PRELIMINARY STATEMENT:
Improved political climate, inclusive participation rights and a peaceful vote, but un-level playing field, intimidation of voters and lack of trust in the process undermined the pre-election environment. We now hope for a transparent and traceable results process.
Harare, 1 August 2018
This preliminary statement of the EU EOM is delivered before the completion of the entire electoral
process. Critical stages remain, including collation of results and adjudication of petitions. The EU EOM is now only in a position to comment on observation undertaken to date, and will later publish a final report, including full analysis and recommendations for electoral reform. The EU EOM may also make additional statements on election-related matters as and when it considers it appropriate.
Summary
The 30 July 2018 Harmonised Elections in Zimbabwe were the first since the stepping down from power of the former president Robert Mugabe after 37 years in office. Many previous elections have been contentious and with reports of abuses, and so while the commitment to hold credible elections by the interim president was welcomed, a legacy of the past was a low level of trust in the democratic process and institutions, which permeated the electoral environment.
The elections were competitive, the campaign was largely peaceful and, overall, political freedoms during the campaign, including freedom of movement, assembly and speech, were respected. However, the misuse of state resources, instances of coercion and intimidation, partisan behaviour by traditional leaders and overt bias in state media, all in favour of the ruling party, meant that a truly level playing field was not achieved, which negatively impacted on the democratic character of the electoral environment.
The Zimbabwe Electoral Commission (ZEC) undertook a biometric registration of voters and put in place administrative arrangements for polling as scheduled. Stakeholder confidence in the institution, however, was lacking, due to a lack of transparency and inclusivity and poor communications. A series of decisions, including on the layout of the presidential ballot, raised concerns about its impartiality. The new voter roll was generally inclusive, though it was not adequately shared with stakeholders and has some errors and changes which need to be clarified. On Election Day, EU observers reported a large turnout and a generally well-managed and peaceful process. However, in some places there were reports of a high number of assisted voters and of voters not found on the voter roll. The count at the polling stations was fairly well organised, though with some inconsistent organisational practices. It was noted that while the result sheet was posted outside the polling stations in a majority of places, this was not the case everywhere.
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| Improved Political Climate, But Un-Level Playing Field and Lack Of Trust In The Process says EU |
- The legal framework provides for key rights and freedoms for the conduct of competitive elections. However, shortcomings in the Electoral Act and the absence of campaign finance regulations limit the integrity, transparency and accountability of the process. Furthermore, delays in adjudication, dismissal of court cases on merely technical grounds and a number of controversial judgments compromised the right to an effective legal remedy.
- The introduction of a number of legal and administrative changes was welcomed, including increasing the number of polling stations, limiting voters to voting only at their registered station, and limiting the number of excess ballots to be printed. ZEC put in place administrative arrangements for the holding of the 30 July polls as scheduled. However, the potentially positive measures were undermined by ZEC’s persistent lack of inclusivity and transparency. Further, the election management body became embroiled in a number of contentious issues, including the layout of the presidential ballot, modalities for printing and distributing ballots, poor procedures for confirming ballot security between printing and election day and the conduct of postal voting. ZEC also failed to make full or proper use of the Multi-Party Liaison Committees (MPLCs). These issues contributed to a deterioration in the relationship between the electoral commission and the opposition in the weeks before the election.
- The switch to biometric voter registration (BVR) so close to the time of the election was a major challenge for ZEC, which assumed responsibility for the roll for the first time. Data indicates a reasonable capture rate for eligible voters, though with lower levels of registration in urban areas in particular and a number of errors which remain to be resolved. The manner of sharing the voter roll with stakeholders proved contentious and, while acknowledging the effort ZEC made in undertaking the BVR, its lack of transparency and failure to provide clear and coherent information about voter registration overall added to a sense of mistrust by stakeholders.
- The campaign was largely peaceful, with freedoms of movement, assembly and expression respected, and both the main presidential candidates held numerous rallies across the country. However, while political rights were largely respected, there were concerns regarding the environment for the polls and the failure to achieve a level playing field. Observers widely reported on efforts to undermine the free expression of the will of electors, through inducements, pressure and coercion against prospective voters to try to ensure a vote in favour of the ruling party. Such practices also included direct threats of violence, pressure on people to attend rallies, partisan actions by traditional leaders, collection of voter registration slips and other measures to undermine confidence in the secrecy of the vote, manipulation of food aid and agricultural programmes and other misuses of state resources.
- Based on EU EOM monitoring, the state broadcaster, the Zimbabwe Broadcasting Corporation (ZBC), failed to abide by its legal obligation to ensure equitable and fair treatment to all political parties and candidates. State-owned TV, radio and newspapers, which dominate the media landscape, were heavily biased in favour of the ruling party and incumbent president in their election-related coverage. Media operated in a generally free environment during the campaign and freedom of expression was respected. The legal framework for media, while providing for fundamental rights, needs further improvement to bring it into line with the Constitution.
- In the direct election for the National Assembly, only 14.75% of candidates were women and women were nominated in just 126 of the 210 seats. But via the additional proportional list system for the Assembly, a large number of women will nevertheless be elected to parliament.
