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Electoral reform, NGO Bill, and the Zimbabwean 2005 parliamentary elections
International Bar Association (IBA)
IBA Weekly Column on Zimbabwe - No 055
November 08, 2004

The President's announcement that the current session of Parliament of Zimbabwe would consider amendments to the Electoral Act ahead of next year's Parliamentary elections, although welcome, has been met with scepticism by the majority of Zimbabweans. Generally, Zimbabweans now associate elections with relentless ruling party propaganda on all State media, or vigorous applications of repressive laws such as the Public Order and Security Act and the Access to Information and Protection of Privacy Act and of course an increase in violence against all perceived political opponents.

The general belief that Government's hand has been forced to amend the country's electoral laws by leaders in the region has gained credence with the approval by the Southern African Development Community (SADC) Heads of States of the rules, standards and criteria regulating democratic elections in the region. But the electoral law reforms proposed by the Zimbabwean Government since it acceded to the SADC protocol raise serious questions which point to the challenges of implementing the reforms in the existing context. Namely, are the electoral reforms that have been proposed really in accordance with the SADC basic principles and guidelines? Even if the Government complies with such guidelines through reform of electoral law, is it possible to apply these in the vacuum that currently exists in Zimbabwe? Can democratic electoral laws be applied in a country with no democratic institutions in all other spheres of life and politics? How would any transgressions from these basic electoral laws be punished in the absence of an independent judiciary willing to enforce such laws? Would any amendment in the electoral laws result in a change of behaviour of law enforcement agents who routinely do not arrest culprits involved in electoral violence against opposition party supporters? And given the complimentary roles that civil society plays on issues of good governance, democracy, transparency and checking any abuses and excesses, is there a contradiction in liberalising electoral laws whilst tightening up the screws on civil society?.

Any attempts at liberalising Zimbabwe's electoral laws are to be commended as a step in the right direction. However, the environment in which such laws will be implemented has to be conducive to the holding of free and fair elections as envisaged by the SADC guidelines and principles. A look at the proposed amendments does not inspire much confidence and it is doubtful that such amendments even meet the basic guidelines adopted by the SADC summit of Heads of State in Mauritius recently. Indeed, the Zimbabwe Election Support Network, whilst commending the Government in the initiatives to amend the electoral laws, points out that such amendments must of necessity include the introduction of ad hoc electoral tribunals, transparent and democratic processes of appointing an independent electoral commission whose members would be answerable only to Parliament. It also points out the need for national consensus on how best to institute and achieve electoral reforms that will be acceptable to all Zimbabweans.

Liberal and democratic electoral laws cannot be applied in an environment that stifles democratic principles and all other spheres of life. A free, varied and vibrant press is absolutely crucial in the attainment of free and fair elections. For as long as the press is under the yoke of AIPPA, free and fair elections cannot be held in Zimbabwe, particularly in the rural areas, where the public only has access to propaganda in the State media, particularly through radio given its wide coverage. Such media has relentlessly attacked the opposition in terms that can only induce fear in the minds of the rural electorate. It would have to take an equally incessant campaign using the same media to convince the rural electorate that the propaganda they have been subjected to for the past four and half and years is no longer part of Government policy. It would require access to the Government media of enormous proportions by the opposition and civil society to seek to convince the electorate that no danger attaches to open support of opposition parties anymore. Given the attacks even on senior ruling party members, including the recent attack on Morgan Tsvangirai at a rally, it is difficult to believe that a rural voter would feel sufficiently confident to support an opposition party without fear of reprisals. The five months or so remaining before the next elections is woefully inadequate to change the electorate's mindset ahead of the next general elections.

Even if this possibility existed, it is difficult to believe that the powers that be, particularly those in charge of the public media, would give access to the opposition parties and civil society to spread whatever messages they might have through the public media. Even if limited access were to be given, opposition party material would most likely be subjected to serious editing by the State media and whatever message they might have would be so mutilated by the editing process that it would be of no beneficial value to the intended audience. However liberal the electoral laws are, these will be of no use if the vehicles of communication remain as they are. A repeal of restrictive media laws such as the Broadcasting Services Act, AIPPA, etc, would become a necessary condition to any reforms in Zimbabwe's electoral system. The restoration of media plurality by allowing newspapers such as The Daily News, and The Tribune to resume publication would have to be done immediately, and the Government has an immediate window on this by withdrawing all its opposition to the applications and appeals that are currently pending before the courts by both newspapers. Independent broadcasting by independent operators such as Capital Radio, Voice of the People and other community radio stations would also need to be restored immediately. In short, freedom of the media and expression would have to be restored to mean not just the freedom of State media columnists to abuse their opponents at will, but should mean freedom of expression as defined in all international and regional declarations, protocols, instruments and conventions.

