July 31 Elections were not free and fair, but for many reasons

Elections were not free, fair and credible, but for many reasons.

By Terence Chimhavi

People queue to vote

Now that the July 31 election has come and gone, it presents an opportune moment in time when we can get to reflect, with hindsight, on the election as a moment in the constant evolution of our democracy. Granted, July 31 itself was not an event but the culmination of a process that started, many will say in 2008 with the illegitimate June 27 election; more so, the five year period preceding July 31 is itself a smaller part of Zimbabwe’s evolving electoral history whose start is marked by the historic 1980 elections that ushered in majority rule. That culmination of the past five years had the reform agenda as its hallmark, itself epitomized by the political parties-led Zimbabwe Elections Roadmap of April 2011; and the extent to which this reform agenda was implemented is the simplest and perhaps only legitimate way through which the credibility of the July 31 poll can be assessed.

SADC refused to endorse June 27 2008 because it was not free and fair,
hence not credible.

The 2008 poll was discredited mainly because it had taken away the right of the people to elect their leaders freely and in a fair manner – overt violence and coercion marked the poll which the AU and SADC refused to endorse. Therefore, the remedy to that unfortunate episode, to give the people a fresh opportunity to freely and fairly express their will through the ballot was to be found in the reform processes as set about in the GPA. In particular, this should be in as far as the GPA parties would manage to implement the major milestones enunciated in the GPA that had a direct and also those with an indirect effect on the conduct of an election. While peace was one such major milestone, it is by no means the only important factor to consider. The 2011 elections roadmap was explicit in the specific milestones that could hand the people of Zimbabwe an opportunity to a free and fair poll. The voters roll, staffing of ZEC, the media, rule of law, proclamation of date and attendant consultations are just but a few other provisions that stand out glaringly on the elections roadmap.

One thing is apparent and this is the fact that the electoral playing field for the July 31 poll was far from level and was heavily skewed in favour of the governing parties that comprised the GNU. In this very setup however, it is clear that just like in 2008, it was Zanu PF that had a controlling ‘stake’ in the arrangement, and therefore enjoyed unfettered advantage over the rest of its opponents, both within and without the GNU. The state media is a clear example of how Zanu PF was able to tilt the ground in its favour, given the mere reach and ease of accessibility of the state media as opposed to any other media. Considering the role of and the importance of the media in any electoral context, it is clear that even before the election, the contest was not going to be fair.

State television is firmly controlled by Zanu PF.

The reasons why such an unfortunate scenario would preside in the country, four years after the consummation of the inclusive government are as many as they are varied. This is against the background that the very existence of the same government was predominantly premised on creating those conditions ‘sufficient to sustain the holding of a credible election’. However, as the GNU stared its twilight moments, it did not have much to show for all the time it had been purporting to serve its mandate, as broadly enshrined in the GPA and constitutionally operationalized by Amendment 19. Many will point that the failure to achieve the set target of reforms directly related to the holding of a credible election was the function of the manner in which the governing parties sought to and set about to implement these reforms.

Unbridled corporate incest - T. Mahoso

A glaring ineptness was the inability of the government to create and empower institutions that sustain democracy, especially those that are constitutionally provided for and having a direct bearing on the electoral process. Ideally, these institutions should have been constituted by credible persons, without obvious political affiliation, with the process of choosing these individuals being done at a non-partisan, professional and competent level. Contrary to this, we had to suffer the nauseating domination of having to endure horse-trading between the three governing parties, as if the institutions are supposed to serve only their parties. These institutions are supposed to be inclusive of and reflective of the wider cross-section of society, even beyond the confines of the GPA parties. After all, they are supposed to serve every citizen without fear or favour. Fundamentally this was a mistake on the part of the MDC formations as Zanu PF seemed to be in total control of the personnel in the majority of such institutions. There is no way, for example, that you can talk about having achieved media and electoral reforms, with the manner in which the ZMC or the ZEC is constituted, both at leadership and staffing levels.

Perhaps, the biggest gaffe by the GPA parties which to today is still a very controversial subject is the manner in which the parties agreed to and unilaterally went about authoring a new constitution for the country. Though this subject will be enough a subject alone for debate among scholars and laymen alike, it cannot be over-emphasized that the manner the parties went about doing so, right up to the concomitant negotiations at state house between the principals showed a lot of disrespect for the people. More so, it showed a lot of contempt and disregard of the fact that their government existed for the purposes of according the people a free and fair poll. In as much as the ultimate political contest was always going to be between the main political parties, the people were a critical player in the whole equation, and therefore their ability to lead in setting the ‘rules of engagement’ for the eventual contest, was as critical. The fact that the inclusive government existed primarily to set the conditions sufficient for a credible, free and fair election meant we eventually had to have an election. The 2008 election was disputed not because the MDC had failed to win, but essentially that the people had not been able to freely and fairly express their will through the ballot.

Brothers in connivance - Copac has represented the epitome of the compromised reform agenda of the GPA.

