Proactive disclosure of information post the 2013 Model Law on Access to Information: Assessing the compliance of the Zimbabwe Electoral Commission with the Guidelines on Access to Information and Elections in Africa and the Declaration on Principles of Freedom of Expression in the 2023 harmonised elections.

Author: Idirashe Amanda Chikomba 
Human rights lawyer

Introduction

Regional and international instruments guarantee the right to access information. Article 9 of the African Charter on Human and  Peoples Rights (African Charter) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provide for the right to access and receive information. Both treaties have been ratified by Zimbabwe. Section 62 of the Constitution of Zimbabwe, 2013 (the Constitution) also guarantees the right to access information. The provision enunciates access to information to every Zimbabwean citizen or permanent resident, including juristic persons and the media. The duty bearers are outlined as any institution or government agency for purposes of public accountability.

In Zimbabwe, duty bearers (public entities, public commercial entities, or holders of a statutory office) have a mandate to ensure that there is a written information disclosure policy as an avenue for disclosing information in the interests of public accountability or for the protection of a right, in accordance with section 5 of the Freedom of Information Act, 2020 (the Act). The objective of this article is to briefly interrogate and ascertain the compliance of the Zimbabwe Electoral Commission with provisions of the Guidelines on Access to Information in Africa and the Declaration on Principles on Freedom of Expression on proactive disclosure. This is particularly relevant as Zimbabwe had its 2023 general elections in August 2023. The article will interrogate what happened before and during the election cycle.

Access to information is relevant in a democratic society to, among other objectives, curb corruption and ensure citizen participation for purposes of communicating information, developing relationships, developing the capacity to act, and preserving or changing conditions.  Public institutions must endeavour to proactively provide information to the public. The Model Law on Access to Information for Africa (the Model Law)  in sections 2 and 7, highlights the scope and the importance of proactive disclosure. The principle of proactive disclosure is integral in ensuring transparency and accountability of the duty bearers and the advancement of the citizenry’s human rights. It entails that public institutions that hold information of public interest must routinely provide such information to the public even without being requested to do so.  Principle 29 of the Declaration of Principles on Freedom of Expression mandates public bodies and relevant private bodies, despite the absence of a specific request, to proactively publish information of public interest, including information about their functions, powers, structure, officials, decisions, budgets, expenditure and other information relating to their activities. Article 17 of the Guidelines on Access to Information and Elections in Africa lays down certain areas to which Electoral Management Bodies (EMBs) ought to proactively disclose information. This article will focus on the following: (a) -(c), (e) and (f).

In accordance with section 62(4) of the Zimbabwe Constitution, which enunciates that legislation must be enacted to give effect to access to information, the Freedom of Information Act 1 of 2020 was enacted.  The Act replaced the Access to Information and Protection of Privacy Act  (AIPPA), which was criticised for its unconstitutional provisions. The Freedom of Information Act provides that public institutions must ensure information is disseminated and received by the public upon request within a reasonable time and also indicates the importance of giving reasons when access to information is denied. There is no express provision for proactive disclosure of information. 

Zimbabwe Electoral Commission

The Zimbabwe Electoral Commission (ZEC) is the electoral management body in Zimbabwe. It is established under section 238 of the Constitution. Its mandates include compiling the voters’ roll and registers. The Electoral Act [Chapter 2:13], in section 3(c)(v) and (d)(ii), provides for principles necessary for democratic elections. It provides for access to reasonable information for political parties and candidates for purposes of participating effectively in every election.

 The voters’ roll should be easily accessible upon request, free of charge, by the public as prescribed by law in section 21(1) of the Electoral Act. As of 2023, in the pre-election period, various organisations and institutions had an interest in accessing the voters’ roll for purposes of ensuring transparency and most importantly, a free, fair, and credible election. Following the chaos emanating from the by-elections of 26 March 2022, an inspection of the voters’ roll became imperative. The Electoral Resources Centre (ERC) and a Member of Parliament, Allan Markham, sought access to the electronic voters’ roll. The ERC requested to be furnished with a copy of the electronic national voters’ roll but ZEC opted for a hard copy version. This is despite the proviso in section 20(3) of the Electoral Act which encourages the voters’ roll to be kept in both print and electronic format. This cost US$1 a page, which translated to US$187 238 for its acquisition, an affront to the right to access information.

