Architects of Electoral Reform: A briefing on the role of Zimbabwe EMB in electoral reform

Policy Brief August 2015

Key issues

  • What are the priorities for electoral reform in Zimbabwe?
  • Who initiates the reform process in Zimbabwe?
  • Challenges for electoral reform in Zimbabwe
  • The role of ZEC in electoral reform in Zimbabwe
  • International best practice
  • Recommendations
  1. Background

Electoral reform in Zimbabwe since the July 31, 2013 harmonized elections has been piecemeal, half-hearted and overly simplistic. Piecemeal in that it has not been implemented fully exactly two years after the constitution was adopted and elections were conducted. It has been half-hearted because there seems to be little political will to push reform, particularly on the electoral and political environment. Lastly, it has been simplistic as there seems to be slow and cosmetic legislative movement in re-aligning laws to the new constitution without paying due attention to implementation and enforcement mechanisms.

Rather, electoral reform must be holistic, whole hearted and comprehensive. It must be implemented on three fundamental fronts; legislative, environmental and administrative. Holistic electoral reform refers to reform that covers legislative, environmental and administrative issues. Whole hearted reform refers to full implementation not smoke screening the reform agenda. It follows then, that whole hearted reform requires cohesion, stakeholders’ engagement and consultation, political will and appropriate rule of law anchored by checks and balances of the state system.  This will make reform comprehensive. The Electoral Management Body (EMB), the Parliament of Zimbabwe, the Ministry of Justice, Legal and Parliamentary affairs and civil society all have a role to play in ensuring comprehensive electoral reform.

Pursuant to the ideals of inclusivity, information accessibility, irreversibility and comprehensiveness, the ERC seeks to feed into the electoral reform agenda. The electoral reform agenda must take a front row in the democratization process of any nation. The role of the Election Management Body (EMB) in this agenda has been subsided for several reasons. Among them; the constitution does not give a clear mandate to the body to initiate or play a role in the legislative reform agenda of the country, the electoral act also does not provide for such a mandate; there are no provisions for the EMB to make statutory regulations that are binding legally and finally, the EMB is somewhat reliant on the executive for funding and the making of laws governing elections in Zimbabwe.

The legal framework has left a lot of room for political actors (in the executive of government and political parties) to initiate electoral laws and to push for reform. This has made the laws politically subservient. Moreover, political will becomes a vital cog in implementation of reform. In a society where one party dominates the political field, reform sometimes takes the back seat. While, political will remains a fundamental element in any reform process, it must never be allowed to hold public and democratic will at ransom. Instead, the EMB must be given enough space and role to initiate electoral reform in consultation with stakeholders.

  1. Introduction

The electoral reform agenda comprises of changes to the administrative, environmental and legislative frameworks. It must be thorough and comprehensive. A focus on any one of the three thematic areas will necessarily render the process halfhearted. This brief will analyze what exactly the electoral reform process entails in Zimbabwe in a bid to streamline the role of the EMB. This will be done by citing priority areas for reform and possible hindrances to reform. Fundamentally, the brief will zero in on the role envisaged for the EMB in electoral reform, the limitations faced and the recommendations for enhancing this capacity. International best practice, with regional case studies of South Africa and Sierra Leone will form part of the critical analysis and will essentially inform the recommendations thereof.

  1. The road to reform

Electoral reform in Zimbabwe has come a long way. From independence, “the Registrar-General of Elections was actually the key player in the electoral process. A public servant, he was responsible for almost the entire electoral process from the registration of voters and provision of electoral staff to the declaration of election results and the custody of election materials (Zimbabwe Government, 1996). These extensive functions made the Registrar-General very central, and therefore powerful, in the entire electoral process.” [1]Sachikonye. In 1990, an elections directorate was created and was manned by public service commission employees. According to Sachikonye “It coordinated the activities of ministries and departments in electoral matters, gave instructions and made recommendations to the Registrar-General in regard to the exercise of his functions under the Electoral Act. The establishment of the Election Directorate increased the number of players in the electoral process thereby splitting the responsibility further. The independence of the Election Directorate, by virtue of being part of state structures, was suspect.”

Initial changes were recorded in 1987 as Zimbabwe sought to deal with the proportional seats allocated to the white minority as part of independence negotiations. In the same year the country introduced the post of executive president, two vice presidents and increased the term of the president to 6 years. This was followed by the scrapping of senate in 1989. Specific to electoral reform, Sections, 59, 60 and 61.These provisions dealt with the Delimitation Commission, delimitation of constituencies and Electoral Supervisory Commission respectively. The import of their changes was to remove the need of approval to simply consultation of Chief Justice or Judicial Services Commission when appointing the above mentioned commissions. This effectively eroded the necessary checks on presidential powers with relation to elections.

