Elections are a few months away and the credibility of these elections is essential for the government that will hold office. The credibility will provide legitimacy for the next administration and encourage investment into the country amongst other things. For this to happen, several violations must be cured by the current administration.
By Paul Kaseke
The first obvious point of reference is the independence of the Zimbabwe Electoral Commission (Zec). It must appear to be independent and carry out its constitutional mandate without any interference from the Executive. Last week I addressed the President’s unlawful delineation of wards in Beitbridge. That is a function that belongs to Zec in terms of Sections 160 and 161 of the Constitution. This action undermines not only the Constitution, but the ultimate functions of Zec. There are many other instances of interference with the function of Zec, but these must not be allowed to continue. The President should amend his proclamation accordingly, to cure this violation.
In terms of s155 of the Constitution, the State has an obligation to ensure that all parties are granted fair access to electronic and print media both public and private. While ZBC aired the MDC Alliance rally recently much to the surprise of many, it should not be seen as a gesture of goodwill by the ZBC — it is a constitutional imperative and should become the norm rather than the exception. Failure to ensure fair media coverage by the State broadcaster will no doubt cast doubt on the integrity of the electoral process. This will level the playing field and ensure all parties are on the same footing as far as media coverage is concerned.
In addition to the above, the government needs to demilitarise the country, as there is no basis for deployment of the army across the country.
While the Constitution allows for the deployment of the army under the instructions of their Commander-in-Chief through s213, the basis of such deployment is clearly confined to instances where they assist the police to restore peace and when there is a need to defend the country. None of these grounds are present for the military to be as visible as it currently. It gives the appearance of a militarised State and this of course allows the argument of intimidation and militarised elections to be sustained.
In addition, the army cannot be seen to be partisan. This is, especially, relevant because in previous elections, the military was very vocal in indicating that they would not accept certain leaders, even if elected.
That cannot be repeated because s211 of the Constitution clearly states that the Defence Forces must be non-partisan and subordinate to civilian authority.
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Speaking of nonpartisan conduct, traditional leaders are required by s281 of the Constitution to act in a non-partisan and fair manner. They are also required to act consistently with the Constitution.
Recently, we have seen a dangerous interaction between chiefs and Zanu PF, with some of chiefs going as far as declaring that they would mobilise support for the ruling party. This was a response to the cars sourced by the Mnangagwa administration for chiefs across the country.
The unconstitutional remarks and conduct of the chiefs needs to be addressed, because their mandate is non-partisan. This too will serve to undermine the electoral process and give Zanu PF an unfair advantage over the other parties.
The donation of cars is highly suspicious given the timing of the donation. These chiefs already had cars from the Mugabe administration and one can infer that the recent donation served as a form of influencing chiefs.
The elections would not be free and fair if the Public Order and Security Act (Posa) and the Access to Information and Protection of Privacy were not amended extensively.
Both acts undermine the electoral process by stifling freedom of expression, right to protest and the right to assemble for political purposes.
Posa criminalises public meetings that are not sanctioned. This violates not only the right to protest in s59, but the right to freely assemble in s58 of the Constitution.
Section 25 of Posa requires groups to give notice of a gathering subject to the approval of the police. Failure to provide such notice attracts a one-year jail sentence and or a fine.
Section 26(9) allows the police, as the regulating authority, to prohibit a protest or gathering on the grounds that it is likely to cause the disruption of traffic and public disorder amongst other things.
This provision basically makes it impossible to have a protest or gathering in Zimbabwe, since rallies inherently cause disruption of traffic. These additional grounds for limiting a protest are unconstitutional, hence, they have been overturned and ignored in judgments that allowed protests to take place after police had refused to grant permission.
The clause requiring permission or approval being sought or granted by the police is reminiscent of emergency laws created by Ian Smith to stifle gatherings and limit freedom of expression.
In a constitutional democracy where the Constitution simply requires that there be a peaceful gathering, further, limitations of the right in the manner set out in Posa are unlawful in that frustrates the enjoyment of fundamental rights.
In my opinion, we should ideally see police merely receiving notice of a protest or rally, so they can co-ordinate traffic and security for the gatherings. ZRP cannot be given powers to determine who exercises a constitutional right or how. That should be left for the courts.
Section 27(1) provides for blanket bans on protests, which can be made for up to one month at a time. This too is unconstitutional.
The Mnangagwa administration must ensure that ancillary rights like the right to protest, assemble and participate in politics are not frustrated by draconian legislation.
This calls for the amendment of such laws to bring them in alignment with the Constitution.
Lastly and without overstating the obvious, the voters’ roll must be intact and accurate. It should be available for inspection by parties before the election begins. Failure to do this will give rise to questions of its accuracy and reliability.
Observers from across the world must be invited to observe the election process — something which the President has already committed to do. If the government acts on the various aspects discussed, the election process might be seen as free, fair and credible.
Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: [email protected] or follow him on twitter @paulkasekesnr
