IN the aftermath of the delimitation process controversy which rolled into this week after months of contestation as the Zimbabwe Electoral Commission (Zec) struggles to demonstrate functional independence and impartiality, it has increasingly become clear the election management body has imploded and rendered incapable to run free, fair, transparent and credible polls.
BRENNA MATENDERE
While Zec chairperson Justice Priscilla Chigumba tried to take on President Emmerson Mnangagwa and his allies over delimitation, the fight over the final report further exposed vulnerabilities of the body’s commissioners and staff who are susceptible to external partisan political pressure, influence and manipulation.
Chigumba found herself having to battle political bigwigs, including Mnangagwa, trying to usurp Zec’s mandate and powers, over running constitutional and institutional barriers to bulldoze the delimitation process.
Although Chigumba tried to follow constitutional and procedural due process, Mnangagwa twice violated the constitution, first by not observing the seven-day deadline to submit the preliminary draft delimitation report.
The President got the report on 26 December 2022, and was supposed to table it before Parliament on 2 January 2023, but he only did so on 6 January 2023, a clear violation of the constitution.
As if that was not enough, Chigumba gave Mnangagwa the final report on 3 February in terms of section 161 (10) of the constitution for him to gazette it within 14 days.
Again, Mnangagwa breached the constitution as he only did so on 20 February, three days after the deadline.
This was after his political functionaries had actually confronted Chigumba, fighting her over whether the report she had submitted to him was final or not.
The Zec boss had made it clear the report was final, but government functionaries openly interfered with and challenged her presentation of the final report in terms of the law, while unlawfully speaking on behalf of Zec.
Chigumba largely kept quiet. She only insisted the constitution was clear when asked about it, but showed no robust engagement until she was pushed into a corner on 20 February during crisis meetings at State House in Harare as matters rose to a head.
Sources said at that moment she fought hard for her report to stand, but already she had allowed herself to be undermined without fighting back to show character and independence on her job. Zec leaders lack behavourial and functional independence.
To make matters worse, Zec had all but imploded over delimitation — becoming practically dysfunctional — when seven out of nine commissioners revolted against Chigumba and her deputy Rodney Simukai Kiwa over the authorship of the report.
Mnangagwa, Justice minister Ziyambi and permanent secretary Virginia Mabhiza were implicated in the plot to disrupt the delimitation process, influence its outcome or discard the report completely.
When confronted with a fight over who wrote the delimitation report, Zec’s conflict resolution mechanism failed. Seven commissioners on 6 December 2022 refused to adopt the report, saying it was written by Chigumba and Kiwa, not Zec as a corporate body.
Sources said the Central Intelligence Organisation was involved in the report’s writing and production, hence its Director-General Isaac Moyo fiercely defended Chigumba, even at the risk of incurring the wrath his boss, Mnangagwa.
Despite being in the majority, the seven commissioners were steamrolled by Chigumba in an arbitrary decision-making move. This opened a rare window of opportunity for voters to see how Zec works internally. The Zec boss could not rally consensus to push for her position and rescue her report. Her colleagues even went to the extent of inviting Mnangagwa to interfere with a constitutional process to kill the report.
In Kenya, when such an internal battle erupted over declaring the presidential election winner, President William Ruto, four out of seven commissioners rejected the result announced by Independent and Boundaries Commission chair Wafula Chebukati. But they eventually resigned. The Zec 7 are still there. In fact, two of them are fighting the delimitation process in the Constitutional Court.
Zec has failed the transparency, accountability and integrity tests over many issues.
In terms of the Zimbabwean constitution, elections must be regularly held and be “peaceful, free and fair”, while “free from violence and other electoral malpractices”.
Article 21 of the Universal Declaration of Human Rights says “the will of the people shall be the basis of the authority of government” derived from free and fair elections.
An imploded Zec is not able to guarantee that the will of the people prevails.
Zec, lacking integrity and credibility, will not be able to run the elections properly and guarantee results that reflect the will of the people from which the authority to govern is derived, and which are not disputed.
Apart from the delimitation problem, Zec is entangled in messy disputes over the quality and access to the voters’ roll.
It has been taken to court by main opposition CCC Harare North MP Allan Norman Markham to give him an electronic copy of the voters’ roll upon payment of the prescribed US$200 for a copy. Opposition parties and civil society organisations have been fighting Zec over the voters’ roll.
