ZIMBABWE: Doubt over extent of electoral reform ahead of poll

[ This report does not necessarily reflect the views of the United Nations]

HARARE, 23 Feb 2005 (IRIN) - Even before the ballots are cast in Zimbabwe's legislative elections next month, controversy has surfaced over the fairness of the poll.

The opposition Movement for Democratic Change (MDC) has argued that recent reform of the country's electoral laws has been too little and too late. They contend that repressive legislation governing public assembly and free speech remain on the statute books, and together with growing political violence, will serve to undermine the poll's legitimacy.

The Zimbabwean government has countered that by the standards of the region, its electoral process is above board.

"It is now again the time to demonstrate to the world that it is we who established democracy in Zimbabwe," President Robert Mugabe told ZANU-PF delegates at the launch this month of the ruling party's campaign, a reference to the nationalist struggle that ended white minority rule in 1980.

The fears of the opposition and pro-democracy groups are based on the experience of the legislative election in 2000 and the presidential poll in 2002 - both won by President Mugabe and ZANU-PF - but marred by serious irregularities, according to observers.

The MDC, formed only a year earlier, challenged the 2000 results in a number of constituencies, and its leader, Morgan Tsvangirai, is still contesting the presidential election results in the courts.

The party pointed to problems with the voters' roll and accused government-instituted electoral bodies, such as the Electoral Supervisory Commission, the Registrar-General's office and the polling personnel, of bias.

International monitoring bodies, including the European Union (EU) and the Commonwealth, also voiced their reservations.

In August last year Zimbabwe adopted Southern African Development Community (SADC) guidelines governing democratic elections and subsequently modified its electoral laws, but the government has rejected calls from the MDC and pro-democracy groups for a still more level playing field.

The South African government - under pressure to mediate in Zimbabwe's political crisis since 2000 - recently expressed the hope that its neighbour's 31 March poll would be credible.

"There are some positive developments, which give us hope that Zimbabwe should come as close as possible to the protocols that have been agreed by SADC," Joel Netshitenzhe, a South African government spokesman, told Zimbabwe's official Herald newspaper recently.

ELECTORAL REFORMS

Among the changes to the electoral process are that voting will be conducted on a single day, instead of on two or three days as was previously the case, in order to minimise the possibility of irregularities.

Translucent ballot boxes will now be used; the number of polling stations will be increased; and verification of ballots will take place at the stations, again to avert rigging.

In accordance with the SADC principles, the new legislation specifies that an electoral court will deal with disputes among individuals or political parties arising from the conduct of polls.

Another new law, the Zimbabwe Electoral Commission Act, also passed recently, provides for an independent electoral body - the Zimbabwe Electoral Commission (ZEC) - to be responsible for preparing and conducting elections and referendums.

President Mugabe has announced the members of the ZEC, headed by George Chiweshe, a High Court Judge and former army major.

Chiweshe claims the commission is geared for the work ahead, and has opted for a senior civil servant, Lovemore Sekeramai, to be his chief election officer for the March poll. ZEC agents will be drawn entirely from the civil service.

Prior to the establishment of the ZEC, elections were conducted by the Electoral Supervisory Commission (ESC) and the Registrar-General.

The ESC will supervise the ZEC, with justice minister Patrick Chinamasa saying that Zimbabwe was following models in countries like Mauritius, where the electoral body is monitored by another institution.

Despite these reforms, politicians and commentators feel much more needs to be done to ensure democratic elections in March and beyond.

The Zimbabwe Electoral Support Network (ZESN), a coalition of NGOs formed to co-ordinate electoral activities, said in a recent report, 'The SADC Electoral Principles and Guidelines and Zimbabwe's New Electoral Legislation', that the country was not ready for free and fair polls.

"There is little in the Zimbabwe Electoral Commission Act or the Electoral Act to ensure an environment in which human and civil rights are fully enjoyed ... The freedoms specifically mentioned in the SADC principles - freedom of assembly, association and expression and political tolerance - are not respected in Zimbabwe," ZESN alleged.

The biggest attack on the reforms has centred on the independence of the ZEC.

David Chimhini, director of the Zimbabwe Civic Education Trust (Zimcet), said the positive electoral changes were being overshadowed by "lack of clarity [regarding the] independence" of the ZEC.

"From last year, when government began to make changes, many people were optimistic that good things were coming. However, the latest developments, particularly regarding the setting up of an independent electoral body, have dampened that optimism," Chimhini told IRIN.

