For the first time since the 2002 presidential elections, Zimbabwe has extended an open invitation to a wide range of international election observers. Western observers have not been welcome to observe Zimbabwean elections after they passed negative judgment on parliamentary and presidential elections in 2000 and 2002 respectively.
Alex T Magaisa,Lawyer
International observers who were invited after 2002 were from “friendly” countries, such as China, Russia and the Caribbean. In 2013, appeals to have a broader range of international observers were flatly rejected by the Robert Mugabe regime.
So what has changed?
The removal of Mugabe last November opened a new chapter in international relations, with the new administration led by Emmerson Mnangagwa making rapprochement with the West, one of its top foreign policy priorities.
This is a marked change from the antagonism of the past. The invitation to Western observers is a significant policy-shift which falls squarely within this framework of seeking renewed relationships with the powerful Western economies. Zimbabwe has already formally applied to be re-admitted into the Commonwealth. Mugabe had left the Commonwealth in a huff, in response to the body’s criticism of Zimbabwean elections. For the first time since that acrimonious divorce, the Commonwealth will be returning to observe elections in Zimbabwe.
The return of international observers means, in theory, there will be more scrutiny of elections. This should provide an incentive for the regime to behave and to conduct an election that would pass the free and fair test. The underlying assumption is that the Mnangagwa administration cares for legitimacy and will, therefore, try to fulfil the conditions necessary to ensure the legitimacy of elections. Of course, it does not follow that the desire to be re-admitted into the community of nations will be matched by a real commitment to hold free and fair elections. Indeed, the administration may think it is enough to put up a show that suggests compliance when in reality little would have changed.
Search for legitimacy
Elections are part of the process that is necessary to earn procedural legitimacy. They must be conducted in accordance with set rules and standards. These rules and standards are found both at domestic and international levels.
Election observers play a critical role because they are part of the certification process of determining whether elections have been conducted in accordance with those rules and standards, that is, whether elections are free and fair. A positive report by election observers will go a long way in supporting the procedural legitimacy.
Conversely, a negative report will be a huge blow for procedural legitimacy.
The Mugabe regime suffered weak procedural legitimacy partly because since 2000 it never received positive election reports from international observers who, in any event, were excluded from the observation process. Mnangagwa hopes the invitation of international observers is one of the key steps in the search for the elusive procedural legitimacy.
Regional, international standards
One point to note, though, is that it is not very hard to earn procedural legitimacy, which is largely guided by formalism. Procedural legitimacy on its own is not a measure of democracy. The test is quite simply whether set procedures have been followed. It applies to a monarchy just as it does to a democracy. Therefore, a hereditary king or chief has procedural legitimacy if the rules of hereditary succession are followed, no matter how unfair they are.
For example, they may exclude women from the line of succession, thereby violating widely accepted gender equality norms. It does not matter that there is no democracy in such a process. Likewise, the head of a religious organisation who is selected by a small group of people has legitimacy as long as those agreed procedures are followed.
In a democracy, procedural legitimacy is earned through an election. The government has to be elected in accordance with the procedures set out in the electoral law. The quality of those rules is not an issue. This is why some dictators religiously hold elections. They make rules, unfair rules, which they faithfully follow to the letter and afterwards claim to have been duly elected in accordance with the law. When they are challenged that their rules are unfair, their response is that they are a sovereign state with the power to make their own laws which they followed. Their aim is to claim procedural legitimacy.
This is why, for example, when asked to conduct elections fairly, electoral institutions such as the Zimbabwe Electoral Commission (Zec) respond by saying that they are simply following the law and they have no power to change it.
This is why procedural legitimacy on its own in the formalistic sense is not enough. It has to be qualified by a consideration of the substantive quality of those procedures. Indeed, this is why regional and international standards and rules have been developed over the years and are becoming increasingly influential in domestic elections. They are a response to the fact that domestic standards and rules on their own are inadequate as a measure of legitimacy. They may not be legally binding, but they have persuasive force.
This is why observers must not only look at a state’s adherence to domestic laws but also substantive compliance with the letter and spirit of regional and international standards developed by the African Union and Sadc. These regional and international standards infuse qualities of fairness and justice which may be missing from domestic laws.
Observers are therefore encouraged to measure the quality of Zimbabwe’s elections not only against domestic laws, but also in respect of regional and international instruments governing elections.
Beware of tokenism
As already stated, the Mnangagwa administration is desperate to earn legitimacy through the forthcoming election.
Electoral rules can no longer be changed because the constitution prohibits any changes from taking effect for the election once the election date has been called. The election date has been proclaimed so all parties are stuck with existing rules, however unfair they might be. If the authorities stick to those laws and apply them to the letter, they might satisfy procedural legitimacy. But what if they do not meet regional and international standards? Observers are likely to defer to the domestic rules, citing national sovereignty.
But even here, observers must watch compliance very closely. There is a danger of tokenism. Tokenism is where the state and electoral authorities make a performance rather than substantive compliance with the rules. The aim of this formal, dry process of compliance would simply be to tick the boxes. They create a façade of compliance, whereby they appear to be complying with the rules when in fact the status quo remains.
A good example is in relation to the requirement for fair and impartial coverage by state media, which is a constitutional duty. The ZBC might cover a single event by the opposition, while covering 10 by the ruling party. Likewise, the Herald might cover the opposition parties, but only in negative terms while covering the ruling party in positive terms at all times.
They will tick the boxes that they are giving the opposition space and air time but, substantively, it is actually unfair because of the content and quality of the coverage. Observers must be adept at picking out token appearances by the opposition in state media and the unfairness which is evident in the content and quality of the coverage.
Voters’ roll and turned away voters
The voters’ roll is a critical instrument in the electoral process. Zimbabwe will be using a new voters’ roll after the biometric voter registration process under which voters were registered since 2017. This process has been long and controversial. It took too long to implement, leaving little time between registration and the election. The process of preparing the voters’ roll has been hurried and there are concerns that the final voters’ roll may contain too many errors.
Zec has stated that interested parties are free to audit the voters’ rolls and to submit recommendations. However, this means little. It may be recommendations for future elections. Zec does not state what it will do with information showing the voters’ roll has problems. How Zec deals with any information showing errors and irregularities on the voters’ roll is key to the legitimacy of the election process. It undermines the legitimacy of the election if the voters’ roll is not a true and accurate representation of the electorate and if errors are not rectified.
The risk here is that it may lead to disenfranchisement if voters are turned away on account of problems with the voters’ roll. This could be for one of a number of reasons: the voter’s name may be missing from the final voters’ roll, the voter’s name may be on the voters’ roll but some details may be erroneous, such as their gender, date of birth or ID number. Third, a voter may find that their name is registered in an area that is different and far away from where they reside or believed they would be voting.
The risk of voters being turned away is not fanciful. It was a big problem in the 2013 election, as noted by election observers. Observers must be vigilant to this potential problem, especially with a new, hurriedly-prepared voters’ roll which has not been subjected to a thorough audit. If there is a pattern where large numbers of voters are turned away in particular constituencies, this could signal a serious problem that could undermine the legitimacy of the process. The opposition has previously complained that the pattern of turned away voters was most defined in their strongholds in urban areas.
To be continued next week.
Magaisa, a law lecturer and researcher, is former advisor to Zimbabwe’s prime minister. He regularly writes on legal and political issues. — firstname.lastname@example.org