“The silly season is out in full force,” said the ZEC Chairperson, Justice Priscilla Chigumba as she made an appearance on Ruvheneko Parirenyatwa’s radio show on Monday.
It is a cliché that refers to a period of frivolous and petty behaviour. The history of Zimbabwean elections, however, suggests that they are from frivolous affairs. For survivors and victims of past electoral violence, elections are a matter of life and death. Justice Chigumba may have commented in jest, but this election is a serious matter for the long-suffering citizens. And the issues they are raising are far from petty as some at the electoral body have described them in typically disparaging fashion.
Justice Chigumba seems to have found the transition from the bench to the hot-seat at the election management body rather difficult. She forgets that right now, her judicial robes and wig are in the wardrobe, and she is in a very different role as the referee of an elections body. During the interview, she made reference to her oath of judicial office and to judicial officers and lawyers-politicians whom she referred to, in a warning tone, as officers of the court. It's not fair on them to have to answer to her as a judge when the rest of the candidates who are not lawyers carry no such obligations.
More importantly, Justice Chigumba is obviously deeply aggrieved by the name-calling she has been subjected to in recent weeks. On that, she has my great empathy and understanding. She has every right to feel offended. It is not good behaviour to reduce our politics to name-calling. The H-word, as she called it, does nothing to advance the cause that democrats are fighting for. People must be free to critique Justice Chigumba’s performance as an administrator, but it must be fair, reasonable and not because she is a woman. Her behaviour only becomes relevant if it affects or could affect the performance of her mandate but that standard must also apply to her male counterparts. The path towards gender equality is still filled with many obstacles and we have to have to do everything necessary to get rid of gender stereotyping.
ZEC’s biggest challenge is its abysmal public relations and this interview did little to help recover lost ground. As the principal voice of ZEC, Justice Chigumba had an opportunity to mend broken fences of public trust and confidence. Yet the tone carried a distinct strain of arrogance and nonchalance which has alienated many in the opposition.
“It’s water under the bridge,” she said as a matter of fact when asked about the contentious presidential ballot paper, which is arguably illegal. It was not what she said but how it was presented and how it came out. It didn’t sound well. Even as a caller and her interviewer tried to alert her to the problem, she simply resorted to defensive mode.
It is this failure to read the general sentiment and to tailor responses in a mature and respectful manner that is at the heart of institutional weakness at ZEC. They don’t know how to communicate with a pensive and highly suspicious public. It's an area of weakness that can improve with training, but meanwhile common sense will have to do.
Illegality of the ballot paper design
One distinctive feature of the present ZEC is their religious insistence on legal compliance. Their standard response is that whatever they do is according to the law. This formalistic and pedantic approach the law has led to a certain rigidity about ZEC’s approach, which limits it from using discretion in the interests of performing its core mandate. It would be fair if ZEC followed the law at all times. The problem is Justice Chigumba’s ZEC takes a very selective approach to legal compliance.
In this regard, one old issue is ZEC’s approach to the voters’ roll, where it has been selective in what it has provided, citing privacy provisions to withhold other aspects such as photographs. The legal basis for that view is extremely suspect. Another issue, which was discussed in the interview and concerns us here, is the design of the ballot paper.
There are legal rules in the Electoral Law for designing a ballot paper. Section 57 of the Electoral Act provides that the ballot paper shall be in the prescribed form. This prescribed form is Form V.10 as provided for in section 3(10) of the Electoral Regulations, 2005. Section 3(11) of the same regulations specifies the design of the ballot paper so that “the number of horizontal segments shall equate to the number of candidates nominated for election …”
The critical point is that the design of the ballot paper is strictly guided by law. ZEC did not have the liberty to make a new design which is different from Form V. 10 unless it changed the Electoral Regulations. But as everyone now knows, changes to rules after the proclamation of the election date are now prohibited. So ZEC is stuck with the 2005 regulations which set Form V.10 as the design for the ballot paper.
When asked about it by Ruvheneko, Justice Chigumba did not have a clear answer save for referring to advice from designers and the issue of cost. Asked to name the cost of the presidnetial ballot paper, the head of ZEC had no clue. You would expect an administrator who uses cost as a reason for a decision to have figures on her finger-tips. But Justice Chigumba didn't even have an estimate.
More critically, she completely avoided the Form V.10 issue. Either she did not know about it or if she did, she simply had no answer. Perhaps Ruvheneko should have placed a copy of the Electoral Regulations before the ZEC Chairperson and asked her to explain why they had overlooked Form V. 10 in designing the ballot paper. Justice Chigumba cannot hide behind advice from designers because Parliament has already provided the design that the ballot paper must take.
The net result is that ZEC’s approach to the ballot paper design is a significant departure from its usual pedantic approach to legal compliance, which smacks of double-standards. The law is clear on how the ballot paper must be designed and ZEC has chosen not to follow it. As things stand, there is arguably ample ground to challenge the legality of ZEC’s ballot paper.
Why did ZEC not use Form V.10 to the letter? This is where critics think ZEC designed the ballot paper in order to place the incumbent Emmerson Mnangagwa at the top of the second column rather than have him buried in the middle of a 23-candidate list of presidential candidates on account of an unfavourable alphabetical order.
