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Big Saturday Read: ZEC threatens election legitimacy

July 14, 2018

 

 

The Zimbabwe Electoral Commission (ZEC) is the single most important institution in the electoral process. It is the fulcrum of our system of elections. It is both the manager and the referee of the elections system. If it falters, the electoral system falters too. If a cloud of doubt and suspicion hangs over ZEC, that cloud also affect the electoral system. The irony is that it has now become the single biggest threat to the election's legitimacy.

 

ZEC’s previous record in the management of elections is abysmal. But this year, it is plunging to new depths and hard as it may try to pretend that it didn’t happen, the postal voting scandal will haunt this election long after the last ballot is cast on 30 July.

 

There are different types of legitimacy. One of them is procedural legitimacy, which in our context, elections seek to confer upon the elected. It means that those who are elected have legitimacy if procedures for that election are followed. Our Constitution and Electoral Law together form the set of rules that must be followed in order to earn procedural legitimacy. There are a number of safeguards that have been established to ensure that there is procedural legitimacy. One of them is the establishment of an independent elections management body, which is ZEC. This is why those who run ZEC have an enormous responsibility in the affairs of the nation, one which they must never take lightly.

 

The match referee

 

To appreciate the role of ZEC and why its conduct is critical to the legitimacy of the election, let us consider the role of a referee in any competitive process. To be credible, competitive processes require an independent, fair and impartial referee. The referee must not permit its prejudices to affect its judgment. Competitors must have full confidence in the referee. In professional sports, the governing bodies select the referee. They try, as much as possible, to ensure that the umpire is someone who is acceptable to and enjoys the respect and confidence of the competitors.

 

Where two nations play a competitive match, the governing body of the sport would not normally select a referee from one of the competing nations. It does not matter if that the referee is the best in the world. Their mere presence on the pitch would not give an impression of fairness and impartiality. The referee must not only be fair, but he must be seen to be fair in that specific context.

 

The referee is also expected to conduct himself in a manner that demonstrates independence, fairness and impartiality as doing otherwise would undermine the competitors’ confidence in them. Where a referee shows bias in a match, such conduct is likely to spark protests from the team that feels prejudiced. The referee must show discretion, composure and take a measured approach, appreciating that tempers do flare up in any competitive process. The referee is the one who calms things down. He cautions those who break rules and protects those who are fouled.

 

In doing his work, the referee must not only be fair and impartial, he must also be competent. He must know the rules of the game and apply them fairly, according to the spirit of the game. There must be no selective application of the rules and justice. A foul by one team must also be regarded as a foul if committed by the other team. Rules must apply equally to all players because everyone is equal before the laws of the game.

 

Nowadays, there is appreciation in most sporting disciplines that a referee is not infallible and can make errors of judgment. Therefore, appeals are permitted during the period of the match. Tennis has had it for years, and in rugby they have used video evidence to assist the referee in deciding whether a try has been scored. In the current football World Cup, we have seen the VAR in action.  

 

All this is designed to promote fair play, which is at the heart of any competitive process. A referee’s failures could impair credibility of the outcome and where this is systematic, it negatively impacts legitimacy.

 

ZEC as elections referee

 

It is against this background that the conduct of the ZEC ought to be considered and assessed. ZEC is the elections referee in Zimbabwe and so far, it’s performance leaves much to be desired.

 

Admittedly, our law has limitations since it gives power to one of potential competitors to select the members who make up the referee. The Chairperson of ZEC is selected by the President. Commissioners are also ultimately appointed by the President although they are first vetted by Parliament. The current Chairperson was recently appointed by President Mnangagwa, in the wake of the coup that toppled former president, Robert Mugabe. Justice Makarau, the previous head of ZEC had resigned a few weeks after the coup, although her reasons were never made public. Maybe she jumped. But she could also have been pushed. On this, time will tell.

 

This fact that Chairperson and the Commissioners are appointed by someone who is likely to be a competitor in an election is a legal problem that can only be solved by amendments to the law. However, it is important to appreciate that our system is not unique. Many other countries use the same system and their elections referees perform their roles professionally. If anything, the circumstances of their appointment should be an incentive for the Chairperson and her team to show greater levels of discretion, transparency and fairness in their conduct.

 

Unfortunately, the manner in which some of ZEC commissioners have conducted themselves since their appointment has cemented impressions among competitors that ZEC is biased towards the appointing authority. This is not good for the credibility of the election process.

 

Part of the problem is that ZEC has utterly failed to manage its communications to competitors and members of the public. Those commissioners who have been vocal in their interactions with the public have been haughty, arrogant and, in some cases, dishonest. In one case, a commissioner claimed that there was no requirement to prepare a voters roll with photographs, yet there is a regulation from 2017, which ZEC would have helped prepare which states in clear terms that a voters’ roll must include photographs.

 

In another case, a commissioner accused members of the public of photo-shopping an image of the Chairperson of the Commission, in which she is seen wearing a scarf which is generally associated with the President, who is one of the competitors in the election. The commissioner’s accusation was false as it was shown to be a real picture uploaded by the designer of the scarf. While some were interested in the fact that the Chairperson had been pictured wearing a scarf associated with one of the competitors, which they thought suggested bias, ultimately the most critical issue was that in his bid to defend, a ZEC commissioner had lied to the public. He did not apologise or retract his statement despite the evidence.

