2018 polls, SADC guidelines and the Constitution

Source: 2018 polls, SADC guidelines and the Constitution | The Herald June 21, 2017

Sharon Hofisi Legal Letters
To every Zimbabwean citizen who understands the electoral cycles, the thought and spirit of the Constitution, on which the conducting of elections is largely based, nothing is more important than the need to know what the Constitution says about human rights and multiparty democracy.

The revised SADC Principles and Guidelines Governing Democratic Elections, 2015, as part of soft law sources on human rights, define an electoral cycle to mean “all interrelated segments of the electoral process during which key undertakings are carried out in the pre-election, election and post-election periods”.

The guidelines provide a normative framework for elections which also includes such important aspects like credibility – restoration of the confidence of the citizenry and the regional bodies through mutual agreement by the stakeholders that the election is credible; and the democratic element – must be competitive, periodic and regular through a secret ballot and in consideration of broad human rights and freedoms.

Above all, integrity of elections is important in that it gauges whether an election is in conformity with regional and international norms and standards.

Elections, in the minds of most people, mean merely to vote; to choose Members of Parliament, senators and the President; to join party supporters on the way to the polling station; just to “cast a vote for my favourite candidate in the Legislature or the Executive”.

Once a vote is cast, the party of choice can win the elections and we either maintain the government in power or herald the coming of another party in government. This is a caricature of the conventional, living electorate.

Now the legal theory behind elections is laid out in the Constitution. Zimbabwe has a constitution that specifies that (i) elections are part of the founding values and provisions in our constitutional democracy; (ii) an electoral practice that is inconsistent with the Constitution is to be judged according to the supreme clause (iii) the right to vote is part of the fundamental human rights that must be protected, promoted, and respected by State institutions.

A survey of the constitutional provisions in this article speaks to some of the ways in which the right can be protected and the norms that are supposed to be considered as part of the obligations that must be fulfilled by the State and institutions such as the Zimbabwe Electoral Commission.

The constitutional position on elections is that they must be regular, free and fair. By way of election, regular elections can be understood using the Jealousy Mawarire case where the applicant went to court to compel the President to declare an election date. The simple argument in that case was that five years had gone by and those in power then had to be voted out.

Ceteris paribus, the argument on whether or not the legal infrastructure could lead to free and fair elections ends on a narrow theory of some sort – what is a regular election? The answer lies in the fact that the applicant’s right to a regular election was being violated by the delays in proclaiming an election date.

Regard must be had to the SADC Guidelines on what constitutes free and fair elections. Free elections envisage a situation where there is respect for fundamental human rights and freedoms during electoral processes.

Important freedoms in this process relate to speech and expression of the electoral stakeholders; and assembly and association; and access to information and right to transmit and receive political messages by citizens is upheld. The Constitution of Zimbabwe protects these freedoms under the Bill of Rights.

Added to these freedoms are principles that are also entrenched in our Constitution such as the principles of equal and universal adult suffrage, protection of the voter’s right to exercise their franchise in secret and register their complaints without undue restrictions or repercussions. Concern can be raised on the extent to which assisted voters are immune from restrictions and what repercussions are attached to this procedure.

Fair elections, according to the Guidelines, point to the need for the electoral process to be conducted in conformity with established rules and regulations, managed by an impartial, non-partisan, professional and competent electoral management body (EMB); in an atmosphere characterised by respect for the rule of law; guaranteed rights of protection for citizens through the electoral law.

The Constitution establishes independent commissions such as ZEC to promote vertical and horizontal accountability in elections. It must further the spirit of the SADC Guidelines by ensuring a continuous exercise where the Constitution is considered as the starting point in ensuring that there are reasonable opportunities for voters to transmit and receive voter information.

This access must be defined by an equitable access to financial and material resources for all political parties and independent candidates in accordance with the national laws; and where there is no violence, intimidation or discrimination based on race, gender, ethnicity, religious or other considerations specified in Guidelines.

The legislative infrastructure such as the Political Parties (Financing) Act and the Electoral Act must be urgently aligned with the Constitution and regard must be made to the need to ensure that restrictions on the funding of small political parties are removed before the 2018 elections.

Other important aspects to consider during the pre-electoral period are to be found in the definitional aspects of the electoral process in the Guidelines. These include key election-related undertakings such as the formulation of legislation, delimitation, conflict prevention and management initiatives, civic and voter education, registration of voters, development and implementation of codes of conduct, nomination of candidates, campaigning, voting, tabulation, results announcements and election adjudication.

By way of illustration, should ZEC be allowed to be a party to election proceedings as it did in the special voting litigation in 2013? Do we need a complete overhaul of the Electoral Act? Are citizens being consulted on changes to delimitation of constituencies? If not, what can Parliament do in light of the responsibilities of states that are envisaged by the SADC Guidelines?

At a constitutional level, Parliament is obliged to make sure that all institutions of Government at every level are accountable to it. By parity of reasoning, Parliament can also ensure that ZEC and the Electoral Court and magistrates appointed to deal with electoral-related violence are equipped with the normative literacy as envisaged by the Guidelines.