The Non-governmental Organisation Bill (NGO Bill) awaiting presentation to Parliament would also need to be immediately revisited as it clearly does not bode well for the holding of free and fair elections as envisaged by the SADC guidelines. It is not in dispute that NGOs play a critical role in the monitoring of the electoral process long before observers come a day to two before the actual polling. The proposed NGO Bill contains many provisions that are anathema to the holding of free and fair elections. The Bill would make it impossible for NGOs to continue monitoring the political situation in Zimbabwe on a day to day basis long before the violent business of campaigning commences for the next election. The need to register NGOs is a clear violation of the constitutionally guaranteed rights of freedom of expression, freedom of assembly and association and we have seen how the registration requirement has been abused in the media to shut down independent newspapers.

The composition of the proposed NGO Council is so skewed that there might as well be no Council at all. A council with nine Government employees with only five NGO representatives who are not necessarily elected by the NGOs themselves can only mean that the Government will determine which NGO gets registered and there can be no doubt that NGOs that have closely followed issues of good governance, human rights, the conduct of elections, political violence, etc, would ever see the light of day in terms of registration. As if this was not enough, the Bill has an even greater contradiction in its provision that no NGO shall receive any foreign funding or donation '.....to carry out activities involving or including the promotion and protection of human rights and political governance'. It is difficult to envisage an electoral process that does not involve or include human rights and governance. It would be illegal for an NGO to receive funding from the African Union, SADC, the New Partnership for Africa's Development (NEPAD) Secretariat or any of the regional governance bodies that have been instrumental in the adoption of the guidelines on elections in the region for purposes of monitoring an election in Zimbabwe as this would clearly contravene Section 17 of the proposed NGO Bill. With such patently unconstitutional restrictions, it is impossible to conduct elections in Zimbabwe in accordance with the principles approved by the SADC Heads of State at their recent summit in Mauritius.

There are many other provisions in the proposed NGO Bill that clearly contradict the basic principles on free and democratic elections as approved by SADC and these include provisions relating to local and foreign NGOs. Foreign NGOs whose objects involve governance issues may not be registered so that international and regional NGOs that have traditionally collaborated with Zimbabwean NGOs would be barred from operating in Zimbabwe if it is deemed that their operations are on issues of governance, yet elections deal solely with governance. With the current economic crisis in Zimbabwe, the Bill's prohibition of foreign donations for NGOs dealing with governance and human rights issues can only mean that the next election will not be properly monitored and assessed due to lack of funding as the only Zimbabweans who can afford funding NGOs are in the very ruling party that is putting forward the proposed Bill.

The absence of an independent judiciary also means that even if the proposed amendments were effected, there would be no shortage of judges that would narrowly interpret provisions of the Act to ensure that the status quo remains using the same old tricks. Without a vibrant independent judiciary that is accountable to the people, liberal laws mean absolutely nothing and this would apply to any reformed electoral Act. It is difficult to imagine the majority of members of the current bench ending their four year old collusion with the ruling party in favour of a liberal interpretation of laws that would seek to protect basic freedoms. If such interpretation were to be adopted, it would most likely be delivered long after the next elections to be of academic relevance at least in so far as the next elections are concerned. Equally, the need for a change in the mindsets of law enforcement agents would need to be immediate and again, this is difficult to imagine given the fact that breaches of electoral laws in the last elections remain unpunished and perpetrators of serious crimes in the name of elections in 2000 and 2002 have been rewarded with promotions.

For as long as law enforcement remains selective, Zimbabwe cannot have free and fair elections as envisaged by SADC and the best electoral law in the world will make no difference to the next election in Zimbabwe. The time left before the next election is so short as to be incapable of providing a platform for meaningful changes, even if the political will for such change existed. Zimbabwe is unlikely to have a level political field conducive to free and fair elections so long as the current repressive laws remain unchanged. Equally, the current constitution, which concentrates appointments to key institutions such as the judiciary, on the President, would need to be completely overhauled and replaced before one can talk of free and fair elections. All current crucial institutions that go hand in glove with democratic principles would have to be revamped and reconstituted using democratic and transparent ways of appointment based on suitability for the particular office as opposed to political patronage. However, it is hoped that the proposed changes will open the way towards the sustainable and long term process that will see all democratic institutions restored for the endorsement of basic rights by all Zimbabweans.

* 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

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