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Big Saturday Read: Points of observation – a manual for election observers

June 16, 2018

 

For the first time since the 2002 presidential elections, Zimbabwe has extended an open invitation to a wide range of international election observers. Western observers have not been welcome to observe Zimbabwean elections after they passed negative judgment on parliamentary and presidential elections in 2000 and 2002 respectively. International observers who were invited after 2002 were from “friendly” countries, such as China, Russia, and the Caribbean. In 2013, appeals to have a broader range of international observers were flatly rejected by the Mugabe regime.

 

So what has changed?

 

The removal of Robert Mugabe last November opened a new chapter in international relations, with the new administration led by Emmerson Mnangagwa making rapprochement with the West one of its top foreign policy priorities. This is a marked change from the antagonism of the past. The invitation to Western observers is a significant policy-shift which falls squarely within this framework of seeking renewed relationships with the powerful Western economies. Zimbabwe has already formally applied to be readmitted into the Commonwealth. Mugabe had left the Commonwealth in a huff, in response to the body’s criticism of Zimbabwean elections. For the first time since that acrimonious divorce, the Commonwealth will be returning to observe elections in Zimbabwe.

 

The return of international observers means, in theory, there will be more scrutiny of elections. This should provide an incentive for the regime to behave and to conduct an election that would pass the free and fair test. The underlying assumption is that the Mnangagwa administration cares for legitimacy and will, therefore, try to fulfil the conditions necessary to ensure the legitimacy of elections. Of course it does not follow that the desire to be readmitted into the community of nations will be matched by a real commitment to hold free and fair elections. Indeed, the administration may think it is enough to put up a show that suggests compliance when it reality little would have changed.

 

Search for legitimacy

 

Elections are part of the process that is necessary to earn procedural legitimacy. They must be conducted in accordance with set rules and standards. These rules and standards are found both at domestic and international levels. Election observers play a critical role because they are part of the certification process of determining whether elections have been conducted in accordance with those rules and standards, that is, whether elections are free and fair. A positive report by election observers will go a long way to support the procedural legitimacy. Conversely, a negative report will be a huge blow for procedural legitimacy.

 

The Mugabe regime suffered weak procedural legitimacy partly because since 2000 it never received positive election reports from international observers who, in any event, were excluded from the observation process. Mnangagwa hopes the invitation of international observers is one of the key steps in the search for the elusive procedural legitimacy.

 

Role of regional and international standards 

 

One point to note though is that it is not very hard to earn procedural legitimacy, which is largely guided by formalism. Procedural legitimacy on its own is not a measure of democracy. The test is quite simply whether set procedures have been followed. It applies to a monarchy just as it does to a democracy. Therefore, a hereditary king or chief has procedural legitimacy if the rules of hereditary succession are followed, no matter how unfair they are. For example, they may exclude women from the line of succession, thereby violating widely accepted gender equality norms. It does not matter that there is no democracy in such a process. Likewise, the head of a religious organization who is selected by a small group of people has legitimacy as long as those agreed procedures are followed.

 

In a democracy, procedural legitimacy is earned through an election. The government has to be elected in accordance with the procedures set out in the Electoral Law. The quality of those rules is not an issue. This is why some dictators religiously hold elections. They make rules, unfair rules, which they faithfully follow to the letter and afterwards claim to have been duly elected in accordance with the law. When they are challenged that their rules are unfair, their response is that they are a sovereign state with the power to make their own laws which they followed. Their aim is to claim procedural legitimacy. This is why, for example, when asked to conduct elections fairly, electoral institutions such as ZEC respond by saying that they are simply following the law and they have no power to change it.

 

Beyond formalism 

 

This is why procedural legitimacy on its own in the formalistic sense is not enough. It has to be qualified by a consideration of the substantive quality of those procedures. Indeed, this is why regional and international standards and rules have been developed over the years and are becoming increasingly influential in domestic elections. They are a response to the fact that domestic standards and rules on their own are inadequate as a measure of legitimacy. They may not be legally binding, but they have persuasive force.

 

This is why observers must not only look at a state’s adherence to domestic laws but also substantive compliance with the letter and spirit of regional and international standards developed by the AU and SADC. These regional and international standards infuse qualities of fairness and justice which may be missing from domestic laws. Observers are therefore encouraged to measure the quality of Zimbabwe’s elections not only against domestic laws but also in respect of regional and international instruments governing elections.     