The controversy over postal voting was an opportunity to demonstrate humility, remorse and to make corrections. ZEC has made contradictory statements from day one. As reported by The Herald, ZEC said one thing, while the ZRP said another. ZEC was forced into a huge climb-down a few hours later, realising they were wrong about postal voting which had already started. Despite efforts to remove and change the story, the damage had already been done. Instead of admitting to errors, the ZEC Chairperson went on the defensive and put blame on the media.
This is taking people for granted. The public is not stupid. They see when someone is trying to pull wool over their eyes. They deserve far more respect than ZEC is giving them.
Besides, the explanations did not add up. At one point Justice Chigumba said the printing of ballot papers was not yet complete, since council ballots were still to be printed. This did not sit well with the fact that postal voting had already started in Bulawayo and had since spread to other areas. How did they do postal voting while some ballot papers are still being printed?
Quizzed on the issue by a caller, Justice Chigumba tried to wriggle out of the sticky moment by saying they were printing the ballot papers by province and they had finished the Bulawayo ballots. But this does not answer how postal voting was taking place elsewhere when the ballots were still being printed.
Besides, an interpretation of section 75(1)(d) of the Electoral Law shows that Monday 16 July 2018 was the last possible date for ZEC to receive the postal ballots. Yet as at that date, hours after the scheduled time of receiving postal ballots, the ZEC Chairperson was telling the world that ballot papers were still being printed. How then had postal voting taken place when ballots were still being printed? Is there a separate stash of ballot papers elsewhere? Or has ZEC disenfranchised thousands of postal voters by its inefficiency? That’s because those postal votes which have not complied with section 75(1)(d) would not be invalid.
Investigating suspicious activity
Justice Chigumba insisted that ZEC could not act on any issue unless a formal complaint was raised. But that’s an abdication of duty by an elections supervisor. ZEC can commence its own investigations without prompting if there is suspicion of irregularities, which there was in the Bulawayo case where the alarm had been raised. ZEC should know that the reason why police officers cannot identify themselves is that they fear for their jobs. A responsible election management body could have taken action mero motu (on its own and without request) to protect the integrity of the election.
It is legally inaccurate to say ZEC has no mandate to investigate as averred by Justice Chigumba during the interview. Of course, as the elections supervisor, ZEC can investigate election irregularities. As argued before in these pages, section 342 of the Constitution confers wide powers upon constitutional bodies, including ZEC, to do whatever is necessary to fulfil their mandate. ZEC has the mandate to run free, fair and credible elections and if it must investigate irregularities to ensure fulfilment of that mandate, it would be well within its powers to do so.
In any event, having denied the power to investigate on postal voting, in the same interview Justice Chigumba went on to claim ZEC and the Ministry of ICT were jointly investigating the mass messages sent to voters by ZANU PF and a website which appears to use ZEC data but is hosted in the UK. These apparent inconsistencies do not help ZEC’s image.
Role of the military
One important point that she did clarify and which needs careful watching is over the military’s role in the transportation of voting materials. The military will not be involved, she firmly declared. If this is correct, it kills concerns over military involvement which flared up after the military’s press conference two weeks ago during which Colonel Mugwisi suggested that the military would be involved if ZEC asked for help. Justice Chigumba has declared that the military will not be involved and the hope is that ZEC will live up to its word.
It puts ZEC on a collision course with the military which two weeks ago seemed to have expectations of being asked to help. If, after this declaration, the military ends up being involved, it will knock public confidence in ZEC and the electoral process. She said Fidelity Printers will transport the ballot papers but does this printing company have a transport and logistics department for this exercise? Are they not going to end up hiring the military?
A question of credibility
The problem for ZEC is one of credibility. She did concede that people do not trust ZEC and that the body needs to win that trust. The irony, though, is that this interview which was supposed to help in rebuilding that trust did little to win ZEC any favours. There was the same typical arrogance and over-defensiveness on an occasion when a little bit of humility and acknowledgement of areas of improvement would have bought some understanding.
A typical case was when she was asked about the plain lies told by one of her commissioners over a controversial picture in which she wore a scarf associated with Mnangagwa, Justice Chigumba’s answer was to defend him. A simple acknowledgement that her fellow commissioner had spoken without consulting and erred could have gone a long way to winning back some understanding and trust.
However, typical of Zimbabwean public officers who are averse to taking responsibility, she went into an ultra-defensive mode and decided to defend the mediocrity of her subordinate. He had lied in a misguided effort to defend her. Such behaviour is not to be defended if a public body wants to regain trust and confidence.
The interview was eagerly anticipated by Zimbabweans across the world. It was ZEC'S great opportunity for redemption. But ZEC squandered it . To her credit, Ruvheneko was robust in her inquisition. Some follow-up questions would have helped but overall, it was a strong performance which left the Chairperson trying desperately to duck and dive in an open field.
I don’t care about being liked. I only care about doing the right thing, the ZEC Chairperson said during the interview.
The trouble right now, is that there are lots of people who are not persuaded that she and ZEC are doing the right thing.