 ZEC did not proactively avail the voters’ roll in a format easily accessible to the public without any impediments, falling short of the criteria enunciated in the Model Law. It also falls short of the criteria laid out in Article 17(e) and (f) on the Guidelines which speaks to the proactive disclosure of information on the voters’ roll and pertaining to the arrangements for its inspection.  The option of providing access to the voters’ roll to walk-in clients free of charge, without another alternative, is not sustainable as it does not cater for those individuals who are domiciled far away from the ZEC Head Office. The consolidated national voters’ roll is only available at the Head Office in Harare and is not decentralised. While section 21(1) provides that the roll may be inspected free of charge, section 21(3) stipulates that the voters’ roll can be availed in printed or electronic format at a prescribed fee. The law in itself is unconstitutional. The unconstitutionality aspect arises from the provision which states that the voters’ roll may be availed at a prescribed fee. For a critical issue such as elections, access to information considerations have to be prioritised in the public interest. A prescribed fee may potentially impede the indigent from accessing such critical information. Resultantly, for purposes of accessibility, US$1 per page is not reasonable nor proportional, nor is it justifiable, considering that the total estimated cost of accessing printed copies of the voters’ roll amounted to US$187 238. 

Section 62(4) of the Constitution provides that the freedom to access information may be restricted in the interests of defence, public security, or professional confidentiality, to the extent that the restriction is fair, reasonable, necessary, and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom in line with section 86(2) of the Constitution. In the Allan Markham case, he challenged the failure of ZEC to release the voters’ roll timeously, stating that the ZEC taking 58 days to release a hard copy of the voters’ roll was excessive. However, the High Court sitting in Harare dismissed this case, alleging that the electronic voters’ roll could not be furnished, limiting the right purportedly for national security reasons, citing sections 13 and 18 of the Cyber and Data Protection Act [Chapter 12:07]. While this may purport to be a legitimate aim, as envisaged by the limitations in Articles 9 and 19 of the African Charter and ICCPR respectively, it is not, as it does not satisfy the conditions of proportionality.

The court did not make an effort to balance the right to access information and the need to protect national security. The electronic format of the voters’ roll may have been provided by way of a Compact Disc (CD) or other types of closed formats such as the portable document format (PDF), thereby preserving the integrity of the voters’ roll. After all, Principle 29 of the Declaration mandates that information required to be proactively disclosed shall be disseminated through all available mediums, including digital technologies. States are encouraged to proactively publish information in accordance with internationally accepted open data principles. ZEC has failed to comply with international human rights standards on access to information.

Controversy has surrounded the release of the delimitation report by ZEC. Its release was marred by inconsistencies and what seemed to be an incorrect interpretation of the law concerning the time when the report and which report should be presented before President Emmerson Mnangagwa by ZEC. This prompted one Tonderai Chidawa, a  ZANU PF member, to institute a constitutional challenge, on the pretext that Parliament failed to act in accordance with section 119 of the Constitution. The challenge was, however, dismissed. There is no evidence that information relating to the now-existing wards and renamed constituencies has been sufficiently disseminated to the rural and low-income communities in Zimbabwe (Article 17(b) and (c) of the Guidelines). This has been detrimental to the citizens who were voting in the primary elections. The delimitation report is available online and is very voluminous. There is no evidence of efforts to disseminate it using other easily accessible means that can be comprehended by citizens without access to the internet.

ZEC failed to provide a detailed electoral calendar (Article 17(a) of the Guidelines). It is unfathomable that in May 2023, the only information the public was privy to was that elections would be conducted in August 2023, according to the State-run newspaper, The Herald. No specific date had been provided. A brisk browse of the ZEC website proved futile as the calendar of events was last updated in December 2022.

