NOT ENOUGH, BUT ADEQUATE! AN ANALYSIS OF THE LEGAL FRAMEWORK IN ADDRESSING ELECTION RELATED POLITICAL VIOLENCE AND INTIMIDATION

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Introduction

Election related political violence and intimidation has been at the centre of Zimbabwe’s democratic journey since independence.  The culture that has contributed significantly to questions around the credibility, freeness and fairness of Zimbabwean election contests.  The Election Resource Centre (ERC) maintains that more is needed to strengthen the legislative and administrative frameworks of elections to effectively address the scourge of violence together with ensuring that institutions, particularly constitutional bodies, are strengthened to exercise their full legal and constitutional mandates independently and professionally.

However, the ERC contends that the prevailing framework while generally weak, is underutilized and to some extent misinterpreted. In the larger setting, it suffices to limit political violence and intimidation during elections.

Section 67 of the Constitution provides that every Zimbabwean citizen has the right to make political choices freely, to join and participate in the activities of a political party of their own choice, to campaign freely and peacefully for a political party, to participate in peaceful political activity, and Zimbabwean citizens over eighteen years have the right to vote in secret in elections. However, free and fair elections cannot take place if political violence and intimidation are used to prevent candidates and political parties from campaigning and to force voters to vote for political parties for which they do not wish to vote for or to prevent them from voting.  

 It is therefore imperative that effective steps are taken to prevent political violence and intimidation and to punish perpetrators of such violence. Doing such would address impunity, which is far much more detrimental to elections than violence and intimidation itself. This must apply not only in the period from the announcement of the election date to the polling date but it must apply throughout the electoral cycle; that is the entire period between elections.

The Legal Framework

The ERC contends that ahead of all forthcoming elections, candidates who resort to violence and or intimidation must be disqualified.

Contrary to assertions made previously, the Zimbabwe Electoral Commission (ZEC) has a constitutional obligation to ensure that elections are conducted efficiently, freely, fairly, transparently and in accordance with the law, (Section 239(a) of the Constitution of Zimbabwe). There are adequate, although not comprehensive provisions in the Electoral Act criminalizing all forms of political violence and intimidation. ZEC, which administers that Act, has a duty to do all in its power to ensure that these provisions are not violated. Therefore, ZEC must take action when its personnel on the ground, political parties or individuals report instances of alleged political violence and intimidation.

ZEC must also act in collaboration with other institutions such as the Zimbabwe Human Rights Commission (ZHRC), the police and prosecution authorities to ensure that there is zero tolerance for electoral violence and intimidation from any of the political contestants and that all perpetrators are prosecuted. There should be close collaboration between the electoral and human rights bodies in addressing the issue of electoral violence and intimidation.

ZHRC has in recent months been monitoring a number of by-elections and has reported some instances of political violence. It is submitted that this Commission has a key role to play in monitoring the political environment in the entire period leading up to the 2018 general elections and monitoring the conduct of the election itself and the aftermath of the elections. This is in line with its constitutional functions set out in Section 243 of the Constitution. These functions include monitoring and ensuring observation of human rights, addressing complaints of the public on human rights violations and investigating human rights violations. The ZHRC has the power to direct the Commissioner-General of Police to investigate cases of suspected criminal violations of human rights or freedoms and to report to the Commission the results of any such investigation, which directive must be complied with. The police must act effectively and impartially in addressing all instances of political violence and intimidation and ensure that perpetrators are brought before the courts.

There are special provisions in the Electoral Act to address electoral violence and intimidation during the election period. The Electoral Act (Section 133H-K) provides that when an election is proclaimed, in consultation with ZHRC, the Commissioner-General of Police must appoint a senior police officer for each provincial center. This officer will be the special police liaison officer who will be responsible for the expeditious investigation of cases of politically motivated violence or intimidation within that province when cases come to the attention of the police, a multiparty liaison committee, the ZEC or ZHRC during the election period. Immediately after an election is called, the Commissioner-General of Police, in consultation with ZHRC, must also establish one or more special police units to investigate cases of politically motivated violence and intimidation arising from the election. These officers must investigate as expeditiously as possible all cases of politically motivated violence and intimidation that are referred to them by the police, a multiparty liaison committee, ZEC or ZHRC or are otherwise brought to their attention.

Immediately after an election is announced, the Judicial Service Commission (JSC) must designate one or more magistrates in each province in which the election is to be held, to try cases involving politically motivated violence and intimidation, and these magistrates must give priority to all such cases and ensure that they are brought to trial and completed as expeditiously as possible. In the same vein, the Prosecutor-General must ensure that during every election period, sufficient competent prosecutors are provided to ensure that all cases of politically-motivated violence and intimidation arising within the area in which the election is being held are processed quickly and brought to court as soon as possible before the designated magistrates.

To assist each provincial police liaison officer, ZHRC must in consultation with ZEC establish a Special Investigation Committee (SIC) for each province. The committee must be chaired by a ZHRC commissioner or a ZHRC staff member. The Committee will consist of;

  • The provincial special police liaison officer; and
  • Two representatives of each political party contesting the election selected by the party;
  • Two representatives of any independent candidate who is contesting the Presidential election.

There are provisions requiring the SIC members to be impartial and professional in carrying out their functions. Where the Special Investigative Committee becomes aware, whether through the police, a multiparty liaison committee, ZEC or ZHRC or otherwise, of any case of politically motivated violence or intimidation within the province; it must direct the Special Police Liaison Officer to conduct the required investigations, and the members of the committee may accompany that officer carrying out the investigation if they so resolve and if they accompany the officer during the investigation they will have the powers of Peace Officers under the Criminal Procedure and Evidence Act.