"The ZEC will not be independent at all, considering that it will have to be monitored by yet another body - the Electoral Supervisory Commission - whose members are elected by government. It is confusing - why there has to be another body above the ZEC - and one might be tempted to believe that there are fears that the ZEC might become too influential, considering that it also consists of top figures from the MDC and [the] ZANU (Ndonga) [opposition party]," he added.

People were bound to be sceptical of the electoral bodies, Chimhini said, because the ESC and the Registrar-General's office had been tainted by alleged irregularities in previous polls.

"[The ESC supervision of the ZEC] takes away the independence of the ZEC, and it would be safe to say the government has failed one of the most important tests of SADC because, in the absence of an independent body, free and fair elections cannot be guaranteed," he commented.

Also, given that the Registrar-General presided over the much-maligned voters' roll, the ZEC will have to rely on a document it had no hand in compiling.

As a former military figure, Chiweshe is viewed by the opposition as too pro-government to be an impartial head of the ZEC. ZESN noted its concern over the Electoral Act provision allowing civil servants, including soldiers and policemen, to be seconded to the staff of the ZEC and ESC.

Chinamasa has defended Chiweshe, saying the new chair of the commission had vast knowledge of electoral issues, having been a member of the constituency delimitation commission, as well as a judge. In an interview with the Herald shortly after the names of the ZEC members were announced, Chinamasa described Chiweshe as an objective and impartial person.

RESTRICTIVE LAWS

Legal experts and civil society groups have bitterly complained that some of Zimbabwe's laws are too restrictive to ensure free and fair elections, and run contrary to SADC guidelines on democratic polls.

They often cite the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA), which can restrict freedom of assembly, the right to make an informed choice of a candidate and the freedom of expression required for credible elections.

"For as long as POSA and AIPPA exist in their current form, we can just as well forget about democratic elections. They run contrary to the tenets of free and fair elections, and something should have been done long back to amend them," James Mutizwa, a member of the Law Society of Zimbabwe told IRIN.

POSA, which purports to "make provision for the maintenance of public order and security", became law in January 2002, about two months before the presidential elections, replacing the Law and Order (Maintenance) Act (LOMA) promulgated by Ian Smith's Rhodesia to deal with nationalists fighting for the independence of the country.

Even though POSA replaced LOMA, experts say it has retained most of the repressive provisions in the Rhodesian legislation.

Under sections 17 and 19, the law defines a political gathering as a group of two or more people and requires those intending to hold meetings in a public place to notify the police four days in advance at the latest, failing which the police might restrict or prohibit the meeting (sections 25 and 26), and are entitled to shoot to kill if there is resistance (section 29).

In Part II, sections 12, 15 and 16, POSA says it is illegal to engage in activities that might cause disaffection for police officers or members of the defence force; or communicating a statement that promotes disrespect for the president or institutions of government.

AT THE DISCRETION OF THE POLICE

Chimhini, the director of Zimcet, said the police often misapplied the law when dealing with public gatherings.

"There is confusion among police officers regarding the handling of public gatherings. The law directs that those wishing to hold meetings should merely notify the police of their intention but, since the law came into force, they have been insisting that the law enforcers should authorise the meetings," he noted.

"In most cases, where the opposition is concerned the notifications have been declined, with the police giving one excuse or another; where meetings have gone ahead, they have often been violently disrupted," Chimhini told IRIN.

"The obvious effect is that citizens are denied the right to fully participate in the political process, as stipulated under Section 2.2 of the SADC guidelines," he pointed out.

The police have often been accused of applying POSA selectively. "One gets the impression that POSA was created for the MDC, civic society and the opposition. I am yet to come across an instance of ZANU-PF supporters being arrested for holding an unsanctioned rally, yet we know they have been organising so many of them," Chimhini alleged.

The police have also been accused of raiding meetings in non-public places, such as the recent arrest of an MDC campaign manager during a meeting with candidates in a hotel room.

According to analysts, AIPPA also denies the electorate the freedom to make informed decisions regarding their votes because of the restrictions it places on the media.

Journalists must adhere to stringent requirements in order to be registered by the government, and the act also criminalises the publication of falsehoods, which law experts and media analysts say has not been clearly defined.

Since AIPPA's enactment in 2001, numerous journalists - all from the private media - have been arrested for allegedly publishing falsehoods, but none have been convicted.

The MDC, a broadbased party formed in 1999, is the main political challenge to President Mugabe and ZANU-PF's hold on power. In 2000 the party clinched 57 parliamentary seats against the ruling party's 62 elected seats - a result whittled away in successive by-elections.