It is a good thing that three major international election observer missions have submitted their preliminary reports: The Commonwealth Election Observation Mission, the African Union (AU) Observation Mission and the Sadc Election Observation mission.
Meanwhile, there are no matters arising from the
preliminary reports by the Commonwealth and the AU election observers, pending
the release of their final reports in two or so months.
Otherwise, election observation mission reports are
precisely that, namely, reports on what the relevant missions actually observed
on the conduct of an election in question.
But not so for the Sadc Election Mission Preliminary
Statement on Zimbabwe’s 2023 harmonised general election. Led by former Zambian
Vice President Nevers Mumba, appointed by Zambian President Hakainde Hichilema,
who recently assumed the chairmanship of the Sadc Organ on Politics, Defence
and Security.
Unlike its African Union and Commonwealth counterparts, the
Mumba Mission clearly, intentionally and scandalously wrote its report on the
basis of what it heard, and not what it observed.
Rather than making news about the election it ostensibly
observed, the news is on the Sadc Election Observation for coming to Zimbabwe
with an axe to grind, wielding it recklessly and shamelessly.
It would be irresponsible to let the preliminary report of
the Sadc Election Observation Mission go scot-free, unchallenged.
The Mumba report is premised on this far reaching
conclusion, which it is not competent to make:
The Mission noted that some aspects of the Harmonised
Elections, fell short of the requirements of the Constitution of Zimbabwe, the
Electoral Act, and the SADC Principles and Guidelines Governing Democratic
Elections.
Writing under the rubric, “Constitutional and Legal
Framework for the Elections,” Mumba and his colleagues make sweeping and
opinionated statements and conclusions that are all based not on the direct
observation of the election by the Mission but on hearsay with not a single
thread of even desktop evidence.
The sweeping statements and conclusions include an array of
gratuitous comments based on hearsay about the voters roll; freedom of assembly
in general and the Maintenance of Peace and Order Act (MOPA); freedom of
expression in relation to the Criminal Law (Codification and Reform) Act; the
nomination of candidates; participation of women as candidates; alleged
intimidation of voters; postal voting controversy; and coverage of the election
by the state media.
In the result, the main thrust of the report is pure and
naked hearsay. In this connection, the report’s treatment of two key issues is
telling: one is the delimitation of constituencies and the other is on the
so-called Patriotic Act.
Regarding the so-called Patriotic Act, the report makes the
following conclusion based on untested hearsay submissions:
The Mission noted that the Patriot Act is incompatible with
the spirit of section 61(1) of the Constitution, and paragraph 4.1.2 of the
SADC Principles and Guidelines Governing Democratic Elections which requires
Member States to uphold, amongst others, the freedom of expression.
This is utterly shocking.
What jurisdiction, power and legal competence do Nevers
Mumba and his colleagues in the Sadc Election Observation Mission on the
Zimbabwean 2023 harmonised general election have to make such a judicial
pronouncement?
The pronouncement is manifest and gross interference with
the rule of law in Zimbabwe under which such judicial findings are made by
competent courts of law and, even worse, the pronouncement is an unacceptable
violation of Zimbabwe’s sovereignty.
Then there’s the report’s treatment of the delimitation of
constituencies, about which it says:
“The mission WAS INFORMED that the delimitation exercise
that was conducted in 2022 by the ZEC was marred with controversy”.
Without saying who informed it, the Sadc Observation
Mission preliminary report makes the following scandalous statements and
partisan conclusions on Zimbabwe’s delimitation exercise conducted by the
Zimbabwe Electoral Commission in 202, which it is not entitled to make – as it
lacks the jurisdiction, authority and competence to do so – and which
statements and conclusions demonstrate beyond reasonable doubt that its preliminary
report is heavily opinionated hearsay that smacks of a malicious and
predetermined hatchet job:
"(i) In its Delimitation Report of 2022, the ZEC
rightly states that, “the Constitution recognisesthe impracticability of having
equal number of voters in each constituency by allowing the Commission to
depart from this requirement within a stipulated margin. In this case the
Constitution in section 161(6) stipulates that …“no constituency may have more
than 20% more or fewer registered voters than other such constituencies”. The
constitution in section 161(6)a-f also lists factors that need to be considered
when delimiting since they are important during the exercise.” However, the ZEC
goes on to also state that, “Based on the provision of section 161(6) the
Zimbabwe Electoral Commission then calculated the 20% deviation from the
national average voter registration expected in each constituency which was 27
640. This yielded a deviation of 5,528 voters. Since the average number of
registered voters was regarded as a stable benchmark against which delimitation
of constituencies was conducted, the deviation figure was added to the national
average to determine the maximum number of registered voters that a
constituency delimited would contain i.e., 33 168.”
