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Pre-election environment for the 29 March 2008 harmonised elections in Zimbabwe
Zimbabwe Lawyers for Human Rights (ZLHR)
March 28, 2008

Zimbabwe Lawyers for Human Rights (ZLHR) is a professional law-based national human rights organisation whose core objective is to foster a culture of human rights, tolerance and democracy in Zimbabwe. ZLHR is committed to upholding respect for the rule of law and the unimpeded administration of justice, free and fair elections, the free flow of information and the protection of constitutional rights and freedoms in Zimbabwe and the surrounding region.

ZLHR has been closely monitoring the pre-election environment in Zimbabwe as well as providing pro bono legal support services in the form of public interest litigation, human rights training and public education, legal analysis of electoral, security and media laws, and protection of the rights of human rights defenders throughout the election period.

Regarding the 2008 pre-election environment, ZLHR takes the considered and well informed position that the situation currently prevailing in Zimbabwe is evidently not conducive to a free and fair election owing to the following issues:-

Fundamental rights and freedoms
The Constitution of Zimbabwe in its present form is not enabling in that it does not ensure that all Zimbabweans can assert and realise their fundamental rights and freedoms such as free expression, assembly, association and participation in the government of the country. It does not provide for the realization of economic, social and cultural rights, which cannot be separated from civil and political rights. Failure to address the social and economic situation in Zimbabwe in terms of such constitutional safeguards has contributed to the lack of freedom to participate in governance issues.

Institutional Independence
The Constitution does not guarantee the independence, impartiality and integrity of institutions critical to the election process, including the Zimbabwe Electoral Commission and the Electoral Court. Recent amendments to the Constitution have not cured these concerns. Key institutions remain subservient to the executive in terms of how they are constituted, how they are resourced, and how they are able to carry out their mandate and functions.

Citizenship
The Constitution disenfranchises Zimbabweans living in the Diaspora as they are barred from casting postal votes, which remain the preserve of certain categories of civil servants. Zimbabwean citizens by birth whose parents migrated from other countries during the pre-independence era continue being rendered stateless and disenfranchised due to the erroneous interpretation of the citizenship laws by the Registrar General and ZEC officials. Those convicted of criminal offence, inmates awaiting sentencing and mentally unsound can not be registered to vote.

ZLHR believes that the failure to allow an all-inclusive, people-driven process of complete constitutional reform prior to the elections has irreparably negatively affected the acceptability of the pre-election period.

The security and media laws have severely, unlawfully and irreparably restricted fundamental rights and freedoms in Zimbabwe. Political gatherings and meetings have been frustrated by the police who in most instances have disrupted such gatherings organised by opposition parties and civil society organisations or totally denied permission to have them. The repressive legislation, in particular the Public Order and Security Act, (POSA) and the Access to Information and Protection of Privacy Act (AIPPA) have been used by the police to deny people their rights to assemble and associate. Arbitrary arrests and detentions have been witnessed in instances were people have gathered for campaigns and participated in other forms of campaigning especially in outlying and more remote areas. The operating space has only been opened since the arrival in the country of the SADC Observer Mission, but too late to have a meaningful effect on the election environment. Amendments to the security laws have not been implemented and therefore have not improved the election environment.

Particularly of concern are the public statements by the Commissioner-General of Police, the Commander of the Army, and the Commissioner of Prisons, indicating that they will not support or accept the election of opposition candidates. This has the effect of instilling fear in voters and candidates to the extent that campaigning and voting will not be free.

Media laws remain restrictive, stifling freedom of expression and access to alternative information. The new media regulating authority, the Zimbabwe Media Commission, has not been constituted, and the Media and Information Commission (MIC) that was made redundant by the amendments remains operational without any mandate. International journalists have not been allowed entry into the country or accreditation to cover the elections and this adversely affects the right of the people in Zimbabwe and further afield to access information about the election process, the candidates and their policies. Journalists accredited by the MIC were denied accreditation by ZEC, impacting on their right to practice their profession and in contravention of national laws and constitutional safeguards. Media coverage, especially in the state-controlled print and electronic media, has been particularly biased against opposition parties and candidates, and has only been opened up slightly upon the arrival of the SADC Election Observer mission. However the coverage is still overwhelmingly in favour of the ruling party. Again, the media environment has not improved with the amendments to the media laws in any meaningful way to positively contribute to a conducive election environment.

The Zimbabwe Electoral Commission
The impartiality and independence of the electoral institutions, particularly the Zimbabwe Electoral Commission (ZEC), remains questionable due to a number of issues, including the appointment process of its office bearers, their independence, impartiality, efficiency and effectiveness.

