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The Pre-Election Environment in Zimbabwe
Zimbabwe Lawyers for Human Rights (ZLHR)
March 30, 2005

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The Preliminary Election Report is produced with two main themes: The Pre-Election Environment and Facing the Electoral Challenges That Lie Ahead, which has a special focus on the Roy Bennett case. The report also carries an annexure which among other things has relevant legislation excerpts, ZLHR letter to the Minister of Home Affairs dated 26 June 2004, Zimbabwe Election Support Network List of non-neutral polling stations and ZLHR press statement dated 17 March 2005.

Contents

• The Pre-Election Environment in Zimbabwe
  Arnold Tsunga, Irene Petras and Otto Saki
• Facing the Electoral Challenges That Lie Ahead:
  Looking at the Roy Bennett Case
  Rangu Nyamurundira

Annexures

• Legislation excerpts:
  • Access to Information and Protection of Privacy Act
  • Broadcasting Services Regulations
  • Public Order and Security Act
  • Zimbabwe Electoral Commission Act
• ZLHR Press statement: 17 March 2005
• ZLHR letter to Minister of Home Affairs dated 26 June 2004
• ZESN list of non-neutral polling stations
  

1. The Pre-Election Environment in Zimbabwe

Excerpt
Zimbabwe Lawyers for Human Rights (ZLHR) has as its main objective the fostering of a culture of human rights in Zimbabwe, as well as encouraging the growth and strengthening of respect for human dignity and rights at all levels of Zimbabwean society through observance of the rule of law. A strong indicator of whether these goals are being achieved is whether free and fair elections are possible and probable. Genuine elections serve to illustrate the free will of the people and allow them to express their opinions and participate freely in the government of their country. It is within ZLHR’s constitutional mandate to scrutinise whether constitutional and international human rights standards are being upheld and will therefore allow for this objective of free and fair elections to be met to reflect the genuine will of the people.

In the run-up to the March 2005 parliamentary elections, much mention has been made by various stakeholders of the SADC Principles and Guidelines Governing Democratic Elections ("the SADC Principles") and how far compliance with these Principles has been achieved. The SADC Principles were adopted by the SADC Summit (including Zimbabwe) in Mauritius in August 2004.

Although the SADC Principles are merely aspirational the new Electoral Act [Chapter 2:13] in section 3 incorporates into domestic law "General principles of democratic elections" which, although not directly incorporating the SADC Principles, are reflective of their intent and aspiration.

The SADC Guidelines can therefore be used to judge how far Zimbabwe can be said to have complied and how probable it is that Principle I [Acceptance and respect of the election results by political parties proclaimed to have been free and fair by the competent national electoral authorities in accordance with the law of the land] will ultimately be realised.

2. Facing the electoral challenges that lie ahead: looking at the Roy Bennett case

Excerpt
After almost twenty five years of political independence, during which five parliamentary elections have been held, Zimbabwe finally boasts the creation of an Electoral Court charged with "hearing and determining election petitions and other matters in terms of [the Electoral Act]". This new creation of a court that will deal solely with any issues arising from elections in Zimbabwe coincides with the upcoming 6^th parliamentary elections to be held on the 31^st of March 2005. The Electoral Court is in fact a creature of the Electoral Act [Chapter 2:13] which is amongst new electoral laws recently enacted in Zimbabwe at the beginning of 2005. Their promulgation following much domestic, regional and international advocacy and pressure on the Government to instil a level electoral playing field where free, fair, transparent and credible election procedures and results would be standard.

The Southern African Development Community (SADC) adopted the SADC Principles and Guidelines Governing Democratic Elections in August 2004 at Mauritius. These Principles and Guidelines seek to bring about a culture of transparent and credible election processes within the member states of SADC. The many principles to be adhered to include the full participation of citizens in the political process; equal opportunity to exercise the right to vote and be voted for; independency and impartiality of the electoral institutions; the ability to challenge the election results as provided for in the law of the land. To fulfil these principles one of the responsibilities expected of SADC member states is that they should "establish ...competent legal entities including effective constitutional courts to arbitrate in the event of disputes arising from the conduct of elections"

The creation of an Electoral Court in Zimbabwe is thus an endeavour to provide a podium to which challenges and disputes arising from Zimbabwe’s elections can be brought. This would allow those who may feel, in one way or another, that some undue process of elections or a contested election result has been imposed upon them such that their democratic right to vote and be voted and indeed form a government of their choice has been infringed upon and usurped.

The question that however stands to be answered is whether the new Electoral Court has the required competence, the capacity, efficiency and effectiveness to deal with any elections petitions and other issues arising from the electoral process in Zimbabwe. Already a precedent has been set in past elections, where our judiciary failed to efficiently and effectively attend to and deal with challenges to the elections results such as those raised following the 2000 Parliamentary elections and 2002 Presidential elections. Indeed some of these challenges are still to be resolved by our courts of law. One can only thus ponder on whether the new Electoral Court will be a catalyst for a new democratic culture of elections, which culture had pretty much been stranded in a dark tunnel of uncertainty and dispute in past elections in Zimbabwe.

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