(ii) The Mission noted that the use of the average number
voters per constituency is not consistent with the provision of section 161(6)
of the newConstitution that was adopted in 2013. The word “average” appears in
section 61A(6) of the old Constitution of Zimbabwe under which it was
permissible to calculate the minimum and maximum permissible number of voter
per constituency by using the national average as the baseline. That word
“average” does not exist in section 161(6) of the new Constitution which deals
with the same subject matter. The difference between section 61A(6) and section
161(6) of the old and the new constitutions respectively is far from being
merely technical.
(iii) In the new
Constitution, and in the context of section 161(6), the maximum deviation is
20% of the voters registered in the constituencies. The new Constitution uses
actual constituency by constituency registered voter population, not the
national average number of constituency voter population to calculate the
permissible deviation from the requirement that constituencies must have an
equal number of voters. Mathematically, the two methods produce very different
results and affect the equality of the vote with respect to the elections to
parliament. On the other hand, since the country votes as a single constituency
in the presidential election, the difference in the methods has no particular
impact on the equality of the vote in that election. It was therefore not
unexpected that ZEC would receive substantial criticism on this aspect of its
latest Delimitation Report.
(iv) The Mission noted that the use of the average number
of voters per constituency is not consistent with the provision of section
161(6) of the new Constitution that was adopted in 2013. The word “average”
appears in section 61A(6) of the old Constitution of Zimbabwe under which it
was permissible to calculate the minimum and maximum permissible number of
voter per constituency by using the national average as the baseline. That word
“average” does not exist in section 161(6) of the new Constitution which deals
with the same subject matter. The difference between section 61A(6) and section
161(6) of the old and the new constitutions respectively is far from being
merely technical.
(v) In the new
Constitution, and in the context of section 161(6), the maximum deviation is
20% of the voters registered in the constituencies. The new Constitution uses
actual constituency by constituency registered voter population, not the
national average number of constituency voter population to calculate the
permissible deviation from the requirement that constituencies must have an
equal number of voters. Mathematically, the two methods produce very different
results and affect the equality of the vote with respect to the elections to
parliament. On the other hand, since the country votes as a single constituency
in the presidential election, the difference in the methods has no particular
impact on the equality of the vote in that election. It was therefore not
unexpected that ZEC would receive substantial criticism on this aspect of its
latest Delimitation Report."
There are three things to highlight about what Mumba and
his team say regarding the delimitation of constituencies.
Firstly, everything they say is very familiar to
Zimbabweans because the delimitation issue was widely, hotly and robustly
debated.
More specifically, the words used in the Mumba narrative
about the delimitation report are familiar words that were used during the
debate. It is disappointing that the familiar words have found their way,
verbatim, into the Sadc Election Observation preliminary report. This alone is
sad, and the less said about it, the better for everyone concerned.
Secondly, ZEC’s delimitation exercise was challenged at the
High Court of Zimbabwe and in the country’s apex court, the Constitutional
Court. The views that the Sadc Election Observation Mission regurgitates as its
own, when in fact they’re not, were argued in Zimbabwe’s courts, but no
pronouncement or finding of the kind that the Mumba team goes to town about was
made by any court of the land.
What makes this even more egregious is the following
statement in the Sadc Election Observer Mission’s report:
In view of their significance in the event of legal
challenges in the context of the electoral process, some stakeholders expressed
the view that the judiciary is compromised by the Government. A key
justification for this perception was information received from these
stakeholders that the judiciary recently received large financial and material
incentives which the stakeholders viewed as an attempt by the Government to buy
the loyalty and allegiance of the judiciary.
