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The Big Saturday Read: Biometric voter registration and the 2018 elections


The most talked about issue as Zimbabwe starts preparing for general elections in 2018 is the use of biometric technology for voter registration. The Zimbabwe Electoral Commission (ZEC) began to take serious steps towards adopting Biometric Voter Registration (BVR) technology last year. As pressure mounted for ZEC to fulfil its constitutional obligation to carry out continuous voter registration, the electoral organisation indicated intentions to start a programme of registering voters using biometric technology. This announcement was welcomed by opposition parties and civil society organisations, which have long protested that the old voters roll was shambolic and unreliable.

A few months ago, ZEC announced that the process of selecting service providers for implementing the BVR system was underway. This process was supported by the United Nations Development Programme (UNDP). In exchange for funding the BVR system, the UNDP would have an oversight role in the process of choosing the service provider. Opposition parties and civil society organisations welcomed this too, believing the presence of a third party in the form of the UNDP as an important mechanism that would add some checks and balances in the selection process. They were concerned that a process in which the ZANU PF government had exclusive control would be subject to bias in favour of the ruling party. Opposition parties are wary of service providers that the Zimbabwean government has worked with in the past on the voters’ roll. One of them is Nikuv International Projects, an Israeli company that was implicated in the alleged rigging of the 2013 elections. The involvement of the UNDP in the selection process was therefore seen as a risk-mitigating mechanism.

Forestalling the BVR system

Nevertheless, two developments in recent weeks suggest that ZANU PF is uncomfortable with and would like to forestall the BVR system.

First, the government announced that it would be taking over the funding of the BVR system from the UNDP. This would mean the removal of the UNDP in the selection process of the service provider. In effect, this would mean the removal of the mechanism which opposition parties were banking on to check and balance ZANU PF’s wide powers as the governing party. The government is of course well within its rights as voter registration is a matter within its domain but its motives are questionable, particularly given that it had made undertakings to work with the UNDP. The legitimate expectations that the UNDP would be involved in the process have now been dashed and it is questionable whether this conforms to section 68 of the Constitution, which protects the right to fair administrative action.

Spurning the UNDP: Déjà vu moment

For those of us who have been following elections closely over the years, the government’s conduct in relation to the UNDP presents a déjà vu moment. Whenever ZANU PF senses that its exclusive control of the electoral process is in danger of being diluted, it takes defensive measures to protect its territory and this has happened before. Back in 2013, as we prepared for the July 31 elections, leaders of all parties, including President Mugabe, had agreed that since the country had no money, funding for the elections would be sought from the UNDP. The opposition parties were comfortable with this arrangement as it meant getting the UN involved in the electoral process and therefore providing a facility for the UN and general international community to observe the elections. ZANU PF was aware of what this meant and was hostile to UN or Western countris’ observation of elections. It therefore continued to work in the background to find ways circumvent the agreement to work with the UNDP. They had to find money from somewhere. The telecommunications sector was the source they were waiting for.

At that time, mobile network operators (MNOs) were due to renew their licences. The government struck a deal with the MNOs and the licence fees suddenly obviated the need to use the UNDP facility. A UNDP team that was on its way to Harare to carry out a preliminary fact-finding mission as part of the elections-funding process was stopped in transit by government, much to the opposition’s disappointment . With the UNDP removed from the process, ZANU PF had the exclusive control that it coveted, which meant the July 31 election was held without the checks and balances that the opposition had anticipated the UNDP would provide.

This is precisely what is happening with the BVR system. After initially selling a dummy to the opposition that it was happy for the UNDP to provide support for the BVR system and to have a role in the selection process, the ZANU PF government is once again reneging on that agreement. But just like in 2013, the UNDP cannot do anything if the host government is not interested in its assistance. It has no power to impose itself upon the Zimbabwean government. The opposition does not have serious options except to mount political pressure. The legal options are limited as they are unlikely to get any respite from the courts of law. They have to raise the political cost of ZANU PF’s reneging on its undertakings.

Change of heart

The second development is the propaganda blitz that has been launched by state media, in particular, by The Herald newspaper, against the BVR system. Erroneously conflating the biometric voter registration and biometric voting, which are two different things, he Herald argues that it is a luxury that Zimbabwe can ill-afford. It also raises concerns that the biometric voting system might be hacked, citing recent cases of alleged hacking of the elections system in countries like the US..

