Tests for elections’ credibility

Alex-Magaisa.jpg

Continued from last week

Postal voting
The process of postal voting is fraught with potential irregularities unless it is carefully watched. In the past, some opposition candidates have felt prejudiced after postal ballots were brought into a constituency after the counting process, leading to results being overturned.

Alex T Magaisa,Lawyer

Observers have an important role to watch over this process. The law sets out an elaborate and clear process by which postal votes must be handled. These procedures must be followed, recording the applicants, the postal ballots and the polling stations to which they are distributed upon arrival. It is probably best to assign specific observers to watch over the postal voting process.

Registration slips misuse

One problem is that some voters who are duly registered may be excluded from the final voters’ roll. This may become evident as parties scrutinise the voters’ roll.
How does Zec handle such a situation? Refusing such voters a chance to vote would be exclusionary while permitting them to vote exposes the electoral process to risks of manipulation.

In the past, Zec has allowed persons with voter registration slips to vote even though their names did not appear on the voters’ roll. The problem is that this facility was abused. There were allegations of fake voter registration slips having been produced and given to voters who went on to vote more than once.

People were bussed into constituencies where they did not reside, but used there fake voter registration slips to vote. The abuse of the facility to use voter registration slips on an industrial scale permitted otherwise ineligible persons to vote in constituencies other than their own. If Zec does allow voter registration slips to be used again in 2018, this should be carefully watched to prevent abuse.

Rule of law

The electoral process is both a legal and political process. It must be conducted in accordance with the law and in this regard respect for the principle of the rule of law is fundamental.

The rule of law can be either formal or substantive. A formalistic approach requires compliance with the law, regardless of the merits or quality of that law. Thus a law might be unfair, but as long as there is compliance a formal view of the rule of law would hold that it is consistent with the rule of law.

A substantive conception of the rule of law on the other hand is that the law must be consistent with human rights. This view of the rule of law means unfair laws would fail the test of compliance with the principle.

Zimbabwe has comprehensive electoral law. While some aspects of it are unfair, there are many aspects that are consistent with international standards. The problem in Zimbabwe is therefore not a lack of rules. It is that these existing rules are not implemented.

For example, both the constitution and electoral law require State media to be fair and impartial in its coverage of political activities. These rules have simply never been implemented. Likewise, parties may approach courts of law for relief. But either the pace of justice is slow or there is simply no compliance with court orders.

Sometimes courts refuse to hear matters on an urgent basis, even though circumstances show that they must be resolved urgently. In some cases, the resolution of urgent matters is delayed because judges reserve judgments for an unreasonable length of time.

The refusal by a High Court judge to hear the dispute between the MDC parties over the use of the name delayed the resolution of the matter.

Even though the Supreme Court reversed the order, the matter had still not been heard or resolved by the time the Nomination Court sat. A matter that was clearly urgent and needed a quick resolution was denied the urgency it deserved.

In other cases, government simply delays relief by appealing decisions granted by the court. This is the case over the voters’ roll. Although the Election Resource Centre (erc), a civil society organisation, got a court order requiring Zec to provide the provisional voters’ roll, Zec is appealing the decision, knowing it will take time before the matter is heard and finalised by the Supreme Court.

By the time a decision comes, it will be too late to do anything. From a formalistic perspective, Zec is perfectly entitled to appeal. But Zec is buying time. For an organisation that has been accused of lacking transparency, its appeal is an embarrassment which simply adds to the suspicions around its conduct.

The worst cases are where government and senior public officers simply ignore court orders. Chief Fortune Charumbira, president of the chiefs council, was sued by the ERC after he made political statements supporting Zanu PF and prejudicing the opposition. ERC won the case and ordered the chief to make a public statement retracting his statement. The seven-day deadline from the time he was served the order expired before he complied. He is clearly in in contempt of court. It remains to be seen how the court will handle his contempt. The fact that a senior chief and law-maker can choose to blatantly disregard a court order shows the utter contempt for the rule of law, which compromises the credibility of the electoral process.

Role of the military

It goes without saying that the military is an influential force in Zimbabwean politics, not least after the coup last November which toppled former president Robert Mugabe. The coup was even sanitised by a bizarre court order in which the judge incredibly ruled that the military action was perfectly constitutional.

