creation of an Electoral Court to hear and determine election petitions, among other matters.⁵⁶  The Chief Justice, after consultation with the Judge President, must appoint at least one High Court judge to preside over the Electoral Court.⁵⁷  Appeals must be determined within six months from the date of the lodging of the appeal⁵⁸—a welcome provision, given the opposition party’s experience with the courts delaying decisions in its election petitions arising from the 2000 elections.  However, the Electoral Court is unlikely to inspire voter and candidate confidence because the judiciary is no longer viewed as independent.  The Chief Justice and the Judge President of the High Court are reportedly ZANU PF supporters, as are all but one Supreme Court judge and most of the High Court judges.⁵⁹