The Zimbabwe Electoral Commission sworn in last week has Constitutional Responsibilities under section 100C of the Constitution to “prepare for, conduct and supervise” Presidential, Parliamentary and local authority elections and referendums, and to ensure that they are conducted “efficiently, freely, fairly, transparently and in accordance with the law”.

Led by its Namibia-based chairperson Justice Simpson Mutambanengwe and his deputy Mrs Joyce Kazembe, other ZEC commissioners are Dr Petty Makoni, Mrs Sibongile Ndlovu, Mrs Bessie Nhandara, Mr Daniel Chigaru, Prof Geoff Feltoe, Mr Mkhululi Nyathi and Mr Theophilus Gambe.

Prime Minister Morgan Tsvangirai described the swearing in as positive towards achieving the much sort after democratic space in Zimbabwe. While his deputy Arthur Mutambara added said it was quantifiable and measurable progress.

Below, Veritas, analyses some of the challenges the new body will face.

In addition ZEC is responsible for:

· supervising the registration of voters by the authority charged with that responsibility under the Electoral Law [i.e. the Registrar General]

· compiling voters’ rolls and registers and ensuring their proper custody and maintenance [ZEC must compile the rolls from data collected and recorded by the Registrar-General — a curious and unhappy division of labour]

· designing, printing and distributing ballot papers, approving the form of and procuring ballot boxes, and establishing and operating polling centres

· delimiting constituencies and wards

· conducting voter education

· accrediting election observers

· giving instructions to State and local authority employees for the purpose of ensuring efficient, proper, free and fair conduct of elections and referendums

· exercising any other function assigned to it under the Electoral Act or any other law

Limitations of these Functions and Powers

Registration of voters: The Registrar-General and his officers remain responsible for registering voters and although in terms of section 18 of the Electoral Act the Registrar-General should be subject to the ZEC directions in this matter, there are no provisions to ensure his compliance.

He is a public servant in the Ministry of Home Affairs, not a ZEC employee, and has always exercised a considerable measure of independence.

Compiling voters’ rolls:

Under section 24 of the Electoral Act, constituency registrars enter voters’ names on the appropriate roll as soon as the voters have been registered. The registration of voters and the compilation of the rolls is therefore a single process, and is conducted by constituency registrars who are under the control of the Registrar-General.

ZEC itself is not directly involved in compiling the rolls and the only way it can influence the process is by giving directives to the Registrar-General and it may be difficult to ensure his timely compliance.

Delimiting constituencies and wards: This process is largely under ZEC’s control, but its control is not absolute. Delimitation must precede a general election, so the timing depends on the President‘s decision to call elections, and previous delimitations have always been rushed, with ZEC’s predecessors relying on the Registrar-General’s often inaccurate information about the numbers of voters living in each area and with insufficient time for public input.

Conducting voter education: This is spelt out in Part IV of the Zimbabwe Electoral Commission Act, which gives ZEC a virtual monopoly of voter education – ZEC itself has an obligation to provide voter education, and anyone other than a political party who wants to provide voter education must get ZEC’s approval.

But, who ZEC can approve is limited by the Act – they can only approve local organisations registered under the PVO Act and these may not use foreigners to give instruction. Any foreign funding for voter education whether by ZEC itself or by local ZEC -approved organisations has to go through ZEC, but such funding is subject to Ministerial approval.

Accrediting election observers: Although the Constitution gives ZEC the function of accrediting election observers, it must do this in accordance with section 6 of the Electoral Act, which vests accreditation in an Observers’ Accreditation Committee consisting of equal numbers of commissioners and nominees of Ministers and the Office of President and Cabinet, with the Minister of Justice, who is currently responsible for the Electoral Act, and the Minister of Foreign Affairs having a veto over their accreditation.

Use of State and local authority employees: The power to give instructions is not backed up by effective machinery to ensure compliance.

Other functions: Under the ZEC Act, the Commission has the power to make regulations – but the regulations have to be approved by the Minister of Justice. For example, any regulations it makes for political party access to public broadcasting media during election campaigns have to be approved by the Minister – currently Minister Chinamasa.

ZEC must also monitor media conduct generally during campaigning; but in the past has not had sufficient resources to conduct meaningful monitoring and the resources come from the Ministry unless ZEC gets donations – but these also require Ministerial approval.

Allocation of Electoral Act to Minister of Justice

In the recent gazetting of Ministerial functions the President surprisingly allocated the administration of the Electoral Act and the Zimbabwe Electoral Commission Act to the Ministry of Justice and Legal Affairs, rather than the new Ministry of Constitutional and Parliamentary Affairs.

ZEC requires the Minister’s approval for making regulations, borrowing money and accepting donations.

