THE founding tenets of Zimbabwe are based on respect for certain values and principles, which include, amongst others: the supremacy of the constitution, the rule of law, fundamental human rights and freedoms, the diverse cultural, religious and traditional values, gender equality, good governance and recognition and respect for the liberation struggle. These lofty principles are entrenched in the constitution, together with the principles of good governance, which, in theory, bind the state and all institutions and agencies.
The electoral system is supposed to be based on a multi-party democratic political system; free, fair and regular elections; respect for the rights of all political parties; respect for the people of Zimbabwe, from whom authority to govern is derived; the orderly transfer of power following elections; and transparency, justice, accountability, and responsiveness.
The charge, the allegation that, not only the 2018 general elections, but all elections in Zimbabwe, including the one that brought us our independence, subverted the will of the people, is a serious one. Yet it is often repeated as if it were fact. It is not only an indictment of the strengths or weaknesses of the administrative body that conducts elections.
According to my understanding of the “charge”, it is a condemnation of all state institutions and agencies of government at every level, that they are accused of violating the constitution, by not adhering to the principles of good governance, or to the founding principles and values which bind our nation.
In attempting to diagnose the illness which debilitates us as a nation what is immediately obvious is that our ailment can only be cured by strengthening state institutions and agencies — three pillars (the executive, legislature, and judiciary).It also means strengthening the fourth pillar — the media.
This analysis is premised on the fact that we have degenerated into the erroneous and fallacious habit of blaming current incumbents in all four pillars named above.
The prescription to our ailment is that we stop the vilification of office bearers. If our institutions are strong, individual office bearers will be bound by the structures in place. This will no doubt be an unpopular viewpoint, in our current polarised society.
Political advantage can be gained by repeating certain narratives which are not based on truth, but which seduce popular support. In order to move forward as a nation, we must introspect, then come up with proposed programmers of action. The key is understanding electoral processes and polling station procedures, sending polling agents for training, as well as fielding agents in each polling station.
A stolen election, in my humble view, is one in which the will of the people is subverted, by way of deliberately altering numerical calculations, by way of various electoral malpractices, such as violence, intimidation, vote buying, abuse of the advantage of incumbency, voting in an uneven or unequal playing field. Stealing an election is not about perceptions, the charge must be premised on verifiable proof of the allegations which are made. This is the crux of the problem.
A brief look at some of the areas of concern during to 2018 general elections might shed some light. The biggest allegation is that the failure to align all our laws to the new 2013 constitution resulted in some practices which, though technically permitted by Acts of Parliament, were in practice undesirable and void to the extent of inconsistency with the new constitution.
Some would say that this is an indictment on the institution of parliament. It demonstrates the weakness of a legislative body whose effectiveness may be dictated by other political realities. Some would call it the tyranny of the majority. Others call it democracy — the majority rules. Others still, point out that the Electoral Act was amended, in that same parliament, just before the elections.
The harsh truth is that democracy dictates that the majority hold sway over which changes to the electoral law to adopt or reject. So, parliament is working as it should, as an institution. Some people are unhappy that the changes they expected to see did not materialise.
An offshoot of this contentious narrative is the unequivocal reality that the Zimbabwe Electoral Commission (Zec), whose function it is to prepare for, conduct and supervise elections, to register voters, to compile voters’ rolls, to design and print ballot paper, to conduct and supervise voter education and to accredit observers, is limited in the discharge of its duties to what comes out of parliament.
Section 8, Part 3 of the Sixth Schedule to the new constitution stipulates that the first election must be conducted in terms of an electoral law in conformity with the new constitution. The first election was held on July 31 2013. The question that must exercise our minds is whether that election, and the one of 2018, were conducted in terms of an electoral law which conformed to the new constitution.
If the answer is no, the next question must then be: Did Zec fail to discharge its duties in this regard? What is the role of the commission in ensuring that the elections are conducted in in terms of an electoral law which conforms to the new constitution?
The allegation is that Section 10, Part 4, of the Sixth Schedule to the new constitution left no room for doubt when it expressly announced that all existing laws must the construed in conformity with the constitution. Therefore, Zec, and all other state institutions, were obliged to conduct their duties in accordance with the constitution. There were instances where the existing electoral law did not conform to the constitution, or was vague or ambiguous, or where there was no electoral law guiding a certain aspect of electoral practice.
The charge is that Zec, and some state institutions, demonstrated lack of independence and bias, and failed to act independently. There was a bold and innovative suggestion that these institutions ought to have upheld the letter and spirit of the constitution, especially in areas where the Electoral Act was or is perceived as being inconsistent with the constitution.
And yet these accusers have not taken on board or acknowledged the fact that all the legal challenges brought against Zec to enforce this view were determined in favour of the electoral commission. One recent judgment has condemned state media practitioners.
