Conditions for free & fair elections

Tapera Kapuya

28 June 2004

Conditions Necessary for a Free and Fair Election in Zimbabwe

The objective reality in Zimbabwe does not meet these minimum conditions for any election to be considered free and fair. For elections to be said to be free and fair, the pre-election, election, and post election periods must be characterized by the opening up of democratic space, respect of human rights, and the protection of fundamental civil and political rights of all citizens.

A ‘free’ electoral process is one where fundamental human rights and freedoms are respected. These include:

• Freedom of speech and expression by electors, parties, candidates and the media
• Freedom of association; that is, freedom to form organizations such as political parties and NGOs
• Freedom of assembly, to hold political rallies and to campaign
• Freedom of access to and by electors to transmit and receive political and electoral messages
• Freedom to register as an elector, a party or a candidate
• Freedom from violence, intimidation or coercion
• Freedom of access to the polls by electors, party agents and accredited observers
• Freedom to exercise the franchise in secret and
• Freedom to question, challenge and register complains or objections without negative repercussions.

A ‘fair’ electoral process is one where the ‘playing field’ is reasonably level and accessible to all electors, parties and candidates, and includes:

• An independent, non partisan electoral organization to administer the process
• Guaranteed rights and protection through the constitution and electoral legislation and regulations
• Equitable representation of electors provided through the legislation
• Clearly defined universal suffrage and secrecy of the vote
• Equitable and balanced reporting in the media, and equal access to public media
• Equitable opportunity for the electorate to receive political and voter information
• Equitable treatment of electors, candidates and parties by election officials, the government, police, military and the judiciary
• Open and transparent ballot counting process, and
• Election process not disrupted by violence, intimidation or coercion.

Background

The crisis in Zimbabwe continues to deteriorate as the democratic, political and economic instruments of the country are further weakened. In recent years, the Government of Zimbabwe has introduced a range of legislation which is effectively impeding a normal democratic process while non-legislative moves have sought to politicise various state organs to secure power in the hands of the ruling Zanu-PF party. Government actions, carried out under the guise of maintaining national security or regularising the law code, have had considerable political implications favouring the ruling party and severely discriminating against opposition parties and civil society. Pieces of legislation to restrict the freedom of assembly, curtail the media, allow for Government interference in the election process and provide additional powers to the President have been promulgated.

The measures taken by the Government are cumulatively eroding the democratic process in and, if the situation is not corrected, will negate any possibility of free and fair parliamentary elections which are planned for early 2005. The lack of freedom, fairness and transparency at the polls on the one hand, and a low opposition turn-out due to widespread intimidation on the other, could lead to the ruling party easily securing a further five years in power. Furthermore, it is possible that the ruling party could acquire the two-thirds majority in parliament necessary to change the constitution at will.

Since 2000, the Zimbabwean population has faced economic collapse and widespread food shortages, with six million people on the brink of famine. The Zimbabwean economy has been in recession for five years with almost 75% of the population unemployment and living in abject poverty. While there has been a considerable humanitarian response from the international community, forecasts for the harvest currently under way (April/May) suggest that food production will reach only 50 percent of that required for a population. Meanwhile, the Government has not invited the United Nations to respond to 2004/05 food shortages stating that the government will be in a position to respond to food shortages, if any. This raises speculation that the Government is planning to significantly increase its existing practice of using food as a political instrument.

The government has effectively manipulated several state instruments into political tools to create obstacles to the democratic process and support their continuation in power.

The Legislative Framework

In recent years the Government of Zimbabwe has promulgated several pieces of all purposive legislation which enhances the powers of the Government. These laws are extremely repressive and draconian, and are in contravention the country’s constitution and democratic practice. These include: The Public Order and Security Act (POSA); The Access to Information and Protection of Privacy Act (AIPPA); The Broadcasting Services Act; The Electoral Act; and The Presidential Powers Act. These body of legislation, while ostensibly aimed at regularising various state sectors, provide considerable discretionary powers to Ministers and Government officials. Most recently, there is a bill being discussed focused on churches and NGOs called the Non-Governmental Organisations (NGO) and Churches Bill. 