Seeds of doubt: Is it deception?

These attacks against the BVR system have already done enough to sow seeds of doubt in the minds of members of the public. Some people have already begun to show confusion over the wisdom of adopting the BVR system, questioning why the opposition parties are so keen on a system which could backfire. The Herald’s reportage has stoked these fears. As usual, there is no shortage of conspiracy theories. One of these is that ZANU PF is probably using a strategy of deception, by feigning opposition to the BVR system when in reality it is quite happy for ZEC to adopt it. According to this conspiracy theory, ZANU PF has already set plans to select a preferred BVR service provider which will do its bidding, and this view is given credibility by the fact that government has moved to replace the UNDP as funder of the process As the argument goes, the government would not have removed the UNDP if it was not interested in the BVR system – it simply wanted make sure it had undiluted control. According to this theory,by appearing to oppose the BVR system, ZANU PF knows the opposition will clamour for it and later it pretend to have succumbed, but in truth this is what it would have wanted all along. It would them have its chosen service provider to take control of the process. When the opposition then complain about rigging through the BVR system, they will look stupid in the eyes of the world – after all they are the ones who would have demanded it. The logical conclusion of this conspiracy theory is that the opposition parties should not take the bait, but that they must instead stop fighting for the BVR system. This is partly fuelled by the fact that some people are suspicious of technology and are not sure about using it for elections.

Like all conspiracy theories, it sounds plausible at first glance. ZANU PF has been so deceptive in the past that people have become suspicious of its every move. If it says one thing, people tend to believe it means the opposite. With too many scars from the past, people do not trust ZANU PF. However, this also leaves most people utterly confused, which means sometimes easy opportunities are spurned or missed on the basis that people think they are part of ZANU PF’s grand plan. Indeed, sometimes people give far too much credit to ZANU PF for planning things when in fact things would have happened by chance, without any fore-planning by ZANU PF strategists. In this case, while there is a risk that ZANU PF may be playing deceptive politics, I believe it is genuinely concerned that the BVR system could upset its tried and tested ways of manipulating elections. BVR presents a new system and historical path dependency means ZANU PF is far more comfortable to continue with a known electoral system. The equivalent in sport is the old adage that there is no need for a coach to change a winning team and formula. ZANU PF has 37 years’ experience of elections – all the knowledge and tricks it has gained over that time could be rendered useless in a new system with which it is not familiar. It is unsure of the BVR system and would rather avoid it because it does not want any surprises.

But why the sudden change of heart? Why, after ZEC announced it intended to adopt the BVR system a long time back and has already started the process of selecting a service provider, has ZANU PF suddenly decided that the BVR system is not a good idea after all? It is not as if the concerns that are being raised in the state media are new as far as the BVR system is concerned. True, there have been teething challenges in the past in countries like Ghana and Kenya where the BVR system has been used. But how do you improve if you do not start using a new system? In the 2016 elections, Ghana used the biometric system for the third time since 2012 and each time the system has been getting more favourable reports. It is odd that ZANU PF has waited until now to start voicing concerns about the BVR system. By contrast, it has never complained about ZEC failing in its duty to register voters on a continuous basis. This leads to a serious suspicion that the greater motive is to actually stop ZEC from conducting a new voter registration process. Instead, ZANU PF wants ZEC to revert to the old voters roll developed by Tobaiwa Mudede, when he was the Registrar of Voters for many years. I shall refer to it as the Mudede voters roll.

For the past 4 years, ZEC has faced demands to implement its constitutional mandate as the voter registration authority. The Constitution requires ZEC toregister voters on a continuous basis. In 2015, ZEC was taken to the High Court by Dumiso Dabengwa and his party, ZAPU. They were demanding that ZEC implements its constitutional mandate. ZEC actually opposed this application, arguing that the electoral laws had not been realigned with the Constitution. It was a spurious argument which made no legal sense whatsoever. Thankfully, the High Court saw through it and ruled in favour of Dabengwa and ZAPU, declaring that ZEC had a constitutional duty to register voters on a continuous basis.