The composition of ZEC remains unchanged despite demands by the main opposition party and civic organizations that it be reconstituted. Staffing of ZEC remains the preserve of civil servants and therefore is non-inclusive. In practice, serving and retired members of the armed forces have been recruited as staff members of ZEC, so the institution is heavily militarised. The President, using disputed and controversial emergency powers, has recently involved the police in assisting ZEC during elections despite previous agreements between the ruling party and the opposition to ensure non-involvement of the police in the voting process.

ZEC has been seriously under-funded and under-staffed, and this, coupled with the unrealistically tight schedules within which it must work has adversely affected the performance of its duties.

The breakdown of separation of powers in Zimbabwe, particularly executive interference in the functions of the judiciary has become endemic and is an issue of grave concern to the legal profession in Zimbabwe, as well as regional and international law-based organisations.

The establishment of the Electoral Court was not adequately and timeously clarified and the Rules of the Electoral Court were never gazetted, causing confusion and delays when electoral matters were brought to the court. An audit of the handling of a range of cases undertaken by ZLHR on behalf of affected voters, civil society and political parties, both in the Magistrates' Courts and the High Court has supported the perception that judicial officers have used technical arguments relating to issues such as jurisdiction and legal standing, as well as delaying the setting down of matters or delivering of judgments in order to avoid having to make decisions on substantives issues. This is likely to reinforce the view that the administration of justice is not fair and the lack of confidence in the justice delivery system.

The delimitation process was critical in light of the extensive amendments made to the number of constituencies as well as the new requirement for voters to cast their ballots in their wards. The delimitation of boundaries conducted by ZEC was neither inclusive nor transparent. The initial delimitation commission report was not timeously issued and it was inadequately publicised for public comment and input. Parliamentarians were not given proper access or an opportunity to fully debate the report and input into further amendments before it was proclaimed by the President. Efforts by ZEC to widely publicise the contents of the reports and provide voters with maps of their wards and constituencies have been severely delayed. Publication of various maps in the print media have been affected by the poor print quality, low circulation numbers of the newspapers, high costs of the newspapers and the accessibility of newspapers to all Zimbabweans. Voter education by ZEC did also not adequately deal with these shortcomings.

ZEC's mobile voter registration process was not adequately publicised and the time provided for the process was too short.

The amended electoral laws stipulate that ZEC, rather than the Registrar General of Voters (RG), should be responsible for maintaining and updating the voters' roll, directing and controlling the registration of voters as well as compiling the voters' roll. However ZEC lacks the capacity to carry out these functions and has instead again relied heavily on the RG's office to help it carry out its new responsibilities.

The normal voter registration and inspection process was once again conducted by the Registrar-General (RG) of Voters, purportedly under the direction and control of ZEC. In the past, the RG has been accused of manipulating electoral processes to favour the ruling party and this issue has never been properly addressed. Once again, there were irregularities in the registration of voters, particularly in relation to the manner in which issues of citizenship were interpreted by officers from the RG's office despite previous sanctions against the RG imposed by both the courts and a parliamentary committee.

There have been reports that the registration process has continued and that the RG has advised supporters of the ruling party that they will be allowed to vote even where they were registered after the cut-off date of 14 February 2008. ZEC has tried to correct this misconception through advertising in the print and electronic media, but the confusion and fears still exist, especially as this position was publicly reinforced by the President in several of his rallies, where he indicated that a supplementary voters' roll would be used to ensure that such voters would be able to cast their ballots.

Fears have been compounded by the incorrect advice of officers of the RG's office that alien voters will not be allowed to cast their ballots on 29 March even where their names appear on the voters' roll. Requests for a public clarification of this from ZEC have not been answered.

The RG and ZEC also did not ensure an open inspection of the voters' roll for aspiring candidates of the opposition party or the electorate in certain cases until they were compelled to do so by a court order. In addition, neither an electronic nor a hard copy of the voters' roll was made available to candidates as stipulated in the amended laws. An urgent application to the High Court for access to the roll failed, again on technical grounds. The failure of ZEC to provide the voters' roll reinforces the perception that the roll remains in a shambles and will be used to disenfranchise voters as well as allow manipulation on voting day through use of ghost voters and newly registered voters whose identity and place of residence cannot be adequately clarified by candidates and accredited observers.

The further failure by ZEC to clarify the status of those with voter registration certificates but whose names do not appear on the voters' roll and whether they will be allowed to vote on 29 March is also cause for concern.