The case showed the extent to which the authors of the coup were willing to go to sanitise the military operation and justify the military’s role in political affairs. If it happened then and if it was sanitised by the courts, what will stop it happening again?

The coup and the court order set two precedents that could easily be used to justify similar action in future, with the military seeing itself as a separate arm of the State. In the past, the military has intervened directly, such as in the 2008 run-off election.

Statements made by senior military figures in the past also supported Zanu PF and prejudiced the opposition. They have never been publicly retracted. Instead, senior military officers have been seen attending Zanu PF political occasions, such as the party’s congress.

There is an ever-present fear of the military and that it may intervene should results go against Zanu PF. Election observers have a duty to look into this issue carefully to determine whether the military is in any way influencing or being used by politicians to affect elections.

A clear declaration by the military making it clear that they will not interfere or intervene in the election process and that they will respect the outcome and uphold the constitution would go a long way in restoring confidence in the process and among voters.

Credible polls measure

When all is said and done, a final assessment of the election process will have to be made. That task falls on the shoulders of election observers. That is the de facto certification process which has a large bearing on the legitimacy of elections.

If observers agree that the elections were free, fair and credible, they would have passed the legitimacy test. If, however, they reach the conclusion that they were not free, fair and credible, they would have failed the legitimacy test. There is no reason to believe that observers will be unanimous in their assessment. Some may find them free, fair and credible while others will hold that they fall short of the expected standards.

The critical set of observers in this election are those who have previously been excluded from observing elections after the 2002 presidential election. It is these observers, largely from the West, whose opinion is much sought after by the administration and opposition parties. This is why the administration launched an elaborate diplomatic offensive since it assumed office last November.

There is a general view that it has won the attention and sympathy of some in the Western community, but it has also struggled to convince the Americans. In fact, the American view seems to be that elections are just one aspect of a set of factors that must be considered on the reforms front. This is a broader and sterner test.

In respect of elections, there are at least two tests which observers may use. The first is what may conveniently be called the “Absence of Violence” test. Under this test, the absence of violence would be regarded as equal to free, fair and credible elections.

This test draws on the history of elections in Zimbabwe, which have been marred by political violence. If there is no significant political violence, whatever the other irregularities, the election would be passed as free, fair and credible.

The second test may also be conveniently labelled the “absence of violence plus” test. Under this test, the absence of violence is only one of a range of factors to be considered in judging whether the elections are free, fair and credible.

The fact that there is little or no political violence does not automatically mean the election was free, fair and credible. This test considers a broad range of issues arising within the electoral process: the independence and impartiality of electoral authorities; the role of other actors, including the military and traditional leaders; the role of State media; compliance with electoral rules in regard to the voters’ roll, ballot papers, counting and transmission of votes, including postal votes.

Of the two tests, the “absence of violence plus” is obviously stricter and more comprehensive. The absence of violence test on its own is narrow and overlooks the fact that violence is not the only factor that affects the freeness and fairness of the electoral process.

Much will depend on what the approach favoured by the different sets of observers is. Zanu PF learnt from the 2008 disastrous elections that open violence is the surest way to lose legitimacy. There might be occasional violence because old habits die hard and because some unruly elements will always resort to force. However, it is unlikely to be systematic.

Instead, it may resort to more subtle methods — such as regular reminders to previously affected populations of the dire consequences that might visit them if they vote the wrong way. Memories of 2008 violence under the military-led Operation “Makavhotera Papi” remain fresh in the minds of people in the affected parts, especially in the rural areas. There may be no blood and wounds visible to the naked eye in this election but it does not mean there is no intimidation and psychological violence.

It will not be an easy mandate for election observers. Those who wish an easy way out will confine themselves to the “absence of violence” test because it sets a very low bar.

But those who really want to incentivise the Zimbabwean authorities and peers on the continent to hold elections that are substantially free, fair and credible will take the broader and more inclusive approach which considers not only the absence of violence, but also the absence of other manipulation strategies before passing an opinion on whether elections are free, fair and credible.

The absence of violence in elections is progress, but it is not good enough when other methods of manipulating elections are still prevalent.
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. — wamagaisa@me.com

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