Nevertheless, having ruled so favourably in respect of voter registration, the short judgment had two weak elements that rendered the outcome weak and ineffective:

The first was in respect of whether ZEC could continue to use the Mudede voters roll. Dabengwa and ZAPU had demanded that ZEC should not be allowed to use the Mudede voters' roll. The reason for this presumably was that they were concerned that Mudede’s voters’ roll was too compromised and could not be trusted. They wanted ZEC to establish a completely new voters’ roll. However, Justice Bhunu who handled the matter dismissed this part of the application holding that the Constitution did not prescribe the manner of compiling the voters’ roll, a matter left to ZEC’s discretion. As such, he reasoned, the court could not stop what the law did not prohibit. I shall shortly return to this point to explain what it means in the present context, as we head towards the 2018 elections.

The second limitation of the judgment was that having found ZEC to have a duty to perform continuous voter registration, it effectively gave ZEC an excuse to limit this role. ZEC had claimed that it could not carry out its constitutional mandate because it lacked resources.Justice Bhunu told ZEC that one was “obliged to cut his garment according to his cloth”. This meant ZEC was required to register voters in accordance with available resources. This was in fact an exit route for ZEC to avoid its general constitutional obligation to register voters on a continuous basis. As Justice Bhunu stated, “It is an established principle of our legal system that the law does not compel the impossible. The Commission wiII not be expected to carry out its functions beyond what is feasible within the confines of available resources.” Therefore, the judge ordered ZEC to “discharge its constitutional and statutory functions in a way it deems best suited for the purpose and within the scope and confines of the available resources.”

This meant ZEC could avoid a nationwide continuous registration exercise by simply citing a lack of resources. Justice Bhunu had used one hand to tie ZEC to its constitutional obligation but untied the rope with the other hand. This is why ZEC has only been registering voters in constituencies where by-elections were being held. This was well within the terms of the judgment issued by Justice Bhunu, which was in fact a dangerous precedent because it meant while the Constitution imposes a general duty on ZEC to carry out voter registration on a continuous basis, ZEC could do a box-ticking exercise while pleading poverty. . This kind of legal reasoning makes a mockery of the Constitution.

However, there are two important consequences from that judgment, which ZANU PF now wants to exploit:

By-elections’ voters’ rolls

First, the only new voters’ rolls that ZEC has created since it took over the role of registering voters are in respect of constituencies where by-elections have been held. Since the opposition has been boycotting by-elections since 2013, it is unlikely that opposition voters were motivated to register for the by-elections. The result is that most of these new voters’ rolls are predominantly filled with ZANU PF supporters. If ZEC decides to use those voters’ rolls in 2018, on the grounds that they are new, this might lead to the exclusion of opposition supporters. The opposition must remain vigilant, so that whatever happens to the BVR system, they ensure that voters in the by-election constituencies are registered.

Back to Mudede’s voters roll

Second, the judgment confirmed that ZEC is under no obligation to ignore the old voters’ roll developed by Mudede as Registrar of Voters. This is the point I referred to earlier. The demand made by Dabengwa and ZAPU in their 2015 case to prevent ZEC from using the Mudede voters’ roll was dismissed. This means ZEC would be well within its rights to use Mudede’s voters’ roll, which is a poisoned chalice. If, as suspected, the Mudede voters’ roll was at the centre of the rigging scheme in the 2013 elections, this might explain why ZANU PF is beginning to throw dust over the proposed BVR system. The aim is to retrieve the Mudede voters’ roll from the vaults and use it again in the 2018 elections. If so, it would be a complete disaster as the electronic version of Mudede’s voters roll has been one of the most closely guarded secrets of the Mugabe regime. ZANU PF must have invested a lot into it and it has served its interests well that there is no incentive for them to support ZEC’s plans to adopt the BVR system.

The fact that the ZANU PF government has taken over the funding and control of the BVR system is simply designed as a fall-back measure, just in case the opposition mounts enough pressure for its adoption. In that case, ZANU PF would still be able to control the voters roll by selecting a favourable service provider which will do its bidding. This is why the opposition has to mount a more serious campaign against the removal of the UNDP. The precedent of 2013 demonstrates that the removal of the UNDP takes away a mechanism for checks and balances where state institutions are heavily tilted in favour of the ruling party. Ordinarily, in a sovereign country, there would be no need to invite an external actor to play a role in the electoral process. But Zimbabwe’s situation is far from normal. The need for an honest broker has long been recognised and the UNDP’s role would not be the first time that it has been involved in the country political processes. The UNDP managed a US$ 21 million multi-donor fund which supported the constitution-making process.

