PRESIDENT Emmerson Mnangagwa and the Zimbabwe Electoral Commission (Zec) have been violating the constitution and the Electoral Act in the run-up to next Wednesday’s crucial general elections which may reset the country to change course or continue on the same path of destruction.
OWEN GAGARE
Serious constitutional and legal breaches have been perpetrated at various stages of the electoral cycle — including the voter registration and inspection, delimitation, printing and distribution of ballot papers, as well as postal voting — making the election neither free nor fair, well before the first ballot is cast.
The situation has been exacerbated by incidents of political violence, vote-buying and detention of opposition leaders such as Job Sikhala and Jacob Ngarivhume.
The operations of the Central Intelligence Organisation-linked outfit Forever Associates Zimbabwe (Faz), which is unconstitutionally running elections alongside Zec while campaigning for Zanu PF and intimidating villagers countrywide, have also compromised the polls.
Videos of Faz members spreading disinformation and threatening villagers have also gone viral. Faz has been intimidating villagers and collecting voter information ahead of the elections.
During the voter registration and voter inspection exercises, the CIO-led organisation set tables outside some centres where its members were aggressively gathering voter information.
In its latest report, the Zimbabwe Democracy Institute says: “President Emmerson Mnangagwa and his ruling Zanu PF have used both the security apparatus administered through Faz, lawfare and manipulation to coerce and disadvantage their competitors in the 2023 election. Key examples of these tactics are: the deployment of Faz to intimidate, harass, and attack opposition supporters and activists, especially in rural areas, indirect deployment of CIO via Faz to infiltrate and sabotage opposition parties and civil society groups, the arrest and prosecution of opposition leaders and members on various charges, such as treason, subversion, incitement, and violence. Another tactic has been the manipulation of electoral laws and institutions to favour Zanu PF, such as the delimitation of constituencies, the registration of voters, and the accreditation of observers.”
Mnangagwa replaced the military with Faz to run elections behind the scenes as he feared the army could rig him out due to his fallout with his deputy Constantino Chiwenga who has residual control of security forces.
Following the November 2017 military coup which ousted the late former president Robert Mugabe, the army ran elections for Mnangagwa.
After taking over the control of the state and its institutions, the Zimbabwe Defence Forces, in a bid to protect and consolidate the gains of the coup, brazenly commandeered the machinery of Zec, particularly its computer network server, corrupted its internal system as well as logistics and illegally changed the route and destination for the collation, compilation and transmission of the result of the 2018 presidential election for purposes of rigging the election in favour of Mnangagwa, whom it had imposed as President on 24 November 2017.
The judiciary has also played a key role ahead of the polls, including reversing Saviour Kasukuwere’s presidential candidate nomination and approving unconstitutional changes to the Electoral Act in the countdown to polls — amid judicial capture claims.
Zec illegally and unconstitutionally printed and distributed ballot papers for the harmonised elections in violation of section 52A of the Electoral Act which deals with the “number of ballot papers and publication of details regarding them”.
Section 52A reads: “(1) The commission shall ensure that the number of ballot papers printed for any election does not exceed by more than ten per centum the number of registered voters eligible to vote in the election.
“(2) The commission shall without delay provide the following information to all political parties and candidates contesting an election, and to all observers — (a) where and by whom the ballot papers for the election have been or are being printed; and (b) the total number of ballot papers that have been printed for the election; and (c) the number of ballot papers that have been distributed to each polling station.”
However, Zec did not provide political parties and candidates information on the number of ballot papers printed, where they were printed and the company or companies which printed them.
Former Information minister Jonathan Moyo says section 52A (2) is peremptory, in that it does not give Zec any discretion on the matter. “It says the ‘the commission shall, not may, but shall,’ without delay provide the stipulated information on the printing of the ballot papers,” he said on his X social media handle.
“The fact that Zec has printed the ballot papers in blatant violation of section 52A(2) is a gross illegality whose impact can only dent the integrity and credibility of the lection to render it neither free nor fair in terms of sections 56(1) and 67(1)(a) of the Constitution of the Republic of Zimbabwe as read with section 239(a)(iv) whose constitutional imperative is that Zec must ensure that: …elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law.
“Ballot papers for the 2023 harmonised general election have been printed opaquely, secretly and in unknown quantities to make it impossible for the all too important political right to vote to be exercised freely and fairly.”
The main opposition CCC went to the High Court to challenge Zec over this. The judge asked the parties to resolve the issue amicably through a consent order.
Under pressure, Zec eventually released the information and details on Friday – after break ing the law. Zec also violated the law by coming up with Statutory Instrument 140A of 2023 which altered the deadline for the submission of postal voting materials from 9 August to 20 August due to delays triggered by a series of electoral court cases.
The changes to section 75(1)(d) of the Electoral Act — through Statutory Instrument 140A of 2023 — altered the minimum period in which the chief elections officer must receive postal votes from a minimum of 14 days to a minimum of three days from polling day.
Kasukuwere, whose presidential nomination was revoked by the High Court and endorsed by superior courts, challenged the change in court, citing section 157(5) of the constitution which provides: “After an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election.”
The matter was however dismissed by High Court Justice Tawanda Chitapi. Chitapi ruled: “I am of the view that the law was not changed, and that any periods provided by the Act can be altered. My view is that the passage of SI 140A is administrative, exercised as and when necessary to do so. It cannot be held that the exercise of the power given is alteration of the law.
