Watching the watchers — Spotlight on poll observers

Zimbabwe heads for elections on July 30, eight months after the removal of Mugabe. The African Union (AU) and the Southern African Development Community (Sadc) have a mandate to ensure that the country complies with the norms and conventions related to the holding of free and free elections. It also has a mandate to maintain peace and security in the region. Given that there is real risk of contestation of the outcome of the election by whichever party loses, peace and security are therefore threatened.

Siphosami Malunga,Lawyer

Dating back almost two decades, Zimbabweans have viewed the AU and Sadc with scepticism and mistrust because of their protection of former president Robert Mugabe’s regime at the expense of the Zimbabwean people. On the eve of its most crucial election in years, has the relationship and trust of Zimbabweans in the AU and Sadc changed? In any case, what is the expectation from the regional bodies in the upcoming election. What must Sadc and the AU do to help Zimbabwe now?

A history of mistrust

The attitude of Zimbabweans to the AU and Sadc reflected a breakdown of trust in the regional and continental institutions to play a fair and constructive role in resolving the country’s political crisis. There was a fear that Sadc may intervene to save Mugabe from removal. This mistrust had its roots in years of failure by both the AU and Sadc to help resolve the country’s challenges over the past decade-and-a-half stemming from previous electoral crises.

The AU and Sadc are no strangers to Zimbabwe’s electoral crises. Sadc operates under the auspices of the AU. In 2002, the MDC contested the election outcome and sought Sadc’s intervention. Despite a clear report by the Pan African Parliament Observer Mission attesting to the flawed electoral process, what followed was a prolonged back and forth by Sadc heads of states that yielded no specific outcome until the following election in 2008. Mugabe, it seemed, was just too fearsome for his compatriots to challenge.

Even the AU buckled under pressure at the Sharm el-Sheik Summit with former Zambian president Levy Mwanawasa bearing the brunt of Mugabe’s push back. Following the fixed, flawed and bloody election in 2008, Sadc was again seized with the task of resolving the Zimbabwean crisis with ex-South African president Thabo Mbeki assigned the mediation role. It is now known that despite receiving a report from an eminent panel of judges sent to monitor the electoral process that determined that the election was neither free nor fair, and therefore in violation of Sadc Principles and Guidelines Governing Democratic Elections, Sadc was unable and unwilling to pronounce it as such.

Instead, Sadc chose to railroad the parties into forming a coalition government that left Mugabe virtually in power and Morgan Tsvangirai — the real winner — in a subordinate role.

Between 2009 and 2013, Sadc again had to mediate multiple issues related to the implementation of the Global Political Agreement that it had underwritten. The majority of the outstanding issues related to this agreement, especially those pertaining to creating a conducive environment for free and fair elections, were not resolved by the time Zimbabwe went to its next election in 2013.

The 2013 elections were won by Zanu PF, but the outcome was contested. Among the concerns raised were allegations of a fixed voter register — which was not released to the opposition in time for the election and an electoral commission lacking in independence and staffed by Zanu PF — supporting former military and intelligence officials.

Despite these allegations, the opposition did not follow through with a legal challenge of the outcome nor did Sadc intervene further in Zimbabwe — until Mugabe’s ouster in 2017. To date, Sadc has not released its observer mission report for the 2013 election.

New kids on the Sadc block

To be clear, the Sadc leadership of 2002, 2009 and 2013 seems different from the Sadc of 2018. Previously, the Sadc Gentlemen’s Club (disrupted briefly by the unexpected entry of Joyce Banda in 2012), had morphed from the Frontline States, a grouping on Southern African governments formed from liberation movements with the ostensible aim of liberating the rest of the region from the last vestiges of colonial rule. The colonial hangover and liberation war solidarity therefore loomed large in the calculus and decision making of the body especially because some of the countries including Zimbabwe and Angola were led by the founders of the liberation struggles in Mugabe and former Angolan president Jose Eduardo dos Santos.

In 2018, Sadc is led by a “brand new” crop of leaders. Mugabe and dos Santos are gone. There are new leaders in most countries including South Africa, Zambia, Malawi, Angola, Tanzania, Mozambique, Lesotho, Namibia, Botswana, Mauritius and the Seychelles. It remains to be seen if the leopard will change its spots, but for now almost all the new leaders have signalled a different political path from their predecessors.

In Angola, South Africa and Tanzania, Presidents Joao Lourenco, Cyril Ramaphosa and John Magufuli respectively, have made fighting corruption a high-level priority. In Zimbabwe and South Africa, the presidents have made economic reform and openness their key priorities, whilst Sadc as a bloc has taken an unprecedented position of insisting that the DRC President Joseph Kabila respects the country’s constitution by organising elections in which he must not stand. All these signs point to a different Sadc from what we have known before. It is therefore legitimate to expect it to act differently from its unimpressive and unresponsive past.

AU and Sadc norms and principles

The Sadc Principles and Guidelines Governing Democratic Elections provide that in the event that a Sadc member state extends an invitation to Sadc to observe its elections such observation shall be conducted according to the Sadc Protocol on Politics, Defence and Security Co-operation.

In terms of the principles, the Sadc Electoral Observer Mission shall be deployed at least two weeks before the election. The principles set out the following obligations for all Sadc member states: full participation of the citizens in the political process; freedom of association; political tolerance; regular intervals for elections as provided for by the respective national constitutions; equal opportunity for all political parties to access the state media; equal opportunity to exercise the right to vote and be voted for; independence of the judiciary and impartiality of the electoral institutions; voter education; acceptance and respect of the election results by political parties proclaimed to have been free and fair by the competent national electoral authorities in accordance with the law of the land; and challenge of the election results as provided for in the law of the land.

