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Zimbabwe does not comply with Regional Electoral Protocols
International
Bar Association (IBA)
February 21, 2005
The date is set for
31 March and Zimbabwe’s race for power is on, the opposition Movement
for Democratic Change having agreed – ‘with a heavy heart’ – on 3 February
to participate in parliamentary elections against the ruling Zanu PF party,
led by President Robert Mugabe.
The country is nowhere
near complying with regional guidelines for free and fair polls, signed
by Southern African Development Community countries (including Zimbabwe)
in Mauritius last August. With an electoral environment so skewed and
oppressive that victory is assured for the ruling party, already in power
for 25 years, the SADC protocols appear pointless.
They are not, for
several reasons – but the coming weeks and months will be crucial if SADC
is to make a positive contribution to the conduct and legitimacy of the
poll, or to the crisis in Zimbabwe. In the words of Joseph James, president
of the Law Society of Zimbabwe: ‘If a government decides not to adhere
to a international agreements it has signed – whether they are regional,
African or United Nations protocols – there is very little that can be
done, except to bring peer pressure to bear on the reneging state.’
Despite an apparent,
slight change in attitude towards the Zimbabwean Government on the part
of South Africa, there is little sign that SADC will make a concerted
effort to persuade Mugabe’s Government to conform to electoral protocols.
‘Ultimately, responsibility rests with the Zimbabwean Government to
comply – it can do as it pleases,’ James added.
Importantly, though,
the SADC ‘Protocol on Principles and Guidelines Governing Democratic Elections’
is a regional initiative.
When elections in
2000 and 2002 were condemned by international bodies as un-free, unfair,
violent, and rigged, Mugabe counter-argued that Western democratic rules
should not be imperialistically imposed on Africa, which should develop
its own democratic systems, and that Zimbabwe’s polls were adequate relative
to others in Africa.
By signing the SADC
protocols, Zimbabwe has acknowledged (at least in principle) that the
will of southern African governments is to set universally accepted rules
for democratic polls, rather than some form of less rigorous standards
for Africa.
Second, SADC now has
comprehensive guidelines against which to measure elections in the region.
Lack of agreed principles for free and fair polls was a glaring weakness
when the body legitimized Zimbabwe’s 2002 election.
Third, setting benchmarks
for democratic elections is a crucial part of regional and African efforts
to promote stability and good governance across the continent, as pre-conditions
for increased international aid and investment. It is widely agreed that
Zimbabwe has become an impediment to African development efforts, though
it is not alone in this.
Fourth, the SADC protocols
recognize that conditions in the run-up to polls are as important to fulfilling
free and fair criteria as conduct of elections on the day. It is no longer
enough for voting to take place reasonably peacefully if, for example,
the opposition has been denied access to the state media, citizens have
been disenfranchised or judicial independence compromised, as has happened
in Zimbabwe.
Finally, with electoral
protocols in place and signed by all 14 member countries, SADC will be
able legitimately to act against members who do not comply, without accusations
of undermining national sovereignty or cow-towing to imperialist interests
– even if its actions are limited, in the way that international organisations
inevitably are by their members.
Much, therefore, depends
on the announced visit of SADC lawyers to Zimbabwe to look at electoral
laws and reforms, and on SADC election observers – especially as observers
from other international bodies, such as the European Union and Commonwealth,
will be barred.
It will be very difficult,
many would argue impossible, for SADC lawyers from South Africa, Lesotho
and Namibia – the countries that constitute the organ that monitors elections
– to reach favourable conclusions about Zimbabwe’s compliance with pre-electoral
protocols. That is, if they are allowed to do their job: the Cape Times
reported on 4 February that the team, expected in Harare in late January,
had yet to receive permission to visit Zimbabwe.