So, the Sadc Election Observation Mission on the 2023
harmonised general election in Zimbabwe “received information from…stakeholders
that the judiciary recently received large financial and material incentives
which the stakeholders viewed as an attempt by the Government to buy the
loyalty and allegiance of the judiciary”.
Why is the Sadc Election Observation Mission disrespecting
Zimbabwe’s judiciary in this manner?
The is outrageous, and for it to find expression in this
report is shameless and unacceptable.
In the interest of fairness, the Sadc Mission must be
required by Sadc to share this information with everyone, particularly the
Government of Zimbabwe which represents the Zimbabwean State, a member of Sadc.
As already pointed out, the Sadc Observer Mission has no
jurisdiction or competence to make any judicial pronouncements on Zimbabwean
elections, not least because it is not a judicial inquiry; it is just and only
an observation mission. This needs to be rectified by the Mission in its final
report. That’s why it has been both important and necessary to engage the
preliminary report at this stage.
Thirdly, and last but not least, it is important to recall
the Mission’s conclusion that is making news everywhere in order to show that
it is politically opportunistic, and arguably is self-evident malice
aforethought.
The Sadc Election Observation Mission’s preliminary report
has this running thread that ties everything in the report together, and which
is effectively the essence of the report’s conclusion:
The Mission noted that some aspects of the Harmonised
Elections, fell short of the requirements of the Constitution of Zimbabwe, the
Electoral Act, and the SADC Principles and Guidelines Governing Democratic
Elections.
Is this conclusion in any way linked to or an outcome of
the observations that the preliminary report lists as the observations that
were actually made by the Sadc Mission?
The best way to unpack the question is by looking at the
full list of the observations that the Mission says it made, and they are the
following:
"3. OBSERVATIONS ON ELECTION DAYS (23-24 AUGUST 2023)
On the Election Days, the SADC Electoral Observation
Mission observed the voting process in 10 Provinces of the Republic of
Zimbabwe. The deployed observer teams covered 172 polling stations in their
respective areas. The political contestants have continued to call for peace
during this election period and after. The SEOM observed the following critical
aspects at the 172 polling stations that we visited:
(a) The environment at the polling stations was relatively
calm and peaceful.
(b) A number of voters expressed concern due to a lack of,
or late arrival of ballot papers and poor administration at some polling
stations. However, voters remained patient to exercise their constitutional
right to vote.
(c) Professional and attentive police presence enhanced the
overall peace and secure environment in all the polling stations observed.
(d) 64% of the voting stations observed opened on time, 36%
did not open on time for the 07:00am stipulated opening time. Some polling
stations opened more than 12 hours after the stipulated time. The reason
provided by ZEC for this unprecedented development was the unavailability of
ballot papers, particularly for the local authority elections, and also due to
previous litigation. This challenge was, however specific to Harare and
Bulawayo Provinces. Due to the delays, some voters left without casting their
votes, while others opted to remain in the lengthy queues throughout the day
and night. By 06:00am on 24 August 2023, some voters in these two provinces had
still not voted. Consequently, these delays also had a knock-on effect as they
dissuaded voters from voting in the first place. Against this observation we
further note as follows:
i. Section 52(1) of the Electoral Act provides that for any
election, the ZEC shall ensure that every constituency elections officer is
provided with polling booths or voting compartments and ballot boxes, and shall
provide papers, including ballot papers.
ii. Prior to election day, ZEC had assured our Mission and
other stakeholders, that all necessary voting materials, including ballot
papers, were available and ready for use before election day. This
communication was made in the context of section 52A(2) of the Electoral Act
which requires ZEC to provide information on the number of ballot papers and
publication of details regarding them. On the basis of these two
considerations, the subsequent information from ZEC that they did not have
adequate ballot papers has the unfortunate effect of creating doubts about the
credibility of this electoral process.
(e) The voters roll was unavailable at 1% of the polling
stations observed, and was therefore not displayed outside the polling stations
for the convenience of the voters and verification by party/candidates agents.
(f) During the voting period, and at 26% of the polling
stations observed, not all voters who turned out could vote. The reasons
advanced for this included:
i. Voters were identified, but the names were not found on
the voters’ roll;
ii. It was not possible to establish the voter’s identity;
iii. Voters were at the wrong polling station; and
iv. Voters did not have a national identity card or
passport, or due to the absence of an official witness confirming an elector’s
identity.
