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Special voting debacle – Bill Watch 31/2013
Veritas
July 25, 2013

6 days to elections

This bulletin will cover the special voting debacle.

ZEC’s application to the Constitutional Court to try and remedy it will be covered in the next bulletin.

Special voting debacle

A difference of opinion before the special voting day

ZEC chair says ZEC ready to roll

ZEC chairperson Rita Makarau said on 1st July that ZEC’s machinery was “ready to roll”.

Minister of Finance said election preparations were “a nightmare”, “a horror movie”

Finance Minister Tendai Biti on 9th July described preparations for elections as "a nightmare"..."We don't have the money for these elections and everyone knows it. It's a horror movie except that you are not watching the movie, you are part of it," he said.

Problems over financing the election

The Minister of Finance has said he is working on funding an election budget of $130 million, pared down from ZEC’s original estimate of $164 million. But he was having difficulties raising the necessary amount – money was so short that Government expenditure was being limited to payment of salaries only. By late last week the Ministry has managed to channel some funds to ZEC, but there was still a shortfall of $85 million.

As the Zanu-PF component in the Inclusive Government had refused to accept UN funding for ZEC because the UN wanted to send their pre-election assessment team in before agreeing to fund, the Minister of Finance said he had approached SADC for assistance, but so far nothing had been forthcoming. [Comment: This is hardly surprising as SADC had suggested to the inclusive government that the election date be moved till later and certain reforms be undertaken first]. The EU have threatened to withdraw some assistance to ZEC for equipment. The EU Ambassador said they said they had accepted that they could not bring in a full observer team and would have to be content with fielding five observers from the locally-based EU mission staff, but he deplored the barring of the two technical experts who would have merely provided support services to these observers.

Special voting: 14th and 15th July

The first test of ZEC’s readiness to “roll” came with the two days of “special voting” on Sunday 14th and Monday 15th July. Special voting days were provided to enable registered voters in the Army, Air Force, Police Force and Prison Service, and electoral officers employed by ZEC, to vote early if their official duties would make them unable to vote in their own constituencies on the regular polling day, 31st July.

A new procedure - The special voting procedure is a recent innovation. It was introduced by the Electoral Amendment Act of 2012, which inserted an entirely new Part XIVA [sections 81 to 81H] into the Electoral Act. There is also a set of regulations: the Electoral (Special and Postal Voting) Regulations, as gazetted in SI 84/2013 on 7th June.

What special voting replaced - In previous elections, registered voters in these categories had to resort to postal voting, and there was widespread criticism and distrust of the way Army, Air Force, Police and Prison Service authorities intervened in the process, with members of these forces having to complete their ballot papers in barracks or similar security force premises under the supervision of superior officers and generally under conditions incompatible with secrecy of the ballot. As a result postal voting by members of the security forces was almost universally seen as neither secret nor done with the freedom of choice to which all voters are entitled. Consequently the system enjoyed zero credibility, and the MDC parties insisted it be replaced when amendments to the Electoral Act were negotiated and agreed by the GPA parties in 2011-2012.

What special voting involved - The relevant statutory provisions require special voting to take place on a day or days designated by ZEC which must be at least 16 days before the general polling day; so the 14th and 15th July were the latest days allowed by the law for the process. This 16-day [or longer] period is intended to give ZEC enough time to get the special voting ballot papers [in their special envelopes – see below] distributed to the relevant constituencies and wards in time to be included in the counting of votes at ward level, along with the votes cast at regular polling stations on 31st July.

Those wishing to utilise the facility had to apply to ZEC on a prescribed form and, if their entitlement to a special vote was accepted by ZEC, ZEC then authorised them to cast their ballots by the special voting procedure. Each duly authorised special voter then had to cast his or her vote on one of the two special polling days at the special voting centre indicated by ZEC when granting authorisation. Waiting for each authorised voter at his or her special voting centre would be three unmarked ballot papers [for Presidential, Parliamentary and local authority elections] in an envelope showing his or her constituency and ward.

Special voting centres had to be designated by ZEC and be away from police stations, army camps and other security force premises. And they had to be managed by ZEC [not by security force authorities] on the same principles as apply to all polling stations on the general polling day. Police would play no greater role at the special polling centres than at polling stations on the general polling day. An authorised voter wanting to cast his or her special vote would go to the designated special voting centre, and on establishing his or her identity, be given the three ballot papers and the envelope supplied by ZEC inscribed with his or her constituency and ward, and go to a screened voting compartment to mark the ballot papers in secret. Having marked the ballot papers, the voter would place all three ballot papers in the envelope, then seal it and place it in the ballot box.

Candidates and/or their election agents and accredited observers were entitled to observe the entire process from pre-polling sealing of the ballot box to sealing of the package containing the envelopes described below.

At close of polling the ballot box was opened, and the envelopes in it counted, but not opened, and then sealed in a package to be conveyed to the Chief Elections Officer at the ZEC Command Centre in Harare, together with an accompanying note from the special voting officer in charge of the voting centre recording the number of envelopes placed in the package, to enable checking of the package’s contents later.

When are the envelopes opened? - The sealed packages containing the envelopes from the special voting centres, having been conveyed by secure means to the Chief Elections Officer at the ZEC National Command Centre in Harare, were opened and the envelopes in them sorted for distribution, still unopened, to the constituencies and wards marked on the envelopes, with accompanying notes recording the number of envelopes sent to each ward. This centralised opening and sorting of packages exercise started at the National Command Centre, in the presence of candidates and their agents, on 19th July and was due to be completed on 24th July, with distribution to constituency and ward level following immediately.

