Where to Zimbabwe? Another stage set for flawed elections under Mnangagwa’s leadershipPosted: 3 April, 2023 Filed under: Nqobani Nyathi | Tags: accountability, African Commission on Human and Peoples Rights, amendment of the Constitution, by-elections, constitution, Constitution of Zimbabwe, democracy, electoral disputes, Emmerson Mnangagwa, free and fair elections, government-affiliated media, Guidelines on Access to Information and Elections in Africa, human rights, Luke Malaba, peaceful resolution, Private Voluntary Organisations Bill, PVO Bill, rise to power, unlawful killings, violence, ZEC, Zimbabwe, Zimbabwe Electoral Commission 1 Comment
Author: Nqobani Nyathi
Doctoral Candidate and Project Officer, Centre for Human Rights, University of Pretoria
In 2018, and perhaps at the peak of his popularity, Emmerson Mnangagwa narrowly won a disputed Presidential election in Zimbabwe. In the aftermath, chaos ensued, and soldiers shot and killed people. No one has been held accountable so far, perpetuating an environment of impunity and fear. Mnangagwa’s unconstitutional rise to power the previous year had subverted democracy and as predicted, he has continuously demonstrated an unsettling disregard for the Constitution and the principles of democracy. Zimbabwe’s next general election is scheduled for some time this year, on a date yet to be announced. If Mnangagwa persists on his current path of undermining the Constitution, the election could lack the legitimacy necessary for a functioning democracy.
Under Mnangagwa’s tenure, one of the greatest setbacks has been the amendment of the Constitution. Some of the changes undermine the independence of the judiciary, a vital arm of government in the peaceful resolution of electoral disputes. These include the removal of the public participation in the appointment of some Judges and the extension of the retirement age of judges of the Constitutional Court and the Supreme Court from the mandatory 70 years to 75 years, subject to acceptance by the President, after consulting the Judicial Service Commission. Judges have to first prove their mental and physical fitness to remain in office, through a medical report.
Chief Justice, Luke Malaba who presided over the 2018 electoral dispute, ought to have retired on 15 May 2021, but courtesy of the contentious constitutional amendment, Mnangagwa extended his tenure post his retirement age. The amendment effectively took effect a week before his retirement. It is not clear how he managed to meet the Constitutional requirements within such a short time. Malaba CJ presided over the 2018 Presidential election challenge. Both the President and the Chief Justice seem to be unfazed by the negative implications. Perhaps they do not appreciate the significance of their respective offices in a constitutional democracy.
The attacks on members of the opposition in the run-up to some by-elections last year show that there are some pockets of violence that make the situation not conducive to free and fair elections. Again, no one has been held accountable. With unlawful killings in the 2018 electoral protests still fresh in the memory of many Zimbabweans, followed by cases of violence last year, it seems like a dereliction of duty that Mnangagwa has failed to appoint a Prosecutor-General (PG) since the previous PG resigned in March 2022. It raises serious questions about Mnangagwa’s commitment to accountability for those who commit electoral-related offences, including cases of violence. Further, the police have severely restricted the freedom of association of the main opposition party, the Citizens’ Coalition for Change (CCC) members, occasionally arresting them. Effectively this has resulted in a situation where the main opposition party is either unable to campaign effectively, or where their supporters are too afraid to associate freely.
Another part of the stage for flawed elections is the Private Voluntary Organisations Bill (PVO Bill) which has passed through Parliament and Mnangagwa has promised to sign it into law despite its fundamental flaws that undermine freedom of association. The PVO Bill have some problematic provisions that include the ability to reject the registration of PVOs by a Registrar who appears to have extensive powers, including monitoring the activities of non-governmental organisations. Further, non-governmental organisations will be criminalised for supporting any political party or candidate in a vaguely worded provision that may lead to arbitrariness. Already, the government-affiliated media is carrying articles issuing some threats about ‘taking decisive action’ against civil society organisations that engage in electoral work, ostensibly using the anticipated law. These actions are aimed at effectively silencing the voices of those who seek accountability and free and fair elections.
Under Mnangagwa, Zimbabwe ratified African Charter on Democracy, Elections and Governance last year (Charter). One of the objectives of the Charter is to ensure the holding of free and fair elections and institutionalising legitimate authority of representative government and democratic change of government. Mnangagwa’s conduct is however, antithetical to the letter and spirit of the Charter. The ratification of the Charter, so soon after unconstitutionally changing a government may have been a ruse to pretend to atone for the clumsy way the army was used to overthrow his predecessor. But what is the use of all these laws and standards when they are ignored on a whim? And in all this, where is the Zimbabwe Electoral Commission (ZEC) the independent electoral management body which is a critical institution in the country’s democracy?
ZEC’s refusal to avail the electronic voters roll last year despite a clear constitutional and legal obligation has thrown it into litigation that any self-respecting electoral management body would have avoided. ZEC’s reliance on privacy concerns in opposing litigation is indicative of an entity that is oblivious to its constitutional role. Yet, the African Commission on Human and Peoples Rights’ Guidelines on Access to Information and Elections in Africa require electoral management bodies to proactively disclose the voters’ roll with details including ‘the full name, identity number, photograph (where it exists), gender and age of each voter, and any subsequent amendments to this information.’ This makes ZEC’s reliance on privacy as an excuse untenable, if not ludicrous.
ZEC’s conducting of the delimitation exercise done without access to the electronic voters’ roll by stakeholders undermines public confidence and has led to gerrymandering allegations, which ZEC cannot even allay. It is essential that the ZEC is transparent and upholds the constitution. Anything less is unacceptable. To aggravate the problems already created by ZEC, President Mnangagwa’s recent blunder in failing to gazette the delimitation report submitted to him by ZEC on 3 February within the stipulated time has raised serious concerns about his intentions to undermine the integrity and transparency of the electoral process. While the delimitation report was eventually gazetted, the act was unnecessarily preceded by a cloud of secrecy, soiling the whole process.
Sadly, it is clear that President Mnangagwa does not respect the constitution. The continued undermining of the Constitution and democratic process could be costly and irreparable in the long run, with dire consequences for the future of Zimbabwe.
About the Author:
Nqobani Nyathi is a Zimbabwean lawyer, and a Doctoral Candidate and Researcher at the Centre for Human Rights, University of Pretoria.
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