The stalled reform agenda

The major reason why the July 31 poll was visibly free but certainly not fair lies in the stalled reform agenda, more frankly, the elections roadmap of April 2011. When the inclusive government set in, there was a lot of squabbling over a wide range of issues. Some, the parties would agree to amongst themselves, but as early as 2010, the same parties were shuttling between subsequent SADC and sometimes AU meetings to report of intermittent stalling in the reform agenda. And all along, Zanu PF had been clamoring for elections, fully cognizant that the ground was not equal, and eager to keep it that way. So, in the absence of reforms, it should have been clear that Zanu PF would have the upper hand, and was not keen on allowing the people to exercise their vote freely and fairly.

When Zanu PF seemed to accede to petty concessions such as the constitution and operation of the constitutional commissions – ZEC, ZACC, ZHRC – it made sure that the appointments were biased towards and among the three GPA parties, where it played ‘big brother’, in the process blocking proper and non-partisan identification of suitable commissioners and relevant personnel for the commissions, with full participation of the citizens, and the eventual electorate. After all, these commissions did not exist just to serve three political parties, as the parties themselves seemed to suggest with such obnoxious action.

So, if the truth be told, in as far as the reforms towards elections were concerned, there was minute movement; Zanu PF did not trust a free and fair environment as clamored for by the other parties. In addition, they also did not and still do not seem to trust the people to vote for them willingly. The reasons are very clear, though for now, this is not the subject of this paper.

AU - has endorsed July 31.

Knew well of the problems with the reform agenda, leading to fresh Zimbabwe elections

By the end of 2012 when it was becoming more apparent that elections were inevitable, SADC and AU knew very well that there were problems with the reform agenda. After the adoption of the Zimbabwe Elections Roadmap in 2011, there was direct and constant pressure to prepare for a free and fair poll. Each time they would convene, they would be confronted by civics and political parties reporting on Zanu PF’s intransigence on effecting reforms to facilitate a fair poll. In response, SADC and AU would ‘note progress’ in the negotiations to attain a conducive electoral environment, while chiding all and sundry, reminding them of the need to allow Zimbabweans to solve their own problems. Their actions seem to be based on the belief that real action to move forward these issues needed to come from within Zimbabwe. Their assessments and reports on the July 31 poll therefore should not come as a surprise now, given that they allowed the election to go on, fully aware of the prevailing environment. Their being aware meant that they could only act if one of the parties involved had revoked their participation, just like in 2008. The fact that they acknowledged the peace prevailing and also the absence of reforms and therefore uneven ground, meant they had room to intervene, though it was obvious they would do so reluctantly. Their major concern should have been whether the people would get an opportunity to freely and fairly express themselves, giving the election the credibility it required.

Since it was apparent that just like 2008, minus the violence, the ground was staked heavily in favour of one party, there was no sense at all in having the polls at that time. Particularly, there was no need for the MDcs to have gone into the election under such conditions. Harassment of civic society organizations and activists and the general citizenry even by state security institutions was rife and there were pockets of overt violence on citizens by politically aligned youths. Yes, it may be true that parliament had ceased to exist but its very existence was about getting through with these reforms. The stalling of the reform agenda meant that in essence, it was the people of Zimbabwe who would not get a shot at a genuinely free and fair poll. Never mind the opinion polls and surveys towards the elections, the truth remains that the environment in the country was not sufficient to sustain a credible poll, where all participants and the electorate are free to interact and have fair access; to the electorate and vice versa, and to state resources, particularly the media. This election should not have been about Zanu PF or the MDCs or any other party, but should have been primarily about giving the people of Zimbabwe an opportunity to express their will, in a free and fair environment, not just ‘free and peaceful’, which right they had been denied in 2008.

Front-runners? - Imposed an unfair and unfree election on the people of Zimbabwe.

In conclusion, it cannot be argued that the July 31 election was not free and fair, ‘free’ not just being the absence of overt violence. It is worth to stress as well that the group most disenfranchised is the people of Zimbabwe who were not allowed to enjoy a plebiscite as prescribed by SADC Guidelines Governing Democratic Elections or the AU Charter on Democracy, Governance and Elections. As reality will show, though the MDC-T seem for now to be the most bereaved, it remains true that it is the generality of Zimbabweans who are at the fore of bearing the obnoxious effects of being subjected to an election in an environment that was neither free nor fair, and fails by many standards to qualify as a credible election. The fact that the GPA parties participated in these elections, cognizant of the prevailing conditions knowingly and willingly will however leave the electoral contestants with little to do but accept the result. The biggest losers will remain the people – frog-marched and coerced into an unfair contest by political parties. It remains to be seen if the AU and SADC will be brave enough to follow the letter and spirit of these two key provisions with respect to the Zimbabwean election. this is also in as far as they will be able to monitor subsequent elections in Africa objectively. For now, the people of Zimbabwe live to fight another day, for a genuinely free and fair poll.