In 1997, there was pressure from the National Constitutional assembly (NCA) for a new constitution. The government reacted by establishing a Constitutional Commission (CC) which established a draft constitution. This was rejected in a referendum. Further attempts to electoral reform, where seen in 2005 when senate was brought back. Prior, Parliament had passed the Political Parties (Finances) Act (2001), the Electoral Act (2004) and the Zimbabwe Electoral Commission Act (2004). In 2008, there were changes to the Electoral Act allowing for a presidential winner to have at least 51% of the vote in order to be declared winner and making provisions for a run-off. These were among more legislative changes. By 2008, 19 amendments had been made to the constitution, with a large number affecting elections. In the period 2009-2013, Zimbabwe went through a process of writing a new constitution. This was adopted in April 2013. However, the electoral framework it provided could not be used as the election was now due. Presidential powers were called in to fill the gap and these regulations were used to conduct the elections on July 31, 2013. Beyond 2013, there have been attempts to reform through aligning the laws to the new constitution. The pace has been slow and the changes have left a lot to be desired.

  1. Is reform necessary?

The need for electoral reform is more urgent than ever. As the country moves towards 2018 harmonized elections, there are several fundamental changes still required. As already highlighted these are legislative, environmental and administrative. Reform so far has largely taken the legislative route. The ERC contends that there is more reform needed on the environment and administration. Below are some of the priorities for electoral reform in Zimbabwe.

  1. Priorities for Electoral reform in Zimbabwe
  • The environment

The electoral environment has played a fundamental role in undermining the credibility, freeness and fairness of elections in Zimbabwe since independence. A culture of violence, intimidation, gerrymandering and unfairness dominates the environment. Violence and intimidation have been present during elections beginning 1980. In recent years, 2008 run-off presidential elections proved to be most violent.

The role of chiefs and other traditional leaders has undermined the credibility of elections. It has undermined the Code of Conduct for political parties and candidates. Voters, particularly rural, are intimidated through traditional leaders who are instructed by ruling party bigwigs to ensure their villagers vote in a certain way. Villagers are threatened with all sorts of retribution ranging from being chased away from the village to not getting drought relief earmarked for their communities.

Vote buying has also been prevalent in the electoral environment of Zimbabwe. Politicians entice and bribe voters through several means including grading of roads, giving out agricultural inputs and food just before elections.

  • The legal framework

The legal framework for elections in Zimbabwe has managed to attract much of the attention of policy makers. However, it still falls short of required international standards. The introduction of ZEC in 2004 marked a great step in the positive direction of establishing an independent body to run elections. However, the composition of the EMB was severely questioned in particular, staffing of former and serving military members. The 2008 election was a major dent in the professional record of ZEC. It took the EMB a month to release results of the elections.

Basing on the SADC guidelines for free and fair elections leaves our framework weak as the guidelines are due for amendment themselves.

  • The administrative

There have been important changes to the administrative nature of elections in Zimbabwe particularly beginning with the establishment of ZEC in 2004. This signified a step towards an independent EMB. The reconfiguration of the body in 2009 further enhanced its independence and credibility. However, more still needs to be done particularly on improving its independence and renewing tainted senior staff in ranks. Some of the legislative challenges will be discussed as the brief interrogates the role of the EMB. Essentially, they point to the capacity of the EMB to make fundamental input to electoral reform in the country.

  1. The role of the EMB in electoral reform

The Election Management Body (EMB) in Zimbabwe, the Zimbabwe Election Commission (ZEC) has limited powers for initiating reform particularly the environment and legislative framework. Section 238 of the Constitution of Zimbabwe provides for the establishment of ZEC. Section 192 of the Electoral Act provides regulatory powers of the Commission. These remain largely administrative. Section 192 (6) of the same Act further requires them to get approval from the Minister before the regulations can have effect. Section 12 of the Electoral Act, requires ZEC to get ministerial approval before accepting any donation. Section 192(6) and Section 12 have direct effect on the independence of the body. This defies Section 235 of the Constitution of Zimbabwe which asserts the independence of the independent commissions.

This has meant that ZEC has little room to push to act independently, let alone push for or initiate electoral reform. The Electoral Commissions Forum of SADC[2] countries states the following; independence of action, impartiality, integrity, transparency, financial probity, accountability, professionalism, service mindedness, equality of access, and sustainability as principles and guidelines on the independence of EMBs in the SADC region. Therefore, given the limitations of Section 192 (6) and Section 12 of the Electoral Act, ZEC’s capacity to play its role effectively is undermined.

It is the position of this paper that ZEC must strive to effectively play its role even under strenuous circumstances through positive interpretation of some legislation. Section 157 (4) of the constitution states that;

“No amendments may be made to the Electoral Law, or to any subsidiary legislation made under that law, unless the Zimbabwe Electoral Commission has been consulted and any recommendations made by the commission have been duly considered.”

This section provides for the consultation of ZEC with regards to electoral law amendments. It therefore allows ZEC to input into legislative electoral reform upon consultation. While commendable, this provision only makes ZEC a subsidiary to electoral reform agenda. Furthermore, it leaves room for the disregard of ZEC input. The due consideration of their input does not make their input compulsory. Essentially, their input might be ignored. However, one might view this section to effectively leave room for ZEC to initiate laws for the consideration of parliament. It is however, not succinctly so. The innovation of ZEC is called into action if this section is to be used from such an angle.

