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The Zimbabwe Electoral Commission Bill: Will it improve the electoral process?
Human Rights Watch
November 2004

http://www.hrw.org/backgrounder/africa/zimbabwe/2004/11/zimbabwe1104.pdf

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Summary
The Zimbabwe Electoral Commission (ZEC) Bill is an important government initiative to provide an independent and impartial electoral authority ahead of the general election in March 2005. The previous general election in June 2000 and the presidential election in March 2002 ended in sharp acrimony with controversy over process and the fairness of the results. In this heated and politically polarized environment, an independent and impartial electoral commission could have great potential for building voter confidence in the conduct of the upcoming election. However, the Bill as currently drafted is flawed and should be withdrawn and appropriately revised.

Regionally, too, the ZEC Bill is of great significance. In August 2004, the fourteen Southern African Development Community (SADC) Heads of State, including President Robert Mugabe, adopted the SADC Principles and Guidelines Governing Democratic Elections. The document outlines the responsibilities of member states holding elections, including the establishment of an independent, inclusive, and impartial electoral authority. The SADC Principles also deal with the constitution and mandate of SADC Electoral Observer Missions (SEOMs) as well as their codes of conduct and guidelines for the observation of elections. SADC is eager for the general election in March to improve the political climate in Zimbabwe, which would likely reinforce the apparent normalization of SADC's relations with the European Union.

With most SADC member states holding regular multiparty democratic elections, SADC has sought to promote common democratic norms and standards. In particular, SADC has encouraged the establishment of independent and impartial electoral authorities to conduct democratic elections. Among member states, there is great variety in the formal institutional architecture of independent electoral authorities. A brief survey of the laws providing for electoral commissions in Botswana, Lesotho, Mozambique, Namibia, and South Africa highlights their diversity. The electoral commissions in Botswana, Lesotho, Namibia, and South Africa are established by the Constitutions and Parliamentary laws of these countries. In Mozambique, the electoral commission is constituted solely through an Act of Parliament. SADC states also differ in how commission members are appointed.

The Presidents of Namibia and South Africa, and the King of Lesotho, play a role in the appointment of the commissioners. The President of Mozambique is only involved in the appointment of the President of the Commission. In Botswana, the President does not participate in making appointments. In Lesotho, South Africa, Mozambique, and Botswana, political parties in parliament are involved in the appointment process. Some commissions explicitly exclude all or high ranking party officials from membership, as in Mozambique and South Africa.

With this regional backdrop, this paper examines the ZEC Bill. The Bill is a positive government initiative to establish an independent and impartial electoral body ahead of the March election, but falls short of emerging SADC benchmarks. Specifically, the method of appointment of Commissioners does not provide for the degree of party inclusion that exists in Botswana, Lesotho, Mozambique, or South Africa. The Commission's independence is undermined by too many opportunities or requirements for Ministerial intervention. The voter education provisions give unnecessarily intrusive and restrictive powers to the Commission and curtail freedom of information, freedom of expression, and the full political participation of citizens. Moreover, the Bill contributes to existing confusion among electoral institutions over their respective responsibilities.

Human Rights Watch urges the government of Zimbabwe to adopt the following measures to strengthen the independence and impartiality of the Electoral Commission. Zimbabwe may wish to follow the SADC trend toward making electoral commissions a constitutionally mandated institution.

The government should involve groups and individuals outside the presidency and the ruling party more fully in the process of selecting Electoral Commission members. In addition, the Commission should be insulated from interference by government Ministers. It should be responsible only to Parliament. Making the Electoral Commission the supreme electoral institution will require eliminating or clarifying the role of the Electoral Supervisory Commission (ESC). Revisiting the Electoral Act and the Constitutional provisions for the ESC will be necessary to eliminate the current confusion over electoral responsibilities among the various electoral institutions. Human Rights Watch also urges SADC to engage the government of Zimbabwe to ensure that the ZEC Bill is consistent with SADC requirements.

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