1.1 The Public Order and Security Act (POSA)

The Act forbids public gatherings unless seven days’ notice is given to the police. It empowers the police to kill, if necessary, in the process of suppressing any public gathering or meeting where police clearance has not been provided. It provides the police with powers to prohibit demonstrations or public meetings in an area for up to three months, if they believe this is necessary. For certain offences under the Act, the period for which the police may detain a person before bringing him or her to court can be extended from two to seven days.

The Act also contains a provision to ban the publication or communication of statements which are deemed offensive to the President. The Act effectively bans any assembly without police permission, which is rarely granted to civil society, labour unions or opposition parties, and criminalizes the organising of a public gathering without such permission. The Act is wide-ranging and has been labelled by some lawyers as the most repressive piece of legislation in the country’s history.  Coupled with the politicisation of the police, which has systematically taken place in recent years, the Act provides the police with sweeping powers to arrest and detain at will anybody who they suspect is supportive of a political discourse other than the ruling party or their governing policies.

The Act further requires people to move with their National Identity cards on their person. This provision has been abused by ZANU-PF militias who have confiscated the identity cards of individuals suspected of being members of the opposition, thereby disenabling them to vote.

  1.2 The Access to Information and Protection of Privacy Act (AIPPA)

This Act came in place in March 2002 and was heavily criticised by the Parliamentary legal committee as being unconstitutional. Since its promulgation, over 79 arrests of journalist have been made arrested and the country’s only private daily press, The Daily News, has been closed. Recent media reports indicate that the circulation of regional newspapers will be clamped.

The Act provides for the establishment of a Media and Information Commission (MIC) which regulates the operations of the media and deals with registration of media houses, accreditation of journalists, monitoring of the content of the media and investigates and resolves complaints against the media. The Minister of State for Information and Publicity (in the President’s Office) appoints between two and six commissioners while journalists’ associations are allowed to nominate three representatives to the commission. The Act also introduces a concept of journalistic privilege and makes its abuse a criminal offence, as it does the “abuse of freedom of expression.”

The Act requires all newsrooms to only employ those journalists meeting the ‘qualifications’ prescribed by the Minister. The MIC is entitled to demand information of business plans and finances for mass media services applying for registration, and if any of this information is found to be ‘false’ or changes over time, the Commission may deregister the media house and all equipment can be forfeited to the state. Section 91 of the Act accords the Minister of State regulatory powers to prescribe the form and manner to be followed in applying for registration and accreditation, thereby placing in the hands of the Minister the responsibility of deciding who is allowed to publish and what to publish.

The free flow of information in Zimbabwe depends heavily on the decisions of the MIC, which to date have favoured only pro-government publications. The MIC has been absolute in its intolerance of media houses which represent the views of groups politically not aligned to the ruling party.

1.3 The Broadcasting Services Act

The Act provides the Minister of Information with powers to appoint the members of the BAZ who act as an advisory board to the Minister’s Department. The licensing of broadcast services and systems is vested in the Minister who is entitled to attach conditions to a licence which can be modified at any time. A licence to only one signal carrier company and only one national radio or television broadcasting service other than the ZBC can be provided. Commercial and community broadcasting licences are only valid for two years and one year respectively. Community stations are not allowed to carry political content in their programmes.

National and international media organisations, along with a Parliamentary Legal Committee report, have stated that the Act is inconsistent with Section 20 of the Constitution, which guarantees freedom of expression. The Act provides for extensive involvement by the Government in programme content, in effect providing political control over the management and the content of all broadcasters in Zimbabwe. Breaches of the Act incur extremely high penalties, dramatically increasing the risks for potential investors, above a viable threshold. Although the Act officially ends the monopoly of ZBC, it makes the establishment of an independent broadcasting service practically impossible.

The opposition and civil society are totally restricted from accessing national TV and radio. The government has abused its monopoly of this media to churn out, unrestricted, its propaganda. The lack of access to public media by the opposition gives a clearly unfair advantage to the incumbent and limits the electorate from having access to alternative view points to enable it make informed voting decisions.