This is even before the usually controversial printing of ballots and the number and location of polling stations are discussed.
The Election Resource Centre, a think-tank and advocacy organisation focused on elections and democracy, is one of civil society groups fighting Zec over the voters’ roll.
This came after Zec failed to provide the electronic voters’ roll which cost US$200. Instead, Zec has been more than willing to provide the cumbersome and unmanageable hard copy for US$187 000, which is unaffordable like its nomination fees currently being challenged in Parliament by civic entities.
However, Zec claims the voters’ roll is accessible. Now Chigumba says she cannot discuss the issue as it is sub judice.
In 2013, Zec refused to release the final voters’ roll until polling day. This was criticised by Sadc election observers who said “a voters’ roll should not be a top-secret document”.
During the same elections, an Israeli security firm Nikuv was implicated in elections rigging. It was reportedly paid US$10 million to rig the elections.
The late former president Robert Mugabe and Zanu PF won overwhelmingly.
Elections are the cornerstone of democracy.
For elections to be credible, competition must be fair and that requires impartial management of the process.
As stated in International IDEA’s Handbook on Electoral Management Design, electoral management must be free from undue influence and manipulation by political parties or groups with a vested interest in the elections outcome.
One approach adopted to mitigate political encroachment and uphold electoral integrity is establishing constitutionally independent institutions like Zec, structurally separate — legally and normatively — from government, designed to set its own strategic priorities and manage all or specific electoral management activities.
However, simply establishing an independent Zec is not a sufficient measure to prevent or limit political or other attempts to undermine its impartial and autonomous function, and fulfilment of its mandate.
Electoral institutions can be normatively, structurally and functionally independent from the government. Structural independence reflects how the leadership and internal units of the electoral body are composed, and how a commission such as Zec relates to the executive and other arms of government.
Functional independence instead captures the behavioural independence and how independently mandated functions are fulfilled.
Structural — de jure — independence in isolation does not necessarily manifest or automatically translate into functional — de facto — independence.
Zec is only normatively and structurally independent, that is de jure independence. De facto it is not. Crucially, a structurally independent electoral agency is functionally independent if its commission — the policy formulating and decision-making executive organ — lacks autonomy or is susceptible to political “capture” or monopolisation by the executive or any political party.
Independence is often regarded as interchangeable with impartiality, which is not always the case.
Zec, for instance, is constitutionally independent on paper, but it is not impartial.
What further makes Zec incapable of properly run elections is lack of political will, a crucial determinant of its ability to function independently.
Establishing an independent electoral body constitutionally or legally alone and providing it with legal personality and structural independence does not inherently guarantee or translate into effective functional independence.
“The legal and institutional environment must be conducive for an independent state institution to administer and regulate a political process autonomously,” the International Obligations for Elections document says.
“In the same context, where functional independence is more prone to being compromised, structural independence provides guidelines for political behaviour and serves as a deterrent and a corrective mechanism for de-alignment and wrongdoing.
“Securing political will in any context is often the primary obstacle for designing and achieving independence in electoral management and maintaining it for the long haul. In contexts where high levels of impartiality and professionalism are routinely expected of public services, and the judiciary is independent, the rules overseeing decision-making processes can afford to be more general than specific, without having negative consequences for elections.”
The presence of strong civil society, dynamic opposition and resilient institutions also helps to ensure professional and impartial electoral management. The choice of the electoral system is also another important consideration.
“Electoral system design can increase the momentum of democratic governance and political change,” the International Obligations for Elections document adds.
“It may also encourage popular participation and enable the emergence of legitimate representatives who can handle a wide range of needs and expectations. Yet an ineffective electoral system can derail progress toward democracy or even ignite political instability.”
Zec’s credibility crisis is exacerbated by lack of transparency on the appointment of commissioners who must be impartial and not play an active role in politics. As media reports have shown, Zec is staffed and stuffed with children, relatives and friends of politicians, some coming from the security system. Some of them were not even appointed on merit, but patronage.
Its secretariat has people with security, military and intelligence, background, some deployed undercover to manipulate, influence and rig the electoral process for the incumbent leader and the ruling party’s benefit in violation of the constitution and relevant laws.