    

Beware of tokenism

 

As already stated, the Mnangagwa administration is desperate to earn legitimacy through the forthcoming election. Electoral rules can no longer be changed because the constitution prohibits any changes from taking effect for the election once the election date has been called. The election date has been proclaimed so all parties are stuck with existing rules, however unfair they might be. If the authorities stick to those laws and apply them to the letter, they might satisfy procedural legitimacy. But what if they don’t meet regional and international standards? Observers are likely to defer to the domestic rules citing national sovereignty.

 

But even here, observers must watch compliance very closely. There is a danger of tokenism. Tokenism is where the state and electoral authorities make a performance rather than substantive compliance with the rules. The aim of this formal, dry process of compliance would simply be to tick the boxes. They create a façade of compliance, whereby they appear to be complying with the rules when in fact the status quo remains. A good example is in relation to the requirement for fair and impartial coverage by state media, which is a constitutional duty. The ZBC might cover a single event by the opposition, while covering 10 by the ruling party. Likewise, the Herald might cover the opposition parties, but only in negative terms while covering the ruling party in positive terms at all times.

 

They will tick the boxes that they are giving the opposition space and air-time, but substantively, it is actually unfair because of the content and quality of the coverage. Observers must be adept at picking out token appearances by the opposition in State media and the unfairness which is evident in the content and quality of the coverage.

 

Voters roll and turned away voters

 

The voters roll is a critical instrument in the electoral process. Zimbabwe will be using a new voters roll after the Biometric Voter Registration process under which voters were registered since 2017. This process has been long and controversial. It took too long to implement, leaving little time between registration and the election. The process of preparing the voters roll has been hurried and there are concerns that the final voters roll may contain too many errors.

 

ZEC has stated that interested parties are free to audit the voters rolls and to submit recommendations. However, this means little. It may be recommendations for future elections. ZEC does not state what it will do with information showing the voters roll has problems. How ZEC deals with any information showing errors and irregularities on the voters roll is key to the legitimacy of the election process. It undermines the legitimacy of the election of the voters roll is not a true and accurate representation of the electorate and if errors are not rectified.

 

The risk here is that it may lead to disenfranchisement if voters are turned away on account of problems with the voters roll. This could be for one of a number of reasons: the voter’s name may be missing from the final voters roll, the voter’s name may be on the voters roll but some details may be erroneous, such as their gender, date of birth or ID number. Third, a voter may find that their name is registered in an area that is different and far away from where they reside or believed they would be voting.

 

The risk of voters being turned away is not fanciful. It was a big problem in the 2013 election, as noted by election observers. Observers must be vigilant to this potential problem, especially with a new, hurriedly-prepared voters roll which has not been subjected to a thorough audit. If there is a pattern where large numbers of voters are turned away in particular constituencies, this could signal a serious problem that could undermine the legitimacy of the process. The opposition has previously complained that the pattern of turned away voters was most defined in their strongholds in urban areas.

 

Provision of the voters roll

 

At the time of writing this BSR, two weeks after the closure of the voters roll, ZEC had not yet availed the voters roll to parties, candidates and the public as required by law. ZEC has actually appealed a court order won by ERC, an elections organization, requiring the elections 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 30 July. 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 election process.

 

However, even more concerning are the misleading statements coming ZEC. The chairperson of ZEC announced a day after the Nomination Court sat on 14 June that the voters’ rolls were now available. The announcement brought a he 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 on 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 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 failure to provide it as required by law and the misleading statements from its senior officials does not inspire confidence in the election 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 3 weeks before polling day. This date is 9 July 2018. 

 

Traditional leaders and the 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.

 

Assisted voters

 

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 shouldn’t 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 behavior 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 and 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 minimize 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.  

 

Ballot papers

 

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 the 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 ten percent of the number of registered voters, which is far more reasonable that the 2 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.  

 

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. 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.

 

Misuse of voter registration slips

 

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 election 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’s 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 a 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 if 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 ERC, a civil society organization 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 finalized 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 organization 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 Charumbira, president of the chiefs council was sued by 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 7 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 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 on 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 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. 

 

What is the measure of a free, fair and credible election?

 

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. 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 incentivize 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.

 

WaMagaisa

 

wamagaisa@me.com       

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