  1.4 The Electoral Act

At the end of 2001, the Government announced its intention to amend the Electoral Act, with the new legislation passing hastily through parliament in January and signed into law in February 2002, weeks before the presidential election.

Provisions of the Act/Statutory Instrument include:

- the requirement that all voters (except the uniformed forces and the diplomatic corps) vote in their constituencies, thus disenfranchising millions of Zimbabweans who are out side the country;
- the Electoral Supervisory Commission (ESC) is confined to recruiting only public service personnel to act as election officials and monitors;
- the Registrar-General is allowed to make ‘corrections’ to names of the voters roll after registration without referring the case to a magistrate, as was originally the case;
- foreign funding for voter education is banned, except where the funds are channelled through the ESC;
- only the ESC is allowed to provide voter education.

These provisions provide for extensive control over the election process by those in power and prevents neutral and independent sensitisation of the public. By providing the Registrar-General full authority over the voters role, without right of appeal to the judiciary, the potential for manipulation of the role is considerably increased.

1.5 The Presidential Powers Act (PPA)

The PPA contributes to the centralisation of powers in the hands of the President without accountability to constitution through the courts. The PPA allows the President of Zimbabwe to make regulations in circumstances when it appears to the President that:

- a situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and
- the situation cannot adequately be dealt with in terms of any other law; and because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation

In practice the PPA has been used by the President to appropriate to himself the powers of the legislature while at the same time removing the jurisdiction of the court to grant bail. For example, using Statutory Instrument I37\04 the President legislated that, even where there is no prima facie case against an accused person in certain cases, including charges under POSA, a court can order her/his detention despite there being no such case, and a suspect cannot be granted bail for seven days from the date when the detention is so ordered. The President further legislated that where there is a prima facie case, the court shall order that the suspect be held in custody for a period of 21 days and cannot be granted bail for 14 days after the detention is ordered. In other cases the President has used these powers to provide for regulations governing elections in which he or his party is a contestant, a few hours before the election.

Non-Governmental Organisations (NGO) and Churches Bill

This bill has just been introducing in Parliament. Its details are not very clear but public pronouncements by the Minister of Home Affairs, Paul Mangwana, suggest that the Bill proposes a code of conduct for all churches involved in humanitarian aid and the monitoring of NGOs, especially those involved in food aid, "will ensure they do not mix humanitarian work with politics".
The Minister Paul says “the Bill was aimed at dealing with churches and NGOs that were inciting people to rebel against government”. How this law will work remains unclear but it all points at how the government is trying to squeeze what was left, if any, of the democratic islands in the country.

Rule of Law and the undermining of the Judiciary

Since 2000, the Executive has systematically and persistently manipulated the Judiciary. The perception is that the President has now packed the Superior Courts with compliant judges, a situation which has not only negatively affected due legal process but has seriously undermined public confidence in the justice system. 

A significant number of senior judges have been granted farms under the land resettlement scheme at the will of the government, which is equally entitled to withdraw the gift without compensation. The government has consistently disobeyed court orders which they viewed as inconsistent with their policy, such as in the case of The Daily News where police were ordered to ensure publication did not take place, in defiance of a court order allowing the paper to operate. There are innumerable cases where orders compelling the state or individuals linked to the ruling party have been ignored.

The Government has actively de-professionalised the police and army appointing individuals known for their loyalty to the ruling party, while they have established and politicised a youth militia brigade which acts with impunity and facilitates extensive control structures throughout the country. Recent reports from the government have confirmed that most of these dreaded youth militia have been integrated into the police and the army. Court orders against government or its supporters are ignored and not given effect by the executive. There is selective application of the rule of law, with criminal sanctions only prosecuted in as far as they are linked to the opposition or critical civil society.

The inability of the judiciary to fulfill its duties has stifled efforts by civil society and others to challenge the constitutionality of the repressive legislation promulgated by the Government in recent years.