Sufficient consequences

If, after an investigation, the Committee considers that an incident of politically motivated violence or intimidation did take place, the Committee may take any of the following steps—

  • where the violence or intimidation was perpetrated by a candidate or his or her election agent, warn the candidate that he or she may be prosecuted and prohibited from campaigning in the election; or
  • where the violence or intimidation was perpetrated by a supporter of a political party or of a candidate, remind the leader or deputy leader of the political party, or the candidate, that he or she has an obligation to take effective steps to prevent his or her supporters from engaging in politically- motivated violence or intimidation, and warn him or her that he or she may be prosecuted and, in the case of a candidate, prohibit him or her from campaigning in the election; or
  • if any warning has gone unheeded, or if the Committee believes that the incident in question is of a very extensive or serious nature, the Committee must, as soon as possible, submit a written report to any prosecutor in the province giving details of the incident identifying (to the extent it is able to do so) the perpetrators of the violence or intimidation, and a summary of any evidence it has gathered in support of its findings,

 A court which convicts a person of an offence involving politically motivated violence or intimidation committed during an election period may, in addition to any other penalty it imposes on the convicted person, prohibit him or her from campaigning or taking any further part in the election.

Where a person has been prohibited from campaigning or taking any further part in an election, that person may not, during the election period—

  • Attend or address any meeting of a political nature at which more than three other persons are present; or
  • Encourage, urge or persuade any other person to cast his or her vote in the election for a particular political party or candidate.

It is criminal offence do these prohibited things.

The law further provides that where a Magistrates Court convicts a person of an offence involving politically-motivated violence or intimidation committed during an election period, the court may refer the matter to the High Court for sentence and the High Court may, in addition to any other penalty it imposes on the convicted person, declare him or her to be incapable, for a period not exceeding five years from the date of the conviction, of—

  • being registered as a voter or of voting at an election; or
  • occupying a public office, other than a public office the tenure of which is regulated exclusively by or in terms of the Constitution.

If the convicted person holds any such public office, the High Court may declare that the office must be vacated by him or her as from the date of the conviction.

These provisions, in combination, are intended to try to ensure that instances of political violence are dealt with effectively and expeditiously.

Way forward and recommendations

The ERC understands that the ZHRC has strong objections to involvement in some of these mechanisms on the basis that it may compromise its independent capacity to investigate such cases and take action.

It is submitted that in fact the active participation by the ZHRC in these various mechanisms is likely to make these mechanisms far more effective. Its participation will enable the Commission to drive the process and ensure that proper investigations are carried out by the police and that prosecutions are brought and these cases are dealt with quickly by the courts. Through participation, the ZHRC will be able to monitor the progress of police investigations and make sure that the police are not deflected from investigating by political pressure. As noted earlier in the paper, the ZHRC can even accompany the police during the investigations if necessary.

As already indicated ZHRC has the constitutional mandate to investigate all human rights abuses including breaches of electoral human rights and has its own investigation officers for this purpose.  It has the power to order the Commissioner-General of Police to conduct investigation. Nonetheless it would seem that ZHRC can also greatly assist in stemming political violence and intimidation by, during the election period, directly participating on the ground in the provinces in the mechanisms contained in the Electoral Act. This will not compromise its independence and impartiality as it will be chairing and directing the Special Investigation Committees.

Zimbabwe Electoral Commission (ZEC)

The ERC therefore demands that ahead of all by-elections, the voter registration exercise and the 2018 elections, the Zimbabwe Electoral Commission;

  1. Commit to and take appropriate and timely action to only conducting free, fair and transparent elections in accordance with the law and that elections affected by violence and intimidation are not constitutional and therefore will not go ahead.
  2. Commit to and take appropriate and timely action towards working with the Zimbabwe Human Rights Commission and the Zimbabwe Republic Police to curb election related politically motivated violence and intimidation.
  3. Commit to and take appropriate and timely action towards ensuring that provisions in the Electoral Act, which ZEC administers, criminalizing political violence and intimidation are not violated by election candidates, political parties or supporters of political parties.
  4. Commit to and take appropriate and timely action towards referring all reports of political violence and intimidation to the Special Investigation Committee.

The ZHRC, ZRP, NPA and JSC must take action towards implementing their responsibilities as outlined in Section 133H & J. In particular;

Zimbabwe Human Rights Commission (ZHRC)

  1. Set up the Special Investigative Committee ahead of any by-election and harmonized elections.
  2. Direct and work closely with the ZRP to curb and investigate cases of violence and intimidation ahead of all by-elections and the harmonized election.
  3. Commit to take appropriate action on election related human rights violations during the electoral process not after.

The Zimbabwe Republic Police (ZRP)

  1. Commit to comply with directives of the ZHRC and ZEC during election periods towards setting up of the Special Investigative Committee and implementing the work setout thereof.
  2. Commit to train their officers on election related malpractices ahead of by-elections and the harmonized election.
  3. Submit reports of investigations conducted on political violence and intimidation to the ZEC and ZHRC.

The National Prosecution Authority (NPA)

  1. Provide prosecutors for all by elections and harmonized election to prosecute election related malpractices as brought forward by the ZRP and ZHRC.

The Judicial Service Commission (JSC)

  1. Provide Magistrates for all by-elections and the harmonized election to preside over cases of election related malpractices.