Setting up ZEC: A Long Drawn-out Process

The new ZEC was established by Constitution Amendment No. 19 in February 2009. In August 2009Parliament interviewed candidates and submitted its list of nominees, from which the President had to appoint 8 members. The selected members were only announced on 21st December – the interval having been used to reach a party-political compromise on membership.

The chairperson was appointed by the President after consultation with the Judicial Service Commission and Parliament. The President also appointed the vice-chairperson in term of the ZEC Act from the 8 members. Under the GPA he was obliged to get the agreement of the Prime-Minister for these two appointments.

ZEC’s Status under Electoral Laws

The Zimbabwe Electoral Commission [ZEC] has been through several metamorphoses. It was originally established by the Zimbabwe Electoral Commission Act of 2004. It was then re-established as a constitutional body in 2005, by Constitutional Amendment No. 17 which inserted a new section 61 in the Constitution establishing ZEC and setting out its functions.

The problem is that there was no provision stating that the new ZEC was a reincarnation of its predecessor, or that commissioners and staff should continue to hold their offices.

Despite this, in fact it was tacitly accepted that ZEC continued as it was in 2005 and staff continued in office and new commissioners were not appointed till 2006.

In February 2009 Constitution Amendment No. 19 replaced section 61 with a new section 100B establishing a new ZEC and once again setting out its functions. There was nothing in the provisions to indicate this was a continuation of the 2005 ZEC – in fact there were significant differences between the old ZEC and the new one in regard to composition and method of appointment of members.

Until the new ZEC was appointed last week, there was no legal ZEC in existence to employ and pay staff. This issue may cause difficulties for the new ZEC:-

· If staff have continued in office, the new ZEC may be caught in a dilemma – they may want to start as “new brooms” and appoint their own staff, but at the same time have to solve the staffing and remuneration questions that have been let slide.

· Again, as the old ZEC was abolished in February 2009 when Constitution Amendment No. 19 was enacted, the commissioners ceased to hold office then and should not have been entitled to any remuneration or benefits since then.

· Anything done after February 2009 by the old ZEC could be considered to have no legal validity. This may cast doubt on the Commission’s report on the 2008 elections, which was not presented to Parliament till May 2009.

Will the new ZEC be able to ensure free and fair elections in Zimbabwe?

Regrettably, no. Although ZEC is responsible for conducting elections, there are impediments, both legal and institutional, which seriously limit the Commission’s power to ensure that elections are free and fair. Some of these have been dealt with above, but there are more:

· ZEC cannot control the timing of elections. General elections are called by the President with the agreement of the Prime Minister [GPA, Article 20.1.3(q)], while parliamentary by-elections have to be called within 14 days after the President is notified of a vacancy in Parliament [Electoral Act, section 39]. This means that ZEC usually has only a short time within which to plan and organise elections.

· There is no easy and quick way to restore credibility to the voters’ rolls. ZEC cannot order a new registration of voters – there is no provision for it in the present Electoral Act. Without accurate voters’ rolls it is impossible to delimit electoral boundaries, and any election conducted on the basis of defective rolls is open to suspicions of rigging.

· ZEC does not have sufficient staff to conduct elections itself and must rely on civil servants assigned to it by the Public Service Commission, the Health Service Board and local authorities under section 17 of the Electoral Act. This is inevitable, because obviously ZEC shouldn’t have to engage large numbers of employees to be kept on standby pending the calling of an election, but there is a danger that some sections of the Public Service are thoroughly party-politicised.

· ZEC cannot control the electoral environment, i.e. the general atmosphere in which an election is conducted. If there is widespread intimidation or violence in the run-up to an election, there is little that ZEC can do to stop it – for that it has to rely on the Police and Defence Forces, whose conduct in previous elections has been widely criticised as party-politically partisan.

· While ZEC has far-reaching powers to make regulations for the conduct of elections, its power to do so is subject to approval by the Minister responsible for the Electoral Act – currently the Minister of Justice. In this important respect, therefore, ZEC is not independent.

· While ZEC must ensure that elections and referendums are conducted transparently, there is no legal requirement that the Commission itself must act in a transparent manner. This is not a fatal defect in itself, but if ZEC’s decision-making processes are not completely open there may be suspicions that ZEC is being subjected to political manipulation.

Funding of ZEC

The 2010 Budget allocates an amount of US$ 4 175 000 for ZEC operations for the whole of 2010, under Vote 21: Ministry of Justice and Legal Affairs. The breakdown of the allocation – how the funds will be spent – is not set out. Donations or grants from local or foreign sources may be accepted – but only with the consent of the Minister of Justice and Legal Affairs.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

VERITAS