Effectively, there is little room for ZEC to initiate legal reform. ZEC remains subservient to the executive and parliament in as far as legal reform is concerned. As shall be shown in the next section, this role is limiting if compared with other regional best practices. It is important that the constitution allows for independence of ZEC and improves their power to push for legal reform.

Administratively, ZEC is allowed by Section 192 of the Electoral Act to make regulations governing their administration of elections. Firstly, this is limited by the fact that they are only making regulations as governed by laws they had no input in. Secondly, by the fact that they still need the approval of the Minister of Justice, Legal and Parliamentary Affairs. This seriously questions the independence of the body. While there is room to be innovative under Section 192, the ministerial oversight dampens any hope of this happening.

The environmental election framework needs even more work. The input of ZEC to improving the environment is not succinctly provided for. While the Fourth Schedule of the Electoral Act attempts to shape electoral behavior of actors, it is hardly enforceable by ZEC. The Code of Conduct for Political Parties and Candidates is a good example of how ZEC can impact the electoral environment if there was a framework for them to enforce the code. For example, in recent by-elections, particularly in rural areas such as Chirumanzu-Zibagwe, Hurungwe West and Tsholotsho North, cases of intimidation, violence, vote buying and abuse of office by traditional leaders were well documented. The EMB did little, if anything, to reprimand political actors, their parties or traditional leaders. Moreover, had they reprimanded them without change, they would need to rely on other state forces for implementation. In Hurungwe West, ZEC called on the Zimbabwe Human Rights Commission (ZHRC) and the Police to investigate without any immediate action to force perpetrators to change or stop. The ZHRC recently published its findings detailing electoral malpractice in Hurungwe West. However, there is no framework for ZEC to act on the findings.

  • International Best Practice; the case of South Africa and Sierra Leone

South Africa

The South African case has a wide range of examples of how the Independent Electoral Commission (IEC) instituted several legal electoral reforms especially towards enfranchisement of the Diaspora and prisoners. According to Bakken[3] (2015) the IEC of South Africa had followed up the Constitutional Court ruling on the “Richter case”, allowing for those in the Diaspora and registered to vote to exercise their right by pushing for legal changes that allowed them to register those in the Diaspora to vote. This saw the revision of the Electoral Act 1973 allowing for;

“The right to register and vote for South Africans living abroad; and the right to register and vote for citizens serving prison sentences”.

While not all proposals by the IEC are agreed on, they are at least considered and debated by parliament. Some proposals, for example on e-voting, electoral system reform and party finances have been debated and put on hold or rejected. Furthermore, reform issues are heavily consulted upon with all stakeholders particularly political parties. This allows for robust discussions on continuously improving administrative, environmental and legislative reform issues.

The Electoral Commission Act 51 of 1996 (j) empowers the Commission to “continuously review electoral legislation and proposed electoral legislation, and…make recommendations in connection therewith”. Outside legal framework, the IEC in its vision for 2018, challenges itself to “continuously improving the legislative framework”. The proactive nature of the IEC makes it ideal for electoral reform agenda to succeed.

Sierra Leone

The West African country is a young democracy emerging out civil war. Its National Election Commission (NEC) has made significant strides in pushing for electoral reform, albeit, exponentially. According to [4]Conteh et al (2015), the NEC is given powers to make regulations by statutory instrument through Section 33 of the constitution and Section 166 of the Public Election Act 2012. Unlike in Zimbabwe, where the Minister will have to approve, in Sierra Leone they have to be “published in the Gazette” and “laid before parliament” and “shall come into force at the expiration of a period of twenty-one days of being so laid…”

Legal reform instituted in Sierra Leone since 2005 was initiated by the NEC in consultation with the Law Reform Commission (LRC), Office of Attorney General and Minister of Justice and the Law officers department. In this case, while consultation with the executive remains necessary, initiation of laws can also begin with the NEC.

Consultation has proved to be important in the reform agenda of Sierra Leone. Stakeholders including civil society, political parties, parliament and the executive are consulted.

  1. Recommendations
  • ZEC must be proactive and start initiating electoral reform by utilizing Section 157 (4) of the Constitution.
  • The parliament of Zimbabwe must make legislative changes to allow for ZEC to have more powers to initiate reform.
  • The independence of ZEC must be unequivocally ascertained by removing clauses that require ZEC to be superintended by the Minister of Justice, Legal and Parliamentary Affairs.
  • ZEC must be allowed to fundraise on its own to expedite the implementation of agreed reforms while strengthening their independence.
  1. Conclusion

The independence of ZEC, legislative freedom to initiate laws and reform, fundraising autonomy and pro-activity are fundamental in making the EMB an important player in electoral reform.

 

 

 

[1] Sachikonye L, 2011, Zimbabwe’s Constitution-Making and Electoral Reform Processes: challenges and opportunities,  Makerere University presentation http://www.cmi.no/file/?1324

[2] ECF of SADC countries, 2007, principles and guidelines on the independence of EMBs in the SADC region.

[3] Bakken M, 2015, South Africa: The role of the EMB in Electoral Reform, www.aceproject.org

[4] Conteh M et al, 2015, Sierra Leone: The Role of the EMB in Electoral Reform, www.aceproject.org

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