The AU Charter on Democracy and Governance was adopted in 2007 and came into force in 2011. It sets out the normative principles and standards of good governance and democracy in such areas as rule of law, free and fair elections, and prohibitions of unconstitutional changes of government.

Breaking with the past

Both the AU and Sadc have deployed election observer missions to Zimbabwe. The AU Observer Mission, deployed on July 6, is led by former Ethiopian prime minister Hailemiriam Desalegne while the Sadc Mission was deployed on July 21 and is led by Ambassador Tete Antonio, Permanent Observer of the AU to the United Nations.

It is important to discuss the past record and credibility of AU and Sadc observers in Zimbabwe and elsewhere. In 2002, the Sadc Electoral Observer Mission declared the elections free and fair despite serious concerns and contradictory reports by the Pan African Parliament and the Sadc Parliamentary Forum. The Komphephe and Moseneke Commission Reports also found that the election was not free and fair.

In 2008, Mbeki, in his capacity as Sadc mediator for the crisis in Zimbabwe, deployed a team of high-level judges to assess the credibility of the election and the role of the military in the run up to the presidential run-off.

The report of this mission has never been made public. Sadc made no pronouncement on the election despite the fact that it took the Zimbabwe Electoral Commission (Zec) almost 45 days to release the results, and that the period preceding the run-off of the presidential election was evidently violent leading to the pull-out by one of the candidates, Tsvangirai.

In 2013, the Sadc Observer Mission, led by Bernard Membe, then foreign minister for Tanzania, stated that the fairness of Zimbabwe’s election was questionable because the voters’ roll was distributed too late to be verified, indicating that: “If the voters’ roll isn’t made available on time, the fairness of the election is brought into question. The observer mission inexplicably went on to find that the polls were ‘free, peaceful and generally credible’.”

As stated earlier, no observer report has ever been released for that election.

More recently, in 2017, the AU Observer Mission together with the European Union, Commonwealth and the United States observer groups determined the elections in Kenya were free and fair, only for the losing opposition candidate Raila Odinga to mount a successful legal challenge and secure the annulment of the election and a re-run, leaving electoral observers with egg on their face.
The Kenya experience has also raised the stakes in the quality and credibility of AU electoral observation, demanding a sea change in the standards and quality of observation. There are some several ways in which both Sadc and the AU can break with the past and meaningfully assist Zimbabwe to successfully navigate through its election. While every aspect of the election and the pre-election environment must be scrutinised to reach a conclusion on the fairness and credibility of the election, there are several key areas that the AU and Sadc observer missions will need to pronounce on in their assessment of the credibility and transparency of the election.
The voters’ roll
The voters’ roll is again at the centre of controversy and bone of contention in the 2018 election. In 2018, the voters’ roll was again distributed late by Zec. There are allegations that what has been distributed is not the final but provisional roll and that the roll that has been shared with the political parties and candidates is different from the final roll which is yet to be cleaned up by Zec. Other concerns have been raised about the voters’ roll.

Various analyses of the voters’ roll have been conducted with conclusions that the voters’ roll contains some anomalies and additional voters. One analysis by the Zimbabwe Electoral Support Network positively finds that the 2018 voters’ roll is an improvement on the 2013 one and that the anomalies in entries are not significant while another analysis by Pachedu has found that the voters’ roll contains evidence of ghost voters, suggesting serious manipulation of the roll.

The question of the sanctity of the voters’ roll is central to the credibility of Zimbabwe’s election. In order to provide closure to the contentious issue of the timing of the distribution of the voters’ roll, Sadc and AU will need at the conclusion of its mission to pronounce on the implications of the late and incomplete distribution of the voters’ roll on the credibility and transparency of the election.

The independence of Zec

A persistent allegation surrounding Zec has been its lack of independence based on accusations that it employs current and former security officials whose allegiance is to the ruling party, Zanu PF. These allegations have again surfaced in 2018.

More recently, there have been allegations of conflict of interest directed at the chairperson of Zec — Justice Priscilla Chigumba — considered by some to be over-stepping the chairperson’s right to privacy and by others going to the heart of her independence.

The sanctity of the ballot

The printing and management of the ballot has emerged as one of the most contentious issues in this election. The allegation by the opposition parties is that Zec is managing the design, printing and security of the ballot in a manner that violates the electoral laws, lacks transparency and credibility — unilaterally determining the numbers to be printed, the printers, the security and storage, and unlawfully managing the postal ballot voting — opening the way for possible manipulation and favouritism. It will be necessary for Sadc and AU observers to carefully assess each of these allegations and definitively pronounce their implications on the credibility and transparency of the election.

The voting process

The actual polling remains the most significant aspect of the election. Whilst this is yet to happen, the conduct of voting will undoubtedly form the core of the determination whether the election is free and fair. The ability of voters to cast their votes unhindered will be key to deciding the credibility and transparency of the election. The AU and Sadc observer mission will need to effectively deploy across the country to meaningfully monitor and observe the conduct of voting with a view to drawing reliable conclusions.

Conclusion

Zimbabwe is on the verge of either making a democratic breakthrough or lapsing back into deeper political uncertainty and crisis. Which path the country takes will largely depend on the credible and transparent conduct and outcome of the electoral process. Central to the determination of the credibility and transparency of the election will be the integrity and reliability of the AU and Sadc and its observer missions and their reports. In the past they have woefully let the people of Zimbabwe down.

This time round, for Sadc and the AU to help the country achieve a democratic breakthrough, the observer missions of the two bodies will need to up their game and take their responsibility and the people of Zimbabwe far more seriously than they have done before.

For this to happen, unlike in previous elections, their conduct and reports will need to effectively address all the key concerns related to the election in a manner that stands the real test of scrutiny and does justice to Zimbabweans. It is not too late to get onto the right side of history.

Malunga is the executive director of the Open Society Initiative for Southern Africa.