 

In the latest case, when reports emerged that police at Ross Camp in Bulawayo were already voting under the auspices of postal voting, ZEC initially issued a terse statement vehemently refuting these reports, even calling them “hogwash” and “propaganda” in the state-run Herald newspaper.  That statement did not last long, with ZEC confirming that postal voting was underway. No effort was made to correct or apologise for the previous misstatements. Instead, the Herald newspaper simply took down the old story in which they had rubbished the reports and inserted a new one with the new narrative, pretending all was in order.

 

The next day ZEC spoke to the media and observers. Instead of admitting to the mess that had happened, they tried to be clever and pretend all was in order. It’s disingenuous and dishonest, taking Zimbabweans for granted. But this is consistent with a culture within the upper echelons of public service where no-one takes responsibility and no-one is used to account to the public. They would rather play clever and lie through their teeth.

 

Is ZEC really in charge?

 

However, ZEC’s conduct in that case also raised serious questions over its role in the electoral process. While ZEC was refuting reports of voting in Bulawayo, another constitutional body, the Zimbabwe Republic Police was issuing a totally different statement, contradicting ZEC. Is ZEC really in control of the electoral process? When the acting Chief Elections Officer and some commissioners denied and ridiculed reports of voting in Bulawayo, they seemed to be genuinely bemused by what was happening. They seemed to be in the dark, which raised questions as to whether there are parallel structures that are conducting a parallel process outside ZEC. If so, that would be a bigger problem.

 

If ZEC knew what was going on in Bulawayo and lied, the referee would be guilty of dishonesty. However, if ZEC did not know what was going on in Bulawayo, it would mean that the referee has no control of the electoral process. Someone else is running the electoral process. In both cases, ZEC would lose the confidence of the competitors and the public. But the latter case is far more dangerous because it means the elections are not being conducted by ZEC in accordance with the law.

 

Let us examine one specific issue: Just a day before the postal voting scandal, ZEC were delighted to announce that the printing of the presidential ballot paper had been completed. Nothing had been said regarding the parliamentary and council elections. In a postal vote, each voter gets a specific envelope that contains three ballots: presidential, parliamentary and council ballots, each in accordance with the constituency in which they are registered. ZEC had not announced that they had completed the parliamentary and council ballot papers. Why would ZEC be selectively transparent in announcing the presidential ballots but not the parliamentary and council ballots?  

 

In fact, according to the Chief Elections Officer, they were still processing the postal ballots, which means according to ZEC, police could not have started voting at that point as they could not have had the relevant materials. This then raises a key question: who sent the ballot papers to Bulawayo if the ZEC CEO and commissioners did not know? If they knew, why did the Chief Elections Officer lie so brazenly to the nation? There is reasonable cause to believe that ZEC were totally at sea regarding the ballot papers and someone is either sleeping on the job or there are others who are running this election and ZEC is just a front.

 

While ZEC is right that postal voting cannot ordinarily be observed or monitored, this applies where postal voting takes place in the normal way. This is where an election management body sends ballot papers to a voter by post and the voter completes them in private and sends them back by post. The manner in which postal voting has been administered in the case of members of the disciplined forces is different. The reason why police officers raised the hue and cry is that they believed the secrecy of their vote was under threat. Their superiors were administering the process and interfering with voting secrecy.

 

The reason is that the handling of postal ballots for soldiers and police officers effectively turns police stations and military barracks into de facto polling stations. This is what happened in Bulawayo and caused problems, hence necessitating calls for observation and monitoring to ensure the process was not abused. ZEC cannot pretend that this is not happening.

 

An elections management body does not wash its hands and claim that it has no role in monitoring postal voting when concerns have been raised. It is grossly irresponsible to conclude all is well on the mere say so of the police authority without carrying out an investigation. A competent and honest elections management body would have immediately launched an investigation and taken corrective and preventive measures against abuse of postal voting.  

 

Soiled reputation

 

The problem is that ZEC already has a poor history of running elections and is now regarded as institutionally biased towards the ruling party, ZANU PF. In 2008, ZEC certified as free and fair a violent and farcical election which was condemned by the rest of the world. Commissioners like Joyce Kazembe, who was a member of that ZEC and its predecessor the Electoral Supervisory Commission, is still a member of the current ZEC.

 

In 2013, ZEC could not redeem itself, as it failed to avail the electronic copy of the voters roll to competing parties. There is, therefore, already a heavy cloud of suspicion that hangs over ZEC as an institution. In these circumstances, it would be in ZEC’s best interests to hold itself out as a fair and impartial body and transparency would be key in this regard. Yet it has stridently resisted calls for transparency, taking a pedantic and selective approach to the law which is inaccurate and flawed.

    

For example, ZEC is required by law to provide the voters roll that is used in elections. It took a lot of clamouring from the opposition and civil society to get ZEC to comply with this requirement and even so, ZEC took a selective approach, refusing to publish parts of the voters roll. ZEC selectively cited privacy provisions, ignoring the fact that the voters roll is by law a public document which by its nature contains personal data.

