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Too late for a free election in Zimbabwe
Claude Kapemba
February 20, 2005

http://www.zwnews.com/issuefull.cfm?ArticleID=11276

In Zimbabwe the problem is very different. There is simply a deliberate attempt not to do the right thing

But SADC could still salvage something by looking through the smoke and mirrors and having it postponed.

It will not be possible to hold fair and credible elections in the current constitutional and legal framework in Zimbabwe. The best thing the Southern Africa Development Community (SADC) advance team of legal experts which is - or was? - supposed to go to Zimbabwe to assess the electoral system could do would be to recommend that the Zimbabwean government postpone the elections. This would allow the necessary reforms that have just been introduced to be institutionalised, and the verification of the voters roll by political parties and voters to take place. The high court in Malawi requested the Malawi Electoral Commission to postpone last year's presidential election to allow for the verification of the voters roll. It did so, and there is no reason why the same cannot be done in Zimbabwe.

There are inconsistencies, gaps and potential conflicts within the current legislative framework that need to be clarified before Zimbabwe can hold credible elections. The laws and institutions do not accurately reflect the political reality of the country. The ruling Zanu PF party continues to have a monopoly on decisions about electoral matters. Recent reforms, including the creation of an Independent Electoral Commission (IEC), electoral court and other electoral procedures, will make very little difference. While the government has created what it calls an independent electoral commission to supervise and organise elections, previous structures - the Electoral Supervisory Commission, the registrar-general, the Election Directorate and the Delimitation Commission - remain in place and are fully functional. The continued existence of this quartet structure, side by side with the new IEC, will cause confusion and tension and make it hard for anyone to observe what is actually happening in the management of elections. Zimbabwe has also kept intact legislation such as the Public Order and Security Act and the Access to Information and Protection of Privacy Act, which are inimical to freedom of expression and the press respectively.

What effect could a SADC delegation of lawyers from South Africa, Lesotho and Namibia - countries that form a troika in the regional organ on politics, defence and security - have on the electoral process in Zimbabwe? The brief of such a team would be to investigate how Zimbabwe is complying with SADC principles and guidelines and report to SADC heads of state. But does the Zimbabwean government take these guidelines seriously? Patrick Chinamasa, the minister of justice, seems to regard them as a political instrument that countries must follow to upgrade their electoral systems, rather than as a legal instrument. Indeed they are not legally binding and offer no legal recourse to SADC if a member does not observe them. What, then, could SADC do if Zimbabwe did not comply with its guidelines and principles?

What Chinamasa might have missed is that the principles have opened space for political recourse if SADC deems it worthwhile to intervene in a member state that does not comply with them. This is why, I think, it would not be too late for the SADC advance team to go to Zimbabwe, even at this late stage. The political options available to SADC to sanction a country that does not comply could include expulsion from SADC, and if the infractions are deemed serious enough it could even contemplate imposing economic sanctions on a member state. Chinamasa also, in an effort to diminish the importance of these principles and guidelines, said they were simply a road map to guide the democratic process in the various SADC countries, and could not be applied uniformly across the board because countries were at different levels of democratic development.

This might suggest that the problem with elections in Zimbabwe is the same sort of structural weaknesses that the Democratic Republic of Congo or Angola face. But in fact in Zimbabwe the problem is very different. There is simply a deliberate attempt not to do the right thing. For example, Zimbabwe had a unique chance to introduce changes to the constitution and the Electoral Act after the 2002 elections. It is not clear why these reforms had to wait until SADC came up with guidelines.In fact, the SADC guidelines are not the first. The African Union has guidelines that member states are supposed to follow and apply and which are similar to SADC's. Further, electoral reforms in Zimbabwe have been called for since 2000 and recommendations - including the ones proposed in the SADC guidelines - had already been articulated by the opposition and civil society, regional and local.

Zanu PF knew it had no option but to introduce changes to the administration of elections, and there was no need to wait until just two months before the elections to do so. The Zimbabwean government deliberately delayed electoral reforms in a calculated move to ensure there would not be enough time for the opposition to scrutinise the electoral process. The government seems to be applying the same tactic in dealing with SADC. Consensus on the rules of the electoral game is crucial for creating the basic atmosphere for a fair election. A dialogue on these rules between the main political parties, Zanu-PF and the Movement for Democratic Change, held early enough to make a difference, would have gone a long way towards establishing confidence in the system and reducing tension between the parties and among their supporters.

*Claude Kapemba is research manager of the Electoral Institute of Southern Africa and writes in his personal capacity

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