3. Elections – Voter registration, Violence and intimidation

The election process in Zimbabwe in recent years has been mired in controversy, violence and political intimidation. The Registrar General, who compiles the voters’ roll, has been accused of retaining the names and identification particulars of deceased people. There is regularly a parallel process of registration to the Registrar General when the local party chairperson or village head appears with their supporters and demand their vote whether or not they are on the voters’ roll. Some people have also reported that their names have been removed from the roll which contributes to a general overall lack of confidence in the roll.

At the time of writing this paper, constituency voter registration is going on. The process requires that voter show proof of residence in the area they are registering. In urban areas, this required producing rate bills in the elector’s names; whilst in rural areas, a chief or headman has to give written permission for one to be registered. This process is widely seen as targeted at the urban youth who form a huge critical constituency against the ruling party. In the rural areas, it also means that those who are known to be unsympathetic to the ruling party are not allowed to register.

In the past polls, opposition and independent candidates have regularly reported that they are physically prevented by ruling party supporters from reaching the nominations courts and are therefore not in the election race.

Since the emergence of a strong opposition movement in 1999, violence has become part of the political process and electioneering throughout the country. Documented cases of violence inflicted on non-ruling party candidates include abuse, torture, arson, rape and murder perpetrated by ruling party supporters, youths, ‘war veterans’ and, in some instances, the army. Whilst the ruling party is free to campaign, opposition candidates are refused police clearance under the POSA. Where rallies have gone ahead, they are disrupted by Zanu-PF youths, if not forcibly broken up by the police.

As violence prevails over the normal election process, the value of the vote decreases to the point where the public no longer views casting of the ballot as a legitimate way of changing the government and many people do not want to be associated with politics. This has contributed to quieter than expected polling days, as the campaign of violence and intimidation has largely achieved its objectives earlier.

In 2003, there were 388 cases of assault, 497 cases of torture and 10 cases of murder perpetrated largely by members of the ruling party (or with its tacit support) against members of the opposition and independent candidates. Chief agents of these abuses have been the youth militia. Before the March 2002 presidential election, youth militias were deployed to 146 camps around the country in close proximity to and in some cases sharing the venues for voting. Within weeks of their deployment in January 2002, reports began to emerge of acts of violence and brutality perpetrated by the youths, who later became known as the “green bombers”, including mounting illegal roadblocks, disruption of MDC rallies, arson, torture and murder. Their presence has characterised all national and local elections since 2002 and has been instrumental in facilitating Zanu-PF rallies while disrupting opposition party meetings.

Politicisation of Food

There is widespread suspicion that food distributions have been organised for political purposes by politicians, youth brigade members and others aligned to the ruling party. The Government’s food programme operates under a newly created Task Force on Maize Distribution, also known as the Food Committee, chaired by the Minister of State for Security (minister responsible for the notorious Central Intelligence Organisation, CIO). It comprises representatives from the police, defence forces and the CIO while several former senior military officers are key actors running the agency. 

The Committee is responsible for importing and selling through a distribution network, effectively giving it control over all maize supplies for the domestic market, and oversees the provincial and district food committees which are responsible for the distribution of food locally. The provincial and district committees evaluate the extent of need in their areas, determine the amount of grain to sell to individuals, and distribute maize weekly at depots.

Food has been used by the ruling party as a vote buying tool, where those who are perceived to be against the government are denied food aid. This process has been facilitated by the barring of NGOs and most recently, churches, from independently providing food aid to those in need.

There are permanent police roadblocks on all major routes into the cities where Government officials are impounding maize coming into urban centres, where opposition gain their largest vote.

