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Hoodwinking SADC
Beatrice Mtetwa
Extracted from International Bar Association, Zimbabwe Election Focus
March 25, 2005

"It is ... difficult to understand President Mbeki’s endorsement of the legislation when it is clear that some of the processes ... fall short of the scrupulous implementation advocated in the SADC Principles and Guidelines."

President Mbeki’s statement during the first week of March that he did not know what it is that Zimbabwe had not complied with in the SADC Principles and Guidelines startled many in Zimbabwe, coming as it did before observers had issued their verdict. It has been seen as a clear attempt to try and influence the observer reports ahead of the elections. To state that Zimbabwe has complied even before implementation of the legislation, is to put the cart before the horse.

Commission neither impartial nor all-inclusive
The constant reference to an ‘independent’ electoral commission in the legislation is extremely misleading as the appointment procedures of members of the Zimbabwe Electoral Commission (ZEC) do not meet the ‘impartial all-inclusive, competent and accountable’ requirement of the SADC Protocol. The chairperson of the ZEC is appointed by the President on the advice of the Judicial Services Commission, whose current composition has a majority of Presidential appointees. Whilst the Chairman’s competence may not be in doubt, it is doubtful that he meets the impartiality and all-inclusive test because the criteria used to appoint him is not known and was only determined by persons closely associated with the ruling party with no input from civil society, the opposition and other stakeholders. If there was to be a break with the past, it was absolutely crucial that appointees be transparently selected through an all-inclusive process that would result in independent experts running the election.

Electorate’s interests ignored
In my view, the provision in the Act for an ‘impartial’ and independent Commission becomes a mockery if the selection procedure is flawed. This has become evident in the new Commission’s response to the first appeal against its decision, filed in the Electoral Court. The ZEC made startling submissions for a body that must exercise strict impartiality in the exercise of its functions. They include the incredible suggestion that the Applicant, Roy Bennett, who was sentenced to a prison term by Parliament for contempt of Parliament, ought to have had his name removed from the voters’ roll upon being sentenced to a prison term! This is against a background where prisoners in South Africa with criminal convictions have been declared entitled to vote. A further argument made by the ZEC was that allowing the appeal by Roy Bennett would inconvenience the other candidates, by which was

meant the Zanu-PF candidate. The interests of the electorate, whose rights ought to be of paramount concern to the ZEC, were not even referred to in its submissions.

Criteria for appointments not transparent
The SADC Protocol also recognizes the right to challenge the electoral processes through competent, impartial and independent legal bodies. Whilst the new Electoral Act makes provision for the establishment of an Electoral Court, the appointment of judges to it remains in the hands of a Presidential appointee.

Resources scarce for Electoral Court
The SADC Protocol also requires that adequate resources be made available if democratic, free and fair elections are to be held. The ZEC does not itself determine its budget, and neither does it have any control over how much it will receive as the amount is determined by Parliament in its discretion. At a practical level, we have already seen the effect of the lack of financial independence in the operations of the Electoral Court. At the time of the hearing of the first electoral appeal before the Electoral Court in Harare, the court had no infrastructure of its own and the judge had to rely on the normal High Court infrastructure, which is itself severely strained. If the Electoral Court is to operate efficiently and with the urgency required in election disputes, it is absolutely crucial that the court be given the necessary resources.

Too little, too late
Although new legislation has been promulgated, this does not, in my view, have any impact on the elections scheduled for 31 March, 2005. It is a question of too little too late, meant to hoodwink SADC into thinking that Zimbabwe has complied with the SADC Principles and Guidelines. It is therefore difficult to understand President

Mbeki’s endorsement of the legislation when it is clear that some of the processes provided for in the two Acts referred to fall short of the scrupulous implementation advocated in the SADC Principles and Guidelines and when the little implementation seen to date leaves a lot to be desired. These two pieces of legislation, even if they fully complied with the basic requirements of the SADC Principles, will not translate into a free and fair election in Zimbabwe as they have been brought into operation so late in the day they are not likely to have an impact on the voters’ roll, which is in a shambles and was not prepared by the ZEC, or on voter education, logistical support and other important elements of this election.

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