Added to this is the need for impact litigation by citizens and oversight institutions. Embedded in this is the need for courts and litigants to move away from ordinary rules of statutory interpretation towards adopting rules of constitutional interpretation – remember the Constitution is more than a statute -with a spirit, soul and body of rules that must never be separated if its life is to continue.

The Constitution is interpreted generously, wholesomely, historically, contextually and as living documents.

Because elections are part of human rights, key theories of human rights cannot escape scrutiny in this think-piece. The first theory proceeds from a human factor origin of human rights – they are given to humans by the deity (for those who are theistic); by some superior force (for the non-religious); and by the constitution; written or unwritten.

There must not be any “first-among-equals”. Electoral laws must have both a vertical and horizontal application.

The Constitution gives every Zimbabwean citizen the right to vote for a political leader of his or her choice in a “regular, free and fair election”. This right is, however, still not given to some citizens who may be in the Diaspora, prisons and hospitals.

ZEC should also not overly rely on logistical problems to deny beneficiaries of special voting procedures for police details and journalists. Doing so is no different from denying them the freedom to have equal benefit from, and equal protection of the law. The police and journalists must not be a disenfranchised lot – as they operate first under the call of duty – then their privileged voting.

The second theory sees human rights as products of an ideological war – they are fought for. Landmark events in history will show that class privileges were ended in France in 1799. The spirit of those times explain why the United States of America fought for its right to self-determination in the American War of Independence from Great Britain.

The same obtains for most countries that fought for the right to self-determination from colonial domination, Zimbabwe included. Black Zimbabweans were largely disenfranchised between the years 1923-1980. The few blacks who could vote had to demonstrate affluence or exceptional educational requirements.

Under colonialism, the regular elections were not always free and fair. In the same vein, the groups that were referred to above as being disenfranchised in Zimbabwe can utilise the legal protective mechanisms that are in the Constitution to seek protection by claiming from the State remedies for constitutional breaches.

Alternatively, oversight institutions, public interest groups and associations can approach the competent courts of law in terms of the legal standing provision in the Constitution, Section 85. By legal standing, it is meant that someone can appear in court to act on behalf of the disenfranchised group.

Interestingly, the Constitution also allows people to approach the court on an amicus curiae basis. Their expertise in a particular area allows them to approach the court as friends of the court. The Law Society and Madam Beatrice Mtetwa utilised this method in the matter where the Judicial Service Commission was appealing against the Romeo Zibani case.

Further guidelines on how people can fight for the rights of others are to be found in the Constitution and the rules of the Constitutional Court.

Two other similar theories are also important. Human rights are agreed upon and are continuously talked about. Zimbabwe went through a constitution-making process which culminated in the adoption of a home-grown Constitution in 2013.

Although that Constitution was engineered by political players in the GNU, and would perhaps qualify as part of a politically-driven process, about 94 percent of Zimbabweans voted for its adoption. Important things that were agreed on which relate to elections include multiparty democracy, freedom to petition and demonstrate in a peaceful manner, and political rights.

Multiparty politics thrives in Zimbabwe with dominant parties such as ZANU-PF and MDC-T and emerging parties such as NPP, and Transform Zimbabwe, asserting their roles in the 2018 election. For ZANU-PF and the MDC formations, they agreed on important provisions such as multiparty democracy.

They also agreed upon the freedoms such as petitioning Government and demonstrating against the State where they feel that certain aspects of governance are not being met.

The urgent concern of the electorate relates to biometric voter registration (BVR). The fears of the citizens must be allayed on the benefits and demerits of BVR. The process is not a screening-for-possible attacks. It eliminates ghost voting, electoral fraud and so on. Continuous and honest public awareness as envisaged by the Constitution is thus urgently needed.

Right holders who are also the most affected such as those people living with disabilities must also have Braille resources for the blind or visually impaired. Polling stations must be user-friendly for those with disabilities. Put simply, they must cast their votes with confidence.

Because rights must theoretically be deliberated upon, constitutional and gender issues such as the allocation of 60 parliamentary seats go beyond the targeted elections in 2018 and 2023. What is left as part of the discourse is the examination of the reasons why women parliamentarians can maintain their dominance after the expiry of the 60 seat positive discrimination.

Talking about the benefits of the entrenchment provisions on elections is also significant. Public debates, symposiums such as the one recently held by the Parliament of Zimbabwe, must be part of the culture of interaction among stakeholders in the justice sector.

Electoral justice must form part of this endeavour. That 2018 is an election year is now axiomatic bearing in mind that regular elections point to a five-year cycle for Zimbabwe. The constitutional position on the election year must not only proceed from the fact that there is a world of political parties but rather, constitutionally speaking, on the existence of political rights that are guaranteed in the Constitution.

What is apparent in the Constitution is that the conducting of elections is important in upholding the founding value – multiparty democracy. The concept of free elections depends on the idea that the electorate must be free to choose their political representatives – both in the Legislature and the Executive.

The major constitutional aspects of elections are shaped by the fact that every Zimbabwean has the constitutional freedom to form, join, and participate in the affairs of a political party of his or her choice.

Sharon Hofisi is a lawyer and writes in his personal capacity. Feedback: [email protected]