Changes Required to facilitate the Democratic Process

To ensure free and fair elections can take place in early 2005, a facilitating environment is required during the period prior to the elections. In order to create such an environment, a number of steps are required:
1. The repeal of Acts of legislation which have created obstacles to the democratic process and have been used as instruments of repression by the Government and state bodies. These Acts include The Public Order and Security Act (POSA); The Access to Information and Protection of Privacy Act (AIPPA); The Broadcasting Services Act; The Electoral Act and an end to the promulgation of unjust laws.
2. The protection of the judiciary from political interference and re-establishment of the judicial system, ensuring equal access for all to an independent legal structure
3. An ending of acts of violence, torture and intimidation, perpetrated by members of the armed forces, or with their tacit support, on members of opposition political parties
4. A disbanding of the youth brigade militia (“green bombers”) and appropriate rehabilitation for the youths forced to undergo the training
5. Complete de-politicisation food and effective management of food supplies in accordance with humanitarian principles
6. Full adherence to the “Norms and Standards for Elections in the SADC  Region” as developed and adopted by the SADC Parliamentary Forum
7. Restoration of the rule of law, respect for human rights, civil and political freedoms

Norms and Standards for elections in the SADC Region

The SADC Parliamentary Forum Plenary Assembly meeting on 25th March 2001, adopted “Norms and Standards for Elections in the SADC Region”. The Forum is a representative body of national parliaments of the SADC Region, which includes Zimbabwe. The Norms and Standards were developed following experience gained as election observers in a number of elections during the late 1990s and provide a benchmark for all elections held within the SADC Region. The Norms and Standards include the following:

- Candidates should have unimpeded freedom to campaign throughout the country;
- All Government Security Forces should act impartially and professionally;
- All parties should have equal and free access to the state owned media;
- The sanctity of the freedom of association and expression should be protected and strictly adhered to;
- There should be reasonable safeguards for political meetings, rallies, polling stations and party premises;
- The right of eligible individuals to vote unimpeded should be protected;
- The role of civil society, mainly in election monitoring and civic education, should be recognised by Governments;
- In the interest of promoting and entrenching pluralism, multi-party democracy and the integrity of the electoral process, the complete independence and impartiality of the Electoral Commission in dealing with all political parties should be maintained;
- The Electoral Law should empower the Electoral Commission to recruit and dismiss its own support staff on the basis of professionalism and competence rather than getting seconded staff from Ministries and Departments. Such staff have no loyalty to the Electoral Commission.
- All stakeholders should commit themselves to pluralism, multi-party democracy and politics as a condition for participating in the political process of the country;
- The electoral law should prohibit the Government to aid or abet any party gaining unfair advantage;
- Governments should take the emergence of private media as a healthy development in the institutionalisation of the democratic process, the conduct of elections and should therefore refrain from taking decisions and actions that thwart the development of a strong private media.

- Governments should take cognisance of the fact that the involvement of political parties in the electoral process fosters the transparency of the system and generates public confidence in the system.
- A code of conduct should be developed through consensus from all political parties to guide behaviour in the conduct of campaigns.

As mentioned earlier in this paper, several pieces of legislation introduced by the Government of Zimbabwe are inconsistent with the principles put forward by the SADC Parliamentary Forum. The Government of Zimbabwe has put in place several obstacles to the democratic process and has ignored their responsibility of creating a facilitating environment for free and fair elections. While achieving public confidence in the democratic process is a goal of the SADC Forum, the Government of Zimbabwe has not only undermined this potential, but has pursued a policy of eroding democratic norms.

Conclusion

The government and the ruling party have used state structures to systematically erode the norms and standards required to facilitate a true democratic process. Legislation has been used not only to disenfranchise the public and opposition parties, but also in the process has been used to exert considerable repression against individuals and groups perceived to be unsympathetic to the government. Those who are not active supporters are expected to passively accept and endorse the ruling party in power. This support is expected at a time when the economic and humanitarian situation in the country is continuously deteriorating, trapping millions of people in poverty.

An ostensibly legitimate policy being followed to maintain an acceptance and legitimacy. Parliamentary elections due in March 2005 will enhance their hold on power, allowing the continuation of current violations. It is imperative that, over the coming months and in the lead up to the 2005 elections, considerable efforts are put into creating an environment in Zimbabwe conducive to normal democratic process.

There can be no free and fair elections where people are forced to vote, denied voting or are systematically denied the vital information to enable them to make an informed political decision.

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