 

Furthermore, ZEC could have applied its discretion in favour of more transparency in the printing of ballot papers. Instead, it fought hard to keep the process opaque, further cementing suspicions that there is something untoward over the printing of these crucial election materials. It is this aversion to transparency that has dented competitors’ confidence in ZEC as an electoral authority. This is why the opposition does not believe ZEC’s statements regarding the printing of ballot papers. ZEC could easily have dispelled these fears by involving all parties in the process. What’s there to lose? If anything, there’s everything to gain from including those who express doubts about it.

 

ZEC has wide powers

 

ZEC’s defence is predicated on the law but it actually limits itself conveniently to avoid performing its role more effectively. It always argues that whatever it does is in accordance with the law and when asked to do certain things, it avers that it cannot act outside its legal powers. The truth is that ZEC has a wide array of powers and discretion which it can use to enhance transparency and fairness. ZEC only has to look to section 342(2) of the Constitution which states that “All institutions established by this Constitution have all powers necessary for them to fulfil their objectives and exercise their functions”. This provision is self-explanatory. A lot of the things that ZEC is being asked to fall within the power conferred by this provision.

 

If that isn’t enough, there is also section 342(3) of the Constitution, which states that any powers or rights that are reasonably necessary or incidental to the exercise of a constitutional power are impliedly conferred as well. This means ZEC, like all other constitutional bodies, has implied powers to do anything that is reasonably necessary or incidental to the exercise of their main functions. Therefore, all that is being asked of ZEC in this election is not beyond its powers. Regrettably, either deliberately or out of ignorance, ZEC has refrained from using the wide powers given in section 342. It is not, however, a good excuse to not do these things that have been asked of them on the ground that they lack the legal powers, because, as shown here, they do have wide powers which they can use to enhance the credibility and legitimacy of the election.

 

Impact on legitimacy

 

An unintended consequence of ZEC’s shortcomings is that it has serious impact on the pursuit of electoral legitimacy. As we have stated before in these pages, procedural legitimacy depends on following the rules that are set for that process of earning legitimacy. In this case, procedural legitimacy comes from following electoral rules. The referee, ZEC is at the heart of earning procedural legitimacy. From the voters roll, to ballot papers and postal voting, ZEC has been found wanting. The contradictory communications, dishonesty, arrogance and apparent bias exhibited by some of the Commissioners does great damage to procedural legitimacy. The end result is that ZEC has become a serious threat to procedural legitimacy. This is not in any of the candidate’s interests.

 

Indeed, Mnangagwa is desperate for an election which is certified as legitimate. The conduct of ZEC is severely undermining this goal. People around Mnangagwa are concerned that the behaviour of ZEC and its commissioners is hurting the credibility of the election and claims to legitimacy. Could it be deliberate that some commissioners are playing Bhora Musango, doing outrageous things to deny Mnangagwa the legitimacy he needs should he win? Or are they just overzealous commissioners who in their bid to please, have gone overboard and are now damaging the candidate they wish to serve?

 

Observers’ view on postal voting

 

Election observers cannot make pronouncements over events as they happen. They will wait until after the elections. When they look back at the postal voting scandal, it might seem like a small drop in the ocean, affecting as it does just 7200 potential votes in an electorate of more than 5 million. They might conclude, on the basis of numbers, that whatever irregularities there were in postal voting was not enough to change the result. That might make sense from a quantitative analytic perspective.

 

However, this approach would miss the point. The point about the postal voting scandal is how it has implicated ZEC in regard to competence, trust and confidence in its role as an electoral authority. It has shown that ZEC is untrustworthy, unreliable and that it is probably not in complete charge of the electoral process. All along the ZEC Chairperson has been telling people that there were 7200 postal voting applications. But today, the Chief Elections Officer has changed the number and is saying there are about 7600 applications! Which is which? If ZEC has been caught lying about postal voting, what else has it been misrepresenting to the public? It has shown, above all, that ZEC cannot be trusted and has failed to run a credible election process. 

 

Conclusion

 

ZEC is supposed to be the detached, impartial and objective umpire. It is is expected to execute its mandate without fear or favour. It must not only be fair, rather, it must be seen to be fair. Transparency is key. Regrettably, ZEC has so far failed to handle its enormous obligation as an impartial referee. There is a broad perception of bias, which owes much to history but is also cemented by current indiscretions. The irony is that its conduct is now hurting the very person whom it is accused of favouring.

 

The things that ZEC has done wrong have been very bad for the institution and the elections. The postal voting scandal was worse than it is prepared to admit. It is bad enough when you lie to other people. But when you begin to believe your own lies, the problem is far worse. Sadly, ZEC and some of its more vocal commissioners seem to have reached this stage, where they have begun to believe their own lies. Long after this is done, the epitaph on certain reputations may read: Here lie the reputations of men and women who, in the nation’s greatest hour of need, conspired to fail Zimbabwe.  

 

WaMagaisa

 

wamagaisa@gmail.com    

 

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