The SADC protocol
covers key conditions for free and fair polls, including: full participation
of citizens in the political process; an independent judiciary; political
tolerance; human and civil liberties for all citizens, including freedom
of movement, assembly, association, expression and campaigning; equal
access of all parties to the state media; a conducive environment for
free, fair and peaceful elections; non-discriminatory voter registration;
an updated, accessible voters’ roll; impartial and accountable electoral
bodies; adequate security for all parties; vote-counting at polling stations
that are in neutral places; voter education; regular elections; and measures
to prevent fraud, rigging or other illegal practices.
Very few of these
criteria are met on the ground in Zimbabwe where, Human Rights Watch predicted
last month, elections will likely ‘unfold in a climate of repression
and intimidation’ under draconian laws used ‘to suppress criticism
of government and public debate’.
While the SADC guidelines
encourage free association and political tolerance, scores of MDC supporters
and two of its MPs have been arrested in the past month, simply for holding
meetings. In its latest political violence report, published last month,
the umbrella civil society group the Zimbabwe Human Rights NGO forum said
that last November it recorded 399 assaults, 62 abductions and 406 unlawful
arrests, almost all of them opposition supporters.
Writing in South Africa’s
Mail & Guardian recently, human rights lawyer Daniel Molokele argued
that while claiming compliance with the SADC protocol through reforms
including the Zimbabwe Electoral Commission Act, Mugabe’s government had
set out to hoodwink SADC leaders with moves that are no more than ‘democratic
window dressing’. Comparing SADC guidelines to reality on the ground
in some areas, Molokele found the concept of a credible election in March
to be a ‘political mirage’:
Under Article 2.2.7
of the protocol, all SADC states must ensure an independent judiciary
and impartial electoral institutions. But in Zimbabwe, Molokele wrote,
some half of all judges have left the Bench ‘as a result of the erosion
of the rule of law, harassment and the government’s contemptuous disregard
of court orders’. The current Chief Justice is a former deputy minister,
and the judiciary has yet to finalise disputes from the 2000 election.
Also:
‘An attempt was
made to set up an independent electoral commission. However, it is neither
constitutionally independent nor impartial since commissioners are hired
and fired by the president. The role of the new commission is further
compromised by the supplementary roles of such bodies as the Electoral
Supervisory Commission, Electoral Delimitation Commission and the Registrar
General’s office – all stacked with Zanu PF yes men.’
In terms of Article
2.2.5, SADC states are obliged to ensure equal access to the state media
by all political parties. However, there have been ‘no attempts’
to open up the public media to opposition parties, three independent papers
have been shut down, repressive media laws bar journalists from working
without a state-issued licence, and journalists disobeying new rules enacted
last month face up to two years in jail.
Under Article 2.1.1,
SADC states must ensure that all citizens are allowed to participate fully
in the political process. But, Molokele pointed out, millions of Zimbabweans
will be unable to vote because of selective new registration processes,
opposition supporters have reported problems obtaining identity cards
or accessing the voters’ roll, and there is a ‘shambolic’ voters roll,
which reportedly contains 800,000 dead people and which 5.7 million voters
out of a population of 11.4 million – an ‘improbably high ratio’,
says to the National Constitutional Assembly, an NGO advocating constitutional
reform, and one ripe for fraud.
Many voters might
not participate because of political violence, Molokele wrote, a situation
aggravated by Zanu PF’s use of 50,000 youth militias and liberation war
veterans who ‘have declared areas off limits to the opposition’.
New laws crack down on NGOs working in voter education. Public servants,
rather than independent observers, will monitor the election.
South Africa’s weighty
Financial Mail, expresses concern that SADC might ‘manage to
feed off such crumbs as the promise to use translucent ballot boxes, the
restriction of polling to a single day, and official claims that the electoral
commission is independent’. Also, it warns, on past experience there
is little chance that the region will confront Mugabe:
‘Yet, if the past
is any guide there is little chance than the troika will take Mugabe on.
SADC has always backed down. It is hard to see why it should be any different
this time…’
This column is provided
by the International Bar Association. - An organisation that represents
the Law Societies and Bar Associations around the world, and works to
uphold the rule of law. For further information, visit the website www.ibanet.org
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
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