The writer writes here in his personal capacity and can be contacted at tchimhavi@gmail.com

The broader implications of the NCA vs President Mugabe court case ruling

By Terence Chimhavi

The recent ruling by Judge President George Chiweshe in the high court case between the NCA and President Mugabe is a serious signal to the political environment obtaining in Zimbabwe and is a major pointer to the likely scenario that will prevail not only during the course of the referendum but also during the likely elections which the political leaders want to hoist onto the people of Zimbabwe at all costs.

Judge President George Chiweshe

Part of Justice Chiweshe’s ruling read:  ‘’These provisions are clear and unambiguous. I am convinced that the powers given to the first respondent [President] by section 3 of the Referendums Act, being wide, discretionary and unfettered, fall into the category of those powers under section 31, wherein the first respondent [President] is required to act on his own deliberate judgment. That being the case, I conclude that the content of the first respondent [President], in setting the date of the referendum and the time within which voters may cast their vote, is not subject to review by a court.’’ 

Put simply, the law of Zimbabwe says the executive president of Zimbabwe is not answerable to any individual or institution of our state for anything he may say or do.

Referendum ballot paper

Now, considering the fact that our country is fast moving towards two important national processes, namely the referendum and elections, the ruling is a pointer that cannot be ignored in as far as its significance to the likely environment that will prevail during the conduct of both processes is concerned. The merits of the NCA case are clear, as it is already apparent on the ground that the efforts of various stakeholders including Copac and some civic society organizations to get the draft to the people, and allow them ample time to deliberate on and discuss the draft so that they make an informed decision is simply not enough. It seems that the political parties in government are prepared to ignore the credibility of the referendum only because they find themselves on the same side of the coin, in campaigning for the adoption of the draft. In so doing, they may just be setting a dangerous precedent that will surely dent the credibility of the elections as well.

A referendum is more like a general election

The Referendum’s Act clearly suggests that a referendum in Zimbabwe is treated as a general election and as such all sides, in this case the YES and NO sides ought to be given fair and equal treatment. After all, that is the whole essence of attaching a choice to the whole equation, YES or NO. Furthermore, it is a fundamental tenet of the conduct of a democratic, free and fair, credible election. What it then means is that, contrary to the scenario we are currently witnessing, both sides should enjoy the same obligations of the state such as access to the state media and resources to campaign for their positions. They should enjoy the same status of being able to go into the communities and campaign for their positions. Currently, it is only Copac and those accredited to it that can go into the communities and meet the people, without having to notify the police as prescribed under the obnoxious POSA.

The authors of the Copac draft

What is clear from the current scenario is that the electoral playing field remains skewed in favour of Zanu PF, and this is worrisome and seems to suggest that other reforms outside the completion of the constitutional reform exercise, agreed to in elections roadmap will not be adequately addressed to ensure that both the referendum and elections are credible, as they are conducted in an environment that is not free and fair to all contesting sides. That the two MDC formations find themselves on the same side with Zanu PF on the constitutional reform exercise and in pushing for the adoption of their draft constitution at the referendum does not diminish the fact that the referendum ought to be a credible process. Even in their perceived minority, all those that are opposed to this draft are still Zimbabweans and they deserve their right to air their position and campaign for the same. The MDC formations should not be too comfortable with this uneasy arrangement simply because they seem to be enjoying the unfettered freedoms that Zanu PF has kept to itself all along. After all, with this environment prevailing, they will run to the same courts to seek the same justice that the NCA is seeking, come election time.

The referendum should also be free, fair and credible.

While it remains to be seen whether the ensuing two weeks to March 16 will see any change in terms of the electoral playing field, it needs no over-emphasis to assert that the environment that will prevail during the course of the referendum is the likely environment that will prevail during the conduct of elections, simply because it favours Zanu PF. I was really shocked listening to Hon. Douglas Mwonzora from Copac asserting at a public meeting that as the MDC they were ‘thrilled’ by Justice Chiweshe’s ruling. Surprisingly, the ruling clearly goes against the same electoral reforms that the MDCs are pushing for. Had they received proper advice, they should have been the first to question this ruling, which clearly puts them in danger of supporting the skewing of the electoral playing field ahead of the referendum and possible elections.

In addition, and from another important angle, the ruling seems to buttress the reservations that many people have come to have with the constitutional provision for an executive presidency. The ruling by Justice Chiweshe that the executive president’s decisions cannot be questioned highlights the powers of an executive president, and it clearly confirms the long-held trepidation for the executive presidency, which position they unwittingly retain in the Copac draft under section 89. For as long as they remain silent in the face of such wanton bias, they will be complicit in creating an unequal playing field in the contest that they are agitating for, and rest assured, this is the same treatment they shall get come election time. That is why all right-thinking Zimbabweans should take this ruling by Justice George Chiweshe as an indicator of the times that lie ahead as we approach the referendum and elections in Zimbabwe.

The writer can be contacted on tchimhavi@gmail.com