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Race against time: The need for legal and institutional reforms ahead of Zimbabwe's elections
Human Rights Watch (HRW)
January 10, 2013

http://www.hrw.org/reports/2013/01/10/race-against-time-0

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Summary

In September 2008 the Zimbabwe African National Union-Patriotic Front (ZANU-PF) and the two factions of the Movement for Democratic Change (MDC) party agreed to form a powersharing government, formed officially in February 2009. But over four years after the Global Political Agreement (GPA) was signed little progress has been made on one of the key aspects of the GPA that aimed at preparing the country for credible, free and fair elections. The legal and institutional reforms that are expected to address various political, institutional and human rights issues ahead of the 2013 elections have either not been introduced or are not being implemented.

The so-called unity government, whose partners are anything but united, consisting of the former ruling ZANU-PF and the two MDC factions has failed to hold accountable those responsible for past human rights abuses, including during the 2008 electoral violence. It has also failed to reform key state institutions responsible for the administration of justice, which remain highly politicized and extremely partisan towards ZANU-PF.

The main purpose of the GPA was to establish institutional and legal reforms to create a conducive environment for the holding of free and fair elections. The formation of the unity government, however, left longtime President Robert Mugabe and ZANU-PF - because of their control of key government ministries including defense, state security and justice - with significantly greater power than the MDC, which has been used to frustrate or stop crucial reforms.

On a number of occasions since the unity government assumed office President Mugabe and Prime Minister Morgan Tsvangirai of the MDC have issued joint public statements condemning political violence but with no corresponding action to dismantle the infrastructure of violence and end impunity.

The GPA, except in article 20 (the framework for a new government) incorporated into the constitution through amendment 19, has no legal status under the law of Zimbabwe, and as a result, ZANU-PF has repeatedly undermined the GPA and put off the implementation of essential reforms. Such reforms include amendments to repressive laws such as the Access to Information and Protection of Privacy Act (AIPPA), 2002; the Public Order and Security Act (POSA), 2007; the Criminal Law (Codification and Reform) Act, 2004; and the Presidential Powers (Temporary Measures) Act, 2007, which empowers the president to enact legislation even during elections.

This report assesses the legislative and electoral reforms undertaken by the unity government and analyzes the quality of those reforms and their capacity to create an environment conducive to credible, free and fair elections. Human Rights Watch has found that the contending parties have focused on only one aspect of reforms - securing agreement on the necessary legal and administrative requirements for free and fair elections. However, little attention has been paid to the implementation of the agreed reforms and to securing agreement and ensuring reforms on areas where agreement has not been reached. The unity government has neglected the enforcement of various agreements that would facilitate a rights-respecting environment and the holding of credible, free, and fair elections.

Mugabe, according to papers filed with the High Court on September 27, 2012, wants national elections to be held in March 2013, without prior consultations with the prime minister as stipulated in the GPA. Nevertheless, because of the power Mugabe wields, it is a strong indicator that elections may indeed take place in March 2013.

The timing of national elections is governed by Zimbabwe's constitution, which provides that parliament, unless dissolved earlier, shall last for five years, counting from the day the person elected as president enters into office. Mugabe was sworn in on June 29, 2008, and the presidential and parliamentary term of office ends on June 29, 2013, with fresh elections required to be held no more than four months after that date. If elections are not held in March as Mugabe has indicated, the latest they can be held constitutionally is October 29, 2013.

Legislative reforms and the enactment of a new constitution are key but insufficient for free and fair elections. A level playing field for all political parties also requires robust enforcement mechanisms that are implemented by independent and non-partisan institutions, such as the judiciary and electoral commission, that act to prevent violence, hold accountable perpetrators of abuses, and ensure equal access to the media by political parties and candidates. A comprehensive approach to democratic reforms in Zimbabwe requires laws and regulations consistent with international standards, but it also requires close attention to the independence and professionalism of the government institutions and individuals - such as civil servants - responsible for delivering reforms.

With the unity government making little progress in several areas, including on key legal reforms, there are genuine concerns that if elections are held in March, there will be widespread human rights violations ahead of, during and after the elections. Such violations will undermine a credible, free and fair vote. Time is fast running out for the unity government to institute reforms, including finalizing the new constitution and allowing time for its provisions to be implemented before elections are held.

The unity government, supported by the Southern African Development Community (SADC), should urgently introduce and implement key human rights and institutional reforms as outlined in the GPA; otherwise it may be far too late to create an environment conducive to the holding of credible, free and fair elections. Failure to hold credible elections could result in an increasing spiral of violence, chaos. and lawlessness.

Zimbabwe's unity government should take action to halt the ongoing political chaos by ensuring a level playing field for all political parties and the impartial enforcement of laws. Qualified, non-partisan individuals should be appointed to run governance institutions, including the Zimbabwe Electoral Commission (ZEC), the judiciary, and the police.

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