The failure to have the voter registration exercise and issues arising there from handled by a credible impartial organ in a transparent and accountable manner poses a significant, serious and perpetual threat to the overall credibility of the electoral process in Zimbabwe.

The ZEC failed in its mandate to provide adequate, impartial and informative voter education in spite of the fact that the voting process has become more complicated. Poor infrastructure such as road networks in some provinces and the over-reliance of the Commission on the print and electronic media which is not readily accessible or affordable to every Zimbabwean resulted in inadequate voter education being disseminated. Voters were not adequately informed on ward and constituency boundaries after delimitation. This is likely to affect voter turnout as well as spoilt votes or voters being turned away, particularly as they will only be allowed to cast their votes in their wards.

ZEC unreasonably and unnecessarily barred other experienced election organisations from enhancing its own voter education process and outreach. In light of ZEC's stretched financial and human resources, such inclusion would have had the effect of ensuring that more areas and potential voters were reached before 29 March 2008.

Information about location of polling stations was published timeously; however there were some constituencies and provinces in which information was inaccurate, which necessitated re-publication and clarification of the information relating to these areas. Once again, concerns were raised about the low number of polling stations in urban constituencies. Three days before the polling day ZEC advised that they had set up 250 composite polling centres and that they were in the process of identifying more stations. When scrutinised, the number of polling stations in each of the disputed areas remains unacceptably low and there is a real danger of people failing to vote, especially if voter turnout is high. In addition, there is little information about the set-up of the composite centres to allow candidates, their election agents and local and international observers to deploy adequate numbers of persons to ensure that observation goes smoothly.

ZLHR fears that information regarding these stations and where they are located remains confused and, for the majority of affected persons, unknown. The number of polling stations identified by ZEC remains inadequate and the number of polling stations in some urban and peri urban areas are not proportionate to the number of registered voters in those constituencies.

Presence of police
Originally, and as a result of agreements made between the ruling party and the main opposition during the SADC dialogue process, the police were only mandated to provide security at the polling stations during elections beyond a radius of 100 metres of the polling station; however their role has been expanded through presidential powers so that they can now enter the polling stations, ostensibly to assist certain voters.

These presidential powers have been hotly disputed in the past and were again challenged by way of urgent application. Once again, the application was dismissed. No reasons were provided by the judge in this regard.

The presidential powers have also been used to bar candidates and their agents from putting their thumb-prints, signatures or seals on ballot boxes which are sealed in a polling station at the close of polling since, apparently, the new translucent ballot boxes have no space for additional seals or signatures. This seems an inadequate reason for abolishing a small but valuable safeguard against electoral fraud.

ZLHR has also received credible reports that police officers were being accredited in the last few days as local observers by ZEC. This is unacceptable and has been taken up with the authorities. There is no reason why police should be accredited as election observers when they are allowed to come and go as they please from polling stations and can be easily identified as members of the uniformed forces. It can therefore only be concluded that accreditation is being used as a tool for the purposes of gathering information and potentially influencing the reports of other bona fide observers, as well as potentially for use in the counting phase at the expense of legitimate observers who will be removed from the polling station.

Issues relating to ballot papers and postal votes
Reports have been received that an unjustifiable number of ballot papers has been printed which is well in excess of the number of registered voters. In addition, ZEC has publicly advised that 8000 people applied for postal votes, yet there are reports that hundreds of thousands of postal ballots have been printed. When ZEC was approached to provide an explanation and the correct figures of printed ballot papers, it refused, saying that it has no legal obligation to provide this information.

Added to the fact that observers were not advised of the date, place and time of the opening of the application for postal votes and the commencement of the postal voting process, there are serious concerns about the integrity of the postal votes.

Election Observers
The provisions for accreditation of election observers allow the Minister of Foreign Affairs and Minister of Justice to veto the accreditation of "unfriendly" foreign and domestic observers. The impartiality of the Ministers when exercising their veto powers is highly questionable as they are also contestants in the elections and they exercise unacceptable executive powers over ZEC, thus compromising its independence.

ZLHR is gravely concerned at the cherry picking of foreign observers and reiterate the importance of international, regional and national acceptance of the outcomes of the polls, for restoration of legitimacy and acceptance in the international fold of the new government after 29 March.

Political intolerance
This remains high in Zimbabwe with candidates calling each other names and publishing injurious articles about each other with impunity. Regulations have however been promulgated to prohibit injurious articles in the print media that might result in violence.

ZLHR will be releasing a full and comprehensive election report soon after the elections to explain further these concerns and also highlight further developments as observed and witnessed during Election Day and incorporating the post-election period.

Visit the ZLHR fact sheet

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