But, as I have stated, the real danger is that ZANU PF wants to go back to Mudede’s voters’ roll. The matter is likely to drag long enough until there is very little time before the 2018 elections. ZANU PF’s strategy of disenfranchisement has always been to deny people the facility of continuous registration only to open a short window for voter registration just months before the election. This strategy was used successfully in the 2013 elections. It meant large numbers of eligible voters were excluded from voting, especially in the urban areas which are regarded as opposition strongholds. ZANU PF made sure voter registration facilities in the urban areas during that short window were limited. The long and slow queues frustrated potential voters, particularly the young people, with many going away unregistered. This is the same strategy that ZANU PF intends to deploy before 2018. ZEC will continue to plead poverty, using that to avoid its mandate to conduct continuous registration. The dispute over the BVR system will also drag the process until there will be no time for a new voters’ roll. There will eventually be a call for intensive voter registration, not to create a new voters’ roll but simply to pretend to be filling the long-discredited Mudede voters’ roll.

Should the opposition insist on the BVR system?

This is an important question. Is it worth the effort? Some are already suggesting that maybe it is not a priority. It is therefore important to consider the merits and demerits of the BVR system.

BVR technology uses physical features that are unique of each individual, such as finger-prints, facial scans, voice recognition and other features for purposes of identification. Since no two persons can share the same unique physical features the BVR system helps to eliminate the problem of duplications, which has previously affected Zimbabwean elections. An audit of the voters’ roll by the Research Advocacy Unit in June 2013 demonstrated large numbers of duplications, of more than 800,000 voters. BVR also offers a digital system which is more difficult to manipulate, although one drawback is that it could be subject to hacking. The quality of data tends to be of higher quality and accuracy. Furthermore, the system offers more precision in the verification process which would reduce the risk of turning away voters. The Zimbabwe Election Support Network reported that at estimated 750,000 voters were turned away at polling stations in urban constituencies in 2013.

However, perhaps the greatest advantage for Zimbabwe at this juncture is that it offers the real chance for a completely new voters’ roll, divorced from the Mudede voters’ roll which is heavily compromised. As a completely new system, it offers the best chance for a totally new voters roll. Given the centrality of the voters’ roll in the election process, a new voters’ roll will offer new opportunities and restore some confidence in the electoral system. For that reason, whatever weaknesses there are would be consider the price of getting a new Mudede-free register.

Nevertheless, for the sake of completeness, it is important to also appreciate some weaknesses and concerns around the BVR system. The initial costs of setting up a BVR system is usually a major deterrent. However, this is not a problem for Zimbabwe since the UNDP had offered to assist. Another drawback is that it demands time and preparation for implementation. This could be a challenge unless the process moves quicker. By now, ZEC should have done a pilot project in some of the constituencies. A BVR system is effective if all the ICT systems are put in place and personnel are sufficiently trained to handle the process and any glitches.

A BVR system can also have the risk of either a high False Rejection Rate (FRR) or False Acceptance Rate (FAR). This refers to the rate at which voters’ are rejected or accepted by the BVR system. A false rejection is where a valid voter is rejected by the system. This could be for any number of reasons – in rural areas exposure of hands to hard physical work, scratches, scars, debris, and others might distort the finger print and cause a mismatch with the data that is already stored in the system. A false acceptance occurs where the BVR system erroneously accepts a person who is not registered in the system. This can lead to the problem of unauthorised voters, whereby unregistered persons are allowed to vote when they shouldn’t.

Finally, a concern that has been expressed by most people is the possible breakdown of technology at critical points of the electoral process or worse, hacking of the system. This is a particular challenge where the availability of power is intermittent and lack of technical know-how could result in problems that cannot easily be resolved. This latter challenge can be solved by ensuring staff are properly trained. There can also be alternative sources of power. Weather conditions can also be a source of havoc to the system. Nevertheless, in all cases, as experience elsewhere has shown, it is important to have contingency measures, which kick in once the system fails. If Zimbabwe is to improve, it must start by implementing it. The by-elections were a perfect opportunity to do pilot schemes and test out the technology, but ZEC failed to use them. If ZEC were serious about the BVR system, particularly after the Dabengwa lawsuit in which they were ordered by the High Court to perform their constitutional mandate, it would have mobilised support to test out the BVR system in the many by-elections it had to conduct.