“SI 140A therefore amounts to a conduct of implementation of the law, not changing the law. My view is that the electoral law remains extant: it is the same law which says implement me in this way, an exercise which makes sure that the implementation is done properly.
“I am not persuaded that this matter has merits to stand. The application is dismissed with no order as to the costs.”
There has also been an outcry over postal voting, amid revelations that police officers and prison officers were voting under the supervision of their superiors. The bulk of postal voters are members of the security forces.
There are doubts as to whether the postal voting process will comply with constitutional and legal requirements, given that it started way too late.
Zimbabwe’s judiciary has been under scrutiny ahead of the polls amid judicial capture accusations. One of the most controversial decisions was High Court Justice David Mangota’s ruling which nullified Kasukuwere’s nomination as a presidential candidate and disqualified him at the behest of Zanu PF activist Lovedale Mangwana.
Mangwana had argued Kasukuwere had ceased to be a registered voter as he has been out of the country —in South Africa — for over 18 consecutive months.
Mangota’s judgement was widely criticised as misdirected as he had placed the burden of proof on Kasukuwere and went on to effectively remove him from the voters’ roll without following laid down procedure.
Judges have no power to strike voters out of the roll, but Mangota arbitrarily went on to do so effectively.
The case was seen as a judge venturing into the contested terrain of judges making, instead of strictly interpreting, law.
The Supreme Court endorsed the High Court decision despite noting that Kasukuwere had a constitutional case to raise.
The Constitutional Court however dismissed Kasukuwere’s appeal on a technicality without going into the merits of the case.
“The court finds that the application being a disguised appeal is not properly before the court. The application be and is hereby dismissed with no order as to costs,” said Deputy Chief Justice Elizabeth Gwaunza on 8 August.
Zec illegalities and controversial judicial decisions have affected the credibility of the electoral process. The delimitation exercise was also mired in controversy amid gerrymandering allegations and well-documented blatant violation of the constitution, particularly by Mnangagwa.
Delimitation is the process of dividing the country into constituencies and wards for the purposes of National Assembly and municipal elections. The process is carried out in terms of sections 160 and 161 of the constitution.
Zec commenced the delimitation exercise following a notification in the Government Gazette on 24 May 2022.
This was after the completion of the national census a month earlier as required by law. Zec chairperson Justice Priscilla Chigumba presented the preliminary delimitation report to President Mnangagwa on 26 December.
The preliminary report had “a list of the wards and constituencies, with the names assigned to each and a description of their boundaries; a map or maps showing the wards and constituencies.” Section 161 (7) (c) of the constitution specifically states that “the President must cause the preliminary delimitation report to be laid before parliament within seven days”.
However, Mnangagwa missed the deadline and only tabled the report in Parliament on 6 January through Justice minister Ziyambi Ziyambi.
The report was supposed to be tabled in Parliament on 2 January 2023. Mnangagwa tabled the preliminary report in Parliament after 11 days, although constitutionally this should have been done within seven days.
The constitution states that “within fourteen days after a preliminary delimitation report has been laid before Parliament — (a) the President may refer the report back to the Zimbabwe Electoral Commission for further consideration of any matter or issue; b) either House may resolve that the report should be referred back to the Zimbabwe Electoral Commission for further consideration of any matter or issue, and in that event the President must refer the report back to the Commission for that further consideration.”
Parliament established an ad-hoc committee which scrutinised the preliminary delimitation report before debate ensued in the House.
The ad-hoc committee made several recommendations submitted to Zec together with Mnangagwa’s recommendations.
Mnangagwa’s submissions and recommendations were never made public. Section 161 (9) says: “where a preliminary delimitation report has been referred back to it under subsection (8), the Zimbabwe Electoral Commission must give further consideration to the matter or issue concerned, but the Commis sion’s decision on it is final.”
The section emphasises the finality of Zec’s decisions, after considering the President and Parliament’s submissions.
Section 161 (10) makes it clear “the Zimbabwe Electoral Commission must submit a final delimitation report to the President.”
Chigumba presented the final report to Mnangagwa on 3 February, but the President’s allies, among them Justice minister Ziyambi and Information secretary Nick Mangwana, immediately sought to muddy the situation, claiming he had received another draft.
The presentation of two drafts is not provided for in the constitution. Chigumba was clear that she had presented a final delimitation to the President.
She said the President had a mandate to gazette the final delimitation report within 14 days. Section 161 (11) of the constitution reads: Within fourteen days after receiving the Zimbabwe Electoral Commission’s final report, the President must publish a proclamation in the Gazette declaring the names and boundaries of the wards and constituencies as finally determined by the commission.”
Mnangagwa was therefore supposed to publish a proclamation in the government gazette by 17 February, but violated the constitution.
He only did so on 20 February. High-level government officials told The NewsHawks Mnangagwa was playing an active role in unconstitutionally changing the final draft to suit his and Zanu PF’s desires.
The President claimed to have received the final draft from Zec on 17 February, the deadline day by which he was supposed to have gazetted the final delimitation report.
There are numerous such violations of the constitution and the electoral law, especially Mnangagwa and Zec.
Given all this, Zimbabwe’s elections may turn into a complete fiasco. Not simply a political and moral fiasco, but a legal one as well.