Much has been said about the alleged numerical irregularities in the final tally and declaration of the winner in the presidential election. What is instructive is that the petitioners who went to the Constitutional Court to have that declaration set aside were happy with the outcome of local government elections and National Assembly elections. They were happy with those results, they did not challenge them or seek to have them set aside. They were happy for their duly elected members to take oaths of office and receive allowances and motor vehicles.
One can safely conclude that the electoral management body conducted free and fair elections in two tiers, and only in its conduct of the third tier, the presidential election, did the results become so inaccurate, unfair, not verifiable as to warrant the declaration of the winner to being set aside. Why not challenge all three tiers?
Those political parties or civil society organisations which had polling agents in all polling stations had their own copies of the V11 form, which is filled in at the end of counting and collation in polling stations. There was no allegation that any agent, in any polling station, anywhere had refused to countersign the V11 form for any reason. Agents are trained to know that signing that V11 form is verification or notice that all polling station procedures went smoothly and the counting went smoothly and that the result was accurate. We can safely conclude that 10 800 polling stations successfully counted, collated and tabulated figures and filled in forms which were signed to signify acceptance of the outcome.
So what went wrong? Ward collation proceeded smoothly, constituency collation also went smoothly and winning members of wards and constituencies were declared duly elected. There can be no basis on which we can find that the same V11 form, which supported the correct winners in the local government and constituency level, suddenly became poisonous as a basis of supporting the presidential result.
The only point I wish to emphasise is that an election starts and stops inside every polling station. It is lost or won inside that polling station. If polling station procedures were unreservedly endorsed by all observers, that should be the end of the matter.
There are allegations that the political environment was not level, it was uneven, that gender issues were not adequately addressed because of rampant physical and psychological violence against women, citizens were reluctant to report human rights abuses, voter registration and processes were not accurate, transparent or accountable, inclusive or sustainable or cost effective. There is a case here for better voter education strategies and implementation which requires commitment by Treasury in terms of timeous funding of all processes.
A case in point is the results management procedure which was vilified because voters did not understand it and were manipulated and misled. Livestreaming of results is possible, with the requisite legislative and budgetary support. What is more important is aggressive and intensive voter education, and remedies to punish the misinformation of voters. The media regulations of 2008 are outdated and must be revamped and updated to be more effective and to give real-time remedies to aggrieved candidates and voters.
Parliament must harmonise and align the Electoral Act and its regulations to the new constitution timeously. Equal participation of women must be enforced by a law that enforces a gender sensitive environment. The diaspora vote must be operationalised in time for the electoral management body to educate voters on its efficacies. The voters’ roll issues must be clarified by appropriate amendments to the Electoral Act.
That law must stipulate specific dates by which a final voters’ roll may practically be provided well before the sitting of the nomination court.
If it is the will of the people that there be an independent audit of the voters’ roll, the law must say so expressly and prescribe the actors and the relevant institution which must pay for that. The right to privacy versus the right to freedom of information and the supply of voters’ rolls with pictures — all these issues must be expressly provided for. Postal votes are linked to the diaspora vote; in what shape, manner or form can this be extended to diasporans?
Parliament must enact a law to register and regulate political parties and give teeth to the Electoral Code of Conduct.
Criminalising electoral malpractices has not helped in reducing them, because of the vicissitudes of the criminal justice system, which is slow and cumbersome. Speedy, cost-effective and real-time remedies may be provided for (by parliament) such as hefty fines and removal of candidates from the ballot paper.
In media law reforms, there must be regulation of social and online media to prevent hate speech, misinformation and disinformation about electoral issues that are going unpunished. The roles of the police, traditional leaders, and Chapter 12 Commissions during the election period must be further clarified and gray areas addressed, again by appropriate legislation. The right to vote in Zimbabwe is subject to limitations. The residence requirement which prevents diaspora voting is one. It can be removed—by parliament. The right of prisoners to vote is another.
Do we have the requisite funds to facilitate campaigning in prisons?
In conclusion, it is my view that we must be more robust in strengthening our institutions. We must respect them, or change what we do not like about them. Individuals are not to blame for the weaknesses of our institutions.
We, collectively, are to blame for entrusting the power to make laws for the peace and good governance of our country, to institutions that we do not trust. If legislative authority is derived from the people and is vested and exercised on the people’s behalf in accordance with the constitution, then, surely if the people have spoken by choosing the leaders they want, the minority should respect the will of the majority. That is the essence of democracy.
Without evidence to prove the charge that the will of the majority was subverted, what is left for a true democrat is to accept the outcome.
I rest my case.
This article is part of a special series focussing on electoral processes and reforms.