(g) 8% of the polling stations observed were not accessible
to voters living with disabilities.
(h) At 50% of the polling stations, voters living with
disabilities, the elderly, and pregnant women were not given priority to vote.
(i) In 3% of polling stations observed, indelible ink was
not checked on the voters before allowing them to cast their vote.
(j) At 97% of the polling stations observed, voting was
free from irregularities.
(k) Voting proceeded in an orderly manner at 95% of the
polling stations observed.
(l) Ballot boxes did not remain locked and/or sealed at 2%
of the polling stations.
(m) As a result of the excessive delays in the opening of
polling stations in Harare and Bulawayo provinces, at least 36% of the voting
stations observed did not close at the scheduled closing time of 1900hrs, while
some had not even opened by that time. It was announced that voting would be
extended to proceed into 24 August 2023 to compensate for the late opening.
(n) In previous stakeholder consultations, a shadowy
organisation referred to as Forever Associates Zimbabwe was accused of
conducting a country-wide exercise of electoral intimidation. Our observers
confirmed the existence of this group as its officials or agents were easily
identifiable at some polling stations as they were dressed in regalia
emblazoned with the FAZ name and were accredited local observers. These, and
other unidentified persons who were not polling officials were also observed
taking down the names of voters before they cast their votes. In some areas,
voters were intimidated by actions of these individuals.
(o) The Mission observed the closing and vote counting
processes. A proper analysis of these two processes shall be provided as part
of the final SEOM Report."
CONCLUSION
Three points to conclude:
Firstly, it is notable that the actual observations made by
the Sadc Election Observation Mission are given as a skeletal laundry list with
little if any analysis. Yet the observations are at the core of how the actual
polling or election was conducted on polling day.
Secondly, there’s no connection between the preliminary
report’s running theme that “the Mission noted that some aspects of the
Harmonised Elections, fell short of the requirements of the Constitution of
Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing
Democratic Elections”.
Surely, to sustain the theme, it has to be connected with
the actual observations made by the Mission. But the preliminary report makes
no connection, not least because the connection is contrived, based on hearsay
and therefore has no factual foundation.
Thirdly, one of the observations that proves malice in the
preliminary report is the following [number “m” on the laundry list of
observations]:
As a result of the excessive delays in the opening of
polling stations in Harare and Bulawayo provinces, at least 36% of the voting
stations observed did not close at the scheduled closing time of 1900hrs, while
some had not even opened by that time. It was announced that voting would be
extended to proceed into 24 August 2023 to compensate for the late opening.
It is an unfortunate falsehood that there is any polling
station that had not opened by 1900hrs on polling day, 23 August 2023. It’s a shame that such a falsehood found
itself in a report of this stature and implication. Otherwise, if the report
was based on good faith, the name and location of polling stations that had not
opened by 1900hrs on polling day should have been specified for purposes of
verification and rectification.
Fourthly, right upfront the preliminary report says:
The Mission was informed that a further proclamation was
issued rendering 24 August 2023 as a polling day in view of the delays
experienced at certain polling stations. Furthermore, President Mnangagwa also
proclaimed 2 October 2023 for the run-off election to the office of president
if such a poll becomes necessary.
Two points about this. One is that the mind boggles at why
the Mission had to be “informed” about this, and why the Mission did not get a
copy of the proclamation for itself. Was this out of laziness or what?
The other point is why does the preliminary report fail to
see and understand that “the further proclamation” was the specific solution to
the litany of what the Mission lists in its preliminary report as its
observations regarding the delayed opening of polling stations on polling day
and the shortage of ballot papers and related issues?
An impression, a false one at that, is created to the
effect that the litany of observations of problems that beset polling stations
that opened late or opened without some or all ballot papers for the three
elections were left unattended to.
If truth be told, the Sadc Election Observation Mission’s
preliminary report leaves a distinct and disturbing impression that the Mission
had a sinister and a not so hidden mission against the people of Zimbabwe and
the Republic of Zimbabwe, abi nitio.
That’s unfortunate because the impression is palpable! Prof
Jonathan Moyo, writing on X (Twitter)
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