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Of credible elections and the new Constitution
Youth Forum
October 31, 2012

During this long-drawn-out constitutional drafting process, commentators, press reports etc. have suggested that the new constitution would go a long way to ensure the next general election, aimed for March 2013, but highly unlikely then, would be free, fair and peaceful and not a repeat of the 2008 controversy. However, it is too optimistic to assume that the new constitution will in itself create those conditions. So what is needed to be improved in the new constitution in order to assure that free and fair elections can be held?

Electoral System

Firstly, the new constitution spells out who is to be elected and who will be entitled to elect them, but apart from requiring some elections to be held under a system of proportional representation, it does not deal with the way in which elections are to be held.

Secondly, even though the new constitution states that some seats in the Senate and National Assembly will be filled by elections on a system of proportional representation, the Electoral Act first will have to be amended or replaced, since currently, it still requires all elections to be held on a first-past-the-post system.

Voter's Roll and Voter Education

The existing voters' roll is generally regarded as completely inaccurate and this is supported by the Zimbabwe Electoral Commission, which is nominally responsible for compiling the roll. An accurate voters' roll is essential for the holding of a fair election, so the existing roll will have to be revised or a new roll will have to be compiled. This will take at least six months which is far longer than the 60 days specified in the new constitution.

Voter education will have to be undertaken by ZEC or ZEC approved organisations. There will inevitably be large numbers of young, first-time voters on a properly-compiled new voters roll. However, even for long-standing voters, education will be necessary to ensure that there is understanding of the changes made to election procedures by a new Electoral Amendment Act.

Electoral Observers

With a past history of electoral violence and contested election results in Zimbabwe, the system for national and international electoral observers needs revision to ensure that the observers are drawn from a wide spectrum of opinion and that they are allowed to monitor all aspects of the electoral process (from the registration of voters to the announcement of results) as well as have a monitoring period that extends from well before the election itself until at least a month after the results have been announced. The Electoral Act does not provide for this extended type of monitoring, though it has recently been announced that the Electoral Amendment Act will allow observers to be accredited to cover the period before an election is actually called. If the first elections under the new constitution are to be credibly monitored, the legal position of observers will have to be strengthened.

Electoral Environment

The electoral environment also has to be taken into account when drafting the new constitution. In order for an election to be free and fair, it is not enough for voters' rolls to be accurate, for constituencies to be properly delimited or for the Electoral Act to be clear and comprehensive. The environment in which the election takes place must allow all parties and candidates that wish to do so to contest the election and put their cases fully to the electorate.

Media

Then we move on to the media reform which would require the State-owned broadcasting and print media to be reformed in order to make them politically neutral, enabling the electorate to hear views other than those of ZANU-PF. This may be done by appointing new boards of the Zimbabwe Broadcasting Company, the Broadcasting Authority of Zimbabwe and the Mass Media Trust, but of course new, genuinely independent broadcasters must be licensed.

State Institutions

Another important issue is that of how the police force operate during and after an election. The commanders of the Police Force, the Defence Forces and the CIO must commit themselves to operate in a non-partisan manner, consistent with their obligations under article 13.1 of the GPA. This is particularly important in the light of statements by senior army officers that they will not recognise a non-ZANU-PF government. More importantly, the commanders must take appropriate measures to prevent politically-motivated violence on the part of the members of their forces and, generally, to ensure the political neutrality of their forces.

POSA and AIPPA

Freedom of assembly and association should also be addressed, because even though the new constitution guarantees these freedoms, its provisions will not be effective until they are incorporated into statute law. The Public Order and Security Act [POSA] must be replaced or further amended to reduce the discretion given to police officers to prohibit political meetings, and to ensure that any discretion they do have is exercised only to avert readily foreseeable disorder.

Until this is done anyone who wants to challenge the existing law will have do it through a constitutional application to the Supreme Court, and that is likely to take so long that the election will be over before a decision is reached. This relates also to how the Access to Information and Protection of Privacy Act [AIPPA] must be replaced or amended to allow genuine freedom of speech during elections. In particular, the prohibition against denigrating the President must be amended to allow the President to be questioned and criticised at election times just like any other politician.

Timelines and Expiration of Parliament

All these reforms must be instituted as soon as possible because there is not much time left for them to be implemented. The deadline for the next elections is dictated not by agreement on the new constitution, but by the life of Parliament under the present Constitution. Parliament was elected in March 2008, and under section 63(4) of the present Constitution it lasts for five years from the date on which the President was sworn in. Mr Mugabe was sworn in on the 29th June 2008 after the run-off presidential election, so the life of the present Parliament ends on the 29th June 2013, when Parliament will stand dissolved.

In terms of the Constitution, a general election must be held within four months after Parliament stands dissolved, so the next general election must be held before the 29th October 2013. (The life of Parliament can only be extended if Zimbabwe is at war or if there is a state of public emergency). As a result, any legislation to regulate the conduct of the next election, must be passed before the 29th June 2013 (because after that there will be no Parliament to pass it) and the general election itself must be held before the 29th October 2013. If the next general election is to be held under the new constitution, then, in addition to the electoral reforms that have been outlined, the new constitution itself will have to be enacted while there is still a Parliament - i.e. before the 29th June 2013.

International Community's Responsibility

Of course, there is also an international responsibility to ensure that these reforms and amendments are upheld and respected because there is no guarantee that the Zimbabwe government will put into practise the changes that will be made in the new Constitution. Considering Zimbabwe's track record, there is a legitimate and real change that this entire process simply has been a front in order to appear to want to improve human right issues in the country. The international community therefore has to not only take this process to be sufficient evidence of Zimbabwe changing their ways, but instead follow up on what actual change the Zimbabwean people experience as a result of the new Constitution. International institutions of course do not have the power or mandate to intervene in how states decide to construct their national constitution, however there are several UN councils and structures, who deal with respecting and upholding human right conventions and principles, of which Zimbabwe is a member.

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