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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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