To conclude on this point, while the BVR system has its weaknesses, it does offer an opportunity to have a new voters’ roll and that outcome far outweighs the concerns.

The limits of the BVR system

Nevertheless, I must conclude by also pointing out something that is so easy to miss as opposition parties and civil society focus on the BVR system. It is that while the BVR system might help fix the problem of the voters roll, it is not the complete panacea to the myriad of challenges that are traditionally associated with Zimbabwe’s elections. I have previously written on this subject in the past so I will not dwell too much upon it but the following problems which the BVR system cannot solve must be attended to:

Assisted voters: The 2013 elections were particularly plagued by the problem of too many assisted voters, an odd problem in a country that boasts of one of the highest rates of literacy in Africa. It was alleged that this problem was not because assisted voters were illiterate, but because they were commandeered by the ZANU PF system centred around traditional leaders in the rural areas. The facility of assisted voters was exploited to allow ZANU PF officials to monitor how voters were voting and ensure they voted for their party. The BVR system will help with the authentication of voters and other aspects, but it will not eliminate the problem of assisted voters. This needs attention.

Traditional leaders: Likewise, the role of traditional leaders, allegedly used as agents of ZANU PF to corral voters and ensure they vote for it cannot be solved by the BVR system. It is important to adopt strategies that would minimise the effect of traditional leaders and the impact of fear sown through years of political violence particularly in rural areas.

Vote-buying: ZANU PF has traditionally used state resources for its benefit during elections. This includes using state vehicles, money and other equipment to giving handouts to voters towards elections as ways of enticing or bribing them to vote for it. While ZANU PF was the first to complain of such strategies in the 1980 elections, it has since learnt to adopt the same for its own purposes. These bribes work for ZANU PF, as it presents itself to voters as a benevolent and caring party. This challenge will not be solved by the BVR system, which means other strategies will have to be adopted.

Media bias: Finally, gross bias of the state media will not be solved by the BVR system and yet this is a fundamental space in elections. It is easy to underestimate the impact of propaganda, particularly in the rural areas where the main source of news is by radio or word of mouth. The fact that ZANU PF controls state media and also controls much of the so-called private radio stations, the majority of which are owned or controlled by persons aligned to ZANU PF remains a severe handicap for the opposition. Unfortunately, the BVR system does not solve this problem.

Conclusion

There are of course more challenges which are beyond the purview of the BVR system. I highlight these few only to present the fact that there is a lot more apart from the BVR system that demands the attention of opposition parties and civil society. As ever, fear remains a critical factor and it will be exploited once again in the 2018 elections and not even the BVR system will solve that.

As I have pointed out in this article:

ZANU PF wants to avoid the BVR system principally because it does not want a new voters’ roll and prefers that ZEC reverts to the Mudede voters’ roll. Should that happen, the 2018 elections will deliver yet another sham election. There must be a new voters’ roll, by whatever means.

It is likely that ZEC will plead poverty and lack of time as justifications for resorting to the Mudede voters’ roll. ZEC has shown itself to be took weak and lacking in independence to resist ZANU PF’s pressure. Already, when government indicated the removal of the UNDP, ZEC did not even assert its independence to defend a process that had already begun. ZEC has shown no appetite to defend itself from ZANU PF, preferring quiet compliance.

The BVR system does have its weaknesses but it offers an opportunity for a new and cleaner voters roll (if handled with checks and balances).

Finally, while it is important to fight for the BVR system, it is also useful to note that it is not the total panacea to Zimbabwe’s electoral challenges. There are numerous problems which the BVR system cannot solve and they deserve the same amount of attention as is being given to the BVR system. As ever the deceptive party, ZANU PF has the tendency to drag the opposition parties into a false trail, while its people are focusing on the key electoral machinery. For that reason the opposition must remain vigilant, with focus groups dedicated to all aspects of the electoral process.

WaMagaisa

waMagaisa@gmail.com

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