Sealed in special ballot box - At least two days before 31st July, notice must be given to candidates and their agents, and observers, of the time and date when the ward elections officer will seal the special ballot box. [This has been done: daily newspapers of 24th July published lengthy ZEC supplements giving notice that in all 1958 wards this exercise will start at 10 am on Friday 26th July and listing the locations where it will take place.] At that time the ward elections officer must show those present the empty ballot box, then seal it and immediately place in it, still unopened, all the envelopes received from the Chief Elections Officer. Agents and observers should ensure the number of envelopes corresponds to the number recorded on the accompanying note sent to the ward with the sealed envelopes. The ward elections officer must then “make adequate provision for the safe custody of the ballot box”, with the envelopes inside and its aperture sealed [Electoral Act, section 81F(12)].

Opening of special ballot box - Finally, and only after close of polling on 31st July, the special ballot box must be opened, the envelopes inside must be opened and the ballot papers inside the envelopes must be counted and the figures included in the ward return along with the figures transcribed from the polling station returns. All this must be done in the presence of candidates or their agents and observers who wish to be present.

MDC-T Court challenge to the special voting process

According to initial reports, ZEC authorised approximately 87 000 persons to cast special votes [140 Army, 69 000 Police Force, 2 000 Prison Service, 15 000 ZEC]. The huge figure of 69 000 for the Police Force naturally raised suspicions when the co-Minister of Home Affairs [responsible for the police force] and the Minister of Finance [whose Ministry manages the police payroll] said the authorised official ZRP establishment was just over 40 000. ZEC said it had to take ZRP assurances on ZRP numbers on trust. MDC-T was not satisfied, and its chairperson Morgan Komichi went to the High Court seeking an order nullifying the special voting procedure. Closed hearings took place in chambers before Judge-President Chiweshe last week, with the lawyers instructed not to divulge any details, and the Attorney-General being requested to brief the court on ZRP numbers. On Friday 19th July Justice Chiweshe dismissed the MDC-T application, saying his written reasons for judgment would be handed down later; they are still awaited.

Special voting fiasco

As it turned out, on the 14th and 15th July, ZEC failed miserably in its first test, raising serious doubts about its capacity to handle a potential 6 million plus voters in only one day when it comes to 31st July. The special voting was a fiasco. Voting centres failed to open on time or at all, equipment and ballot papers and ballot envelopes arrived late or not at all. At some centres crowds of frustrated special voters reacted with behaviour unbecoming members of disciplined forces. In one incident reported in the State-controlled press, spectators were treated to the spectacle of the police riot squad being deployed to quell unruly police officers. In another – Mount Pleasant – voters expressed their displeasure by smashing windows at the voting centre. There have even been reports of senior police officers taking over from ZEC officials and supervising voting.

Comment: Is lack of discipline in the disciplined forces the simple explanation for these outbreaks of misbehaviour by frustrated would-be special voters? Or were they, having welcomed this first-ever opportunity to vote away from their barracks and supervision of commanding officers, and now seeing this opportunity being taken away from them, protesting at being disenfranchised in this fashion, and in circumstances suggesting to some that what was happening was actually designed to limit their free vote?

How many special voters actually voted?

Over 40% of the authorised special voters were unable to cast votes. According to the latest figures from ZEC, 63 268 were authorised to cast special votes, but only 37 108 persons actually managed to vote.

Comment: In view of the suspicions that the special voting fiasco has aroused, it is important that these figures be verified as genuine by independent observers.

ZEC’s explanation for failure

ZEC has explained that the special voting timetable was very tight, with progress affected by, among other factors:

• late determination of nomination appeals by the Electoral Court [last decision 11th July] [with a suggestion from the ZEC deputy chair, later taken up the police chief spokesperson, that this was aggravated by a number of frivolous and unnecessary appeals by MDC-T [see comment below]
• delays in getting the necessary information for printing of ballot-papers from the additional candidates whose success in their appeals to the Electoral Court necessitated last-minute changes to the ballot-papers
• power-cuts and equipment failures at the printers contracted to print the ballot papers, when the timetable was so tight that everything depended on the printing jobs being completed without delays.

Comment: Surely ZEC should have anticipated the possible difficulties of preparing for an election in so short a time – especially with a new procedure for special voting having to be finished, and then, instead of merely going along with the tight timetable imposed on it by the President in his election proclamation, it should have asserted its constitutional independence and grasped the opportunity, afforded by the application for an extension of the 31st July election date, to inform the Constitutional Court that it needed and would welcome the additional time that an extension would allow. There will be other new procedures, such as those involved in the new system of partial proportional representation, on the general polling day, affecting over 6 million voters

Having accepted a tight timetable, ZEC should have ensured that ballot papers were digitally prepared, based on the outcome of the nomination courts, and made contingency plans for immediate alterations based on appeals to the Electoral Court and then the outcomes of those appeals? [Note: The frivolous appeals accusation against MDC-T has not been substantiated. As the appeal results show [see Bill Watch 30/2013 of 18th July], disappointed would-be ZANU-PF candidates also exercised the right to appeal against nomination court decisions].

In next Bill Watch

ZEC admits that this debacle was its responsibility – not the fault of the special voters who could not vote. And it has assured those special voters that they will still be able to vote on 31st July. This assurance has raised legal and constitutional issues and resulted in another Constitutional Court case to be heard on 26th July – to be covered in the next Bill Watch.

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