The Presidential Proclamation on elections was eventually gazetted on 31 May 2023. Information relating to the polling date was publicised in mass media including radio and newspapers, which allowed for this information to reach the registered voters timeously.  When the polling day (23 August 2023) was announced and finally came, it was not short of surprises. Voters were queued outside polling stations at the stipulated time, 0700 hrs but voting could not commence due to a lack of voting material. ZEC did not notify the public of any challenges, only issuing a statement after facing backlash on social media platforms, in violation of Article 18 (a) and (b) of the Guidelines. Some polling stations for example in Kuwadzana and Tnywald in Harare West were not open until late in the evening or early the next morning due to the unavailability of local authority ballot papers. No information was availed to the electorate in due time. Scores of people failed to cast their votes on 23 August 2023 as a result of the delays. Some waited for hours without any communication from ZEC as to when voting would commence in their respective areas.

Notwithstanding the provisions of the Guidelines, ZEC still did not avail a copy of the final voters’ roll to the main opposition, Citizens Coalition for Change, a week before the polls. Despite an appeal to the High Court, the matter was dismissed as not urgent. This precluded an audit of the voters’ roll beforehand, which resulted in quite several voters not finding their names at their respective polling stations on the day of the election. Even the SADC Observer Mission preliminary report flagged this out as one of the issues that put the Zimbabwean election into disrepute.

Despite all these glaring irregularities in the 2023 harmonised elections, Emmerson Mnangagwa of ZANU PF was declared the winner of the Presidential election. The election was disputed but no formal court challenge was filed. In October 2023, during the first Parliament sitting, some Members of Parliament of the Citizens Coalition for Change were recalled by one Sengezo Tshabangu, purporting to be the interim Secretary General of the party, alleging that the recalled individuals had ceased to be party members. This led to a pronouncement of by-elections which were scheduled for 9 December 2023. On 9 December 2023, eight by-elections were conducted for the purpose of filling constituency and ward vacancies occasioned by the recalls.

While ZEC was expected to conduct voter education and disseminate information in keeping with the tenets of proactive disclosure, the institution was not very visible in the run-up to the by-elections. ZEC mostly engaged with people online, a means that some of the electorate have no access to. However, by and large, ZEC seems to have performed much better in ensuring proactive disclosure of information in the 9 December 2023 by-elections, compared to the 23 August 2023 harmonised elections, as voter education was conducted and ballot papers with the correct information were availed in time for the polls.  

Conclusion

There is no doubt that proactive disclosure and access to information held by public institutions ensures accountability to the citizenry. In the pre-election period, the Zimbabwean courts failed to ensure that public institutions such as ZEC adhere to the tenets of access to information, including proactive disclosure. If the courts fail to give effect to these constitutional provisions that promote transparency and accountability by public bodies, then the ability of citizens to hold public actors to account will be violated. The Zimbabwe Electoral Commission disregarded national and regional standards as there was no deliberate effort to proactively disclose information on the voters’ roll and the delimitation report in easily accessible formats, which could be interpreted as a sign of institutional capture by the current regime. This was the case in the August 2023 harmonised elections. However, the institution may have redeemed itself in the 9 December 2023 by-elections as there was a considerable improvement in how information was disseminated to the electorate.

About the Author:

Idirashe Amanda Chikomba is a human rights lawyer practicing with the Zimbabwe Lawyers for Human Rights (ZLHR), a not-for-profit law-based organisation. She obtained a Bachelor of Laws Honours Degree from the University of Zimbabwe in September 2017. She obtained a Masters in Human Rights and Democratisation in Africa (with distinction) from the University of Pretoria, Centre for Human Rights in 2023. She specialises in representing Human Rights Defenders arrested for exercising their constitutional rights. She has successfully ensured the acquittal of several Human Rights Defenders including political activists. She has also successfully litigated in favour of victims of police brutality. She is an avid contributor to the literature of ZLHR as she has contributed to its publications and position papers.