Continued from last week
At the time of writing this piece, three weeks after the closure of the voters’ roll, the Zimbabwe Electoral Commission (Zec) had not yet availed the voters’ roll to parties, candidates and the public as required by law.
Alex T Magaisa,Lawyer
The election management body eventually relented and availed the voter register to the opposition, but a lot of questions have arisen over its credibility.
Zec actually appealed a court order won by Election Resource Centre, an election organisation, requiring the polls management authority to deliver the provisional voters’ roll.
The appeal will suspend enforcement of the order, eating away at the time leading up to the election on July 30. One would expect Zec to be more forthcoming with this information, rather than being seen to be withholding it. It only strengthens the view that they are hiding something, which does little to enhance the credibility of the electral process.
However, even more concerning are the misleading statements coming from Zec. The chairperson of Zec, Justice Priscillah Chigumba, announced a day after the Nomination Court sat on June 14 that the voters’ rolls were now available. The announcement brought a sigh of relief across the country and beyond. But it turned out that this was incorrect and misleading. Zec was still unable to provide the voters’ rolls. One local authority candidate, Pastor Evan Mawarire, tweeted that his efforts to get the voters’ roll were in vain and he was later advised to return the following Monday.
This is part of a set of factors suggesting that Zec is not ready for this election. It is difficult to comprehend why President Emmerson Mnangagwa announced an election date when Zec is still all over the place as far as the voters’ roll is concerned. There is no more important document in this election than the voters’ roll and Zec’s delay in providing it as required by law and the misleading statements from its senior officials do not inspire confidence in the electoral process.
New polling stations
It is important to watch the location and distribution of polling stations throughout the country. Zec recently got new powers to establish new polling stations. While Zec has tried to understate this power, stating that they have a new power to establish sub-polling stations at existing polling stations if they determine that a polling station has too many voters that cannot possibly be served by one polling station. The language of “sub polling stations” which Zec is using is encouraging but it is misleading and inaccurate.
In fact, the electoral law allows Zec a discretion to “establish two or more independent polling stations to serve the same polling station area”. This is a broad power, broader than Zec is letting the electorate believe. Zec has been known to insist on strict formalism in the application of the law. If they stick to their word that they are merely sub-polling station within the vicinity of the original polling station that would be fair.
However, the truth is there is nothing in the legislation stopping them from establishing independent polling stations. If they do so, they will be in compliance with the law and they will simply use this to defend their conduct. It is worrying that a body that normally insists on the strict letter of the law is presenting a water-down version of its power. Why is it misleading the public as to the true nature of its power?
The location and distribution of polling stations is a critical matter which demands vigilance because this is where ballot stuffing usually takes place at these new and little known polling stations. This is why the combination of an opaque voters’ roll and the power to establish new polling stations is potentially dangerous. It is therefore important for observers to watch carefully whether Zec sticks to its word and does not establish new polling stations far away from the original polling station.
Second, since Zec is going to have to split the original voters’ rolls between the multiple polling stations, voters must be advised well in advance of the polling day. The electoral law demands that information regarding location of polling stations must be published at least three weeks before polling day. This date is July 9 2018.
Traditional leaders, Panopticon Effect
Although traditional leaders do not earn their positions through democratic elections, they nevertheless have an important influence upon elections. Their sphere of influence is the rural areas where population and voters’ roll statistics have traditionally shown that most voters reside.
As traditional leaders, they have authority and influence over rural populations under their jurisdiction. They have also been accused of supporting the ruling party and of using their power to influence rural voters. Rural people live under a surveillance community in which they feel they are constantly being watched by traditional leaders and other agents of the state. We have previously articulated this problem as the Panopticon Effect in rural areas: the consequence of all this is that the privacy of the vote is compromised and the right to choose is heavily diluted.
In 2013, there were rampant allegations that traditional leaders literally rounded up people under their jurisdiction in order to exert their influence in their voting choices. It is important for election observers to watch carefully the conduct of traditional leaders and their undue influence upon local populations. Reports of any undue influence and intimidation must be recorded. A more detailed analysis of the role of traditional leaders is available here.
One of the big indicators of problems during the 2013 elections was the reportedly high incidence of assisted voters. The electoral law allows illiterate or disabled voters to request assistance from any person of their choice or the electoral officers. These should be exceptions since assisted voting interferes with the secrecy of the vote.
The risk is that this facility, which is intended to benefit vulnerable voters, is in reality used to manipulate the vote. The ruling party has been accused of forcing people to vote for it through this facility as it effectively means the voter’s choice will be known by whoever will be assisting them. It strengthens the Panopticon Effect, whereby voters feel they are always being constantly watched by agents of the ruling party so that even if they are not being watched they end up complying out of fear that they are being watched. There should not be high levels of assisted voting in a country that boasts of one of the highest literacy rates in Africa.
It is admittedly quite difficult for observers to identify, let alone measure the Panopticon Effect because this is something that goes on well before and even after the elections. However, it is important to understand background literature on this type of behaviour and how it impacts the election. The law has a number of safeguards which observers must carefully watch to note that there is compliance.
A person cannot assist more than one voter. There must also be a register of assisted voters and those who have provided the assistance. These records must be faithfully recorded and availed for analysis to ensure there is compliance with the safeguards. Observers must also be vigilant to signs of intimidation and pressure among voters. People must not be forced into assisted voting as has been alleged in the past.
Counting, transmission of results
The process of counting and transmitting results is one of the most critical in an election. Without a watchful eye, it presents opportunities for cheating the most basic of which is adding pre-marked ballots or simply miscounting to favour a particular candidate. The facility for a vote recount helps to minimise the risks.
Another important safeguard is the legal requirement for elections and observers to be present at the counting and to sign off the returns containing the results before they are transmitted. A third and important safeguard is the securing of ballot boxes once they are sealed.
Finally, the legal requirement for electoral officers to post the results outside the polling station or constituency office is also critical. Once results have been posted, members of the public can record the returns.
Observers must have a presence at polling stations. They ought to be satisfied that the procedures are being followed and that election agents are not being denied access and oversight of the process. Remote areas in the rural areas are the most vulnerable part of the electoral system, so observers should go beyond the usual urban and peri-urban constituencies.
Transparency and accountability regarding ballot paper printing and distribution is critical. This also applies to postal ballots, the process of which is regulated by law. The law requires Zec to provide all political parties and candidates with information regarding: where and by whom the ballot papers have been or are being printed the total number of ballot papers that have been printed the number of ballot papers that have been distributed to each polling station.
The number of ballot papers must not be unreasonably in excess of the number of registered voters. Zec has promised that this time they will print no more than an extra 10% of the number of registered voters, which is far more reasonable that the two million extra ballots it printed in 2013, raisin serious suspicions of manipulation.
Zec should have been more transparent in the procurement of ballot papers. Instead of an open process of procurement, Zec chose a direct procurement process. Zec has offered opposition parties to observe the printing process.
Observers should also consider observing this process. Opposition concerns regarding the quality of the ballot paper and potential for manipulation must be allayed and Zec can easily do so by being more open and transparent.
l To be continued next week.
Magaisa, a law lecturer and researcher, is former advisor to Zimbabwe’s former prime minister Morgan Tsvangirai. He regularly writes on legal and political issues. — firstname.lastname@example.org