- On the day of the election EU observers reported positively on the conduct of voting. Zimbabwean citizens turned out in large numbers and despite some lengthy queues the voting process was managed well by polling officials who worked hard to process voters. Some problems with the voter roll, or lack of voter awareness of their polling location, were evident. Party agents were present in most places, but polling officials did not always check for indelible ink. Further, there appeared to be a high degree of assisted voting in some places. The vote count in polling stations was reasonably well organised, though procedures were not always followed, inconsistencies were noted and there was inadequate light in some places. The result was posted at the polling station in many instances, but not all. The collation of results is on-going and we continue to observe this. It is important that the final results are shared in a manner which provides for full transparency and accountability, including a breakdown by polling station.
The EU EOM is independent in its findings and conclusions and adheres to the Declaration of Principles for International Election Observation signed at the United Nations in October 2005.
Preliminary Findings
1. Background:
The 30 July 2018 Harmonised Elections in Zimbabwe were the first since the events of November 2017, which resulted in the stepping down from power of the former president after 37 years in office. Zimbabwe has a history of contested elections, including abuse of political and human rights. The 2018 elections offered the country an opportunity to create a new electoral reality for itself. However, while the commitment to credible elections and economic reforms by the interim president was welcomed, the legacy of the past, including the pervasive link of the ruling party to state structures, created low levels of trust in the democratic process and in national institutions.The 30 July polls were for the election of the president, parliament and local councils. Twenty-three candidates registered for the presidential election 1,631 contested for the National Assembly and 6,576 for local councils. These represented 55 political parties or stood as independents. The elections were competitive and largely dominated by the contest between the ruling ZANU-PF and the opposition MDC Alliance (MDC-A), which was formed in August 2017. The electoral system for the National Assembly is a hybrid one, with a proportional allocation of seats to parties based on votes won in the single-member constituencies. Such a system may provide an added advantage to the largest party.
2. Legal Framework (including Election Dispute Resolution)
Legal Framework provides for key rights and freedoms, but further reform of the Electoral Act is required and the right to an effective legal remedy needs to be ensured Zimbabwe is a State Party to key universal and regional human rights instruments relevant to democratic participation and overall the legal framework provides adequate conditions for competitive elections, if implemented in good faith. The adoption of the 2013 Constitution strengthened the role of ZEC, making it solely responsible for the registration of voters. Fundamental freedoms of assembly, association, expression and movement, and equality and non-discrimination are provided for, as well as access to justice and to information. The Electoral Act was last amended in May 2018, which is very close to the time of election and not in accordance with best practice. It contains some advances, mainly related to voter registration, the limitation of excess ballot papers printed for any election, and the set-up of the national MPLC at any time prior to six months before the end of the parliamentary term. Nevertheless, a number of substantive proposals were not adopted, resulting in some provisions of the Act not being fully aligned with the Constitution. These concern mostly the reinforcement of the independence of the ZEC in relation to the executive and the non-expansion of the right to postal voting to people in the diaspora, homebound voters and voters in hospitals and penitential institutions.Other shortcomings in the Electoral Act undermine the effectiveness of the electoral process. These include, the inclusion of restrictive provisions on voter education conducted by persons other than ZEC, the absence of spending limits and of transparency and disclosure requirements on campaign contributions, the lack of provisions on the misuse of state resources, as well as the lack of enforcement mechanisms to sanction campaign and media violations. The Act equally does not include an obligation on ZEC to publish election results to polling station level, nor does it offer defined mechanisms for ZEC to examine and resolve complaints filed by citizens, as provided for by the Constitution.
Election Dispute Resolution
The right to a legal remedy is foreseen for in the Constitution, which also empowers ZEC to receive and resolve complaints filed by citizens and to take appropriate action. However, the Electoral Act does not contain administrative complaint mechanisms, except for those related to voter registration. Hence, election-related disputes are resolved only by the judiciary, resulting in protracted adversarial processes which, considering the absence of time limits for the delivery of judgements in pre-election court challenges, do not always ensure timely and effective legal remedies.Moreover, the limited constitutional independence and transparency in the appointments of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court, and the opaque system ofallocation of election-related matters to judges by the Judge President of the High Court, has led to limited confidence in judicial impartiality on the part of stakeholders. This has been further compounded by a number of controversial judgments related to elections.
Some 50 applications have been filed with the courts, dating back several months before the proclamation of the elections and until two days before the polls. Despite claims that many of these were frivolous and politically-motivated, it is noteworthy that ZEC is vulnerable to legal challenges not only because some provisions of the Electoral Act are not fully in line with the Constitution, but also due to its interpretation and implementation of the law, as well as of its understanding of the rights and obligations bestowed on it by the Constitution.
The only significant court cases to succeed related to the obligation of traditional leaders to be politically neutral, the voting rights of “alien” citizens, the deployment of teachers as polling staff on Election Day, and the provision of the final voter roll to an applicant. Regrettably, important matters, relating to the independence of ZEC, the diaspora vote, release of the provisional voter roll, transparency in electoral operations, the protection of school children from enforced participation in political activities, ZEC’s
There were even some urgent chamber applications filed to compel the High Court to hear applications that were already pending before it. In addition, a recent ruling of the High Court dismissed an application for a declaratory order compelling ZEC to comply with its constitutional obligation of transparency in the exercise of its operations, citing its lack of jurisdiction to intervene in ZEC’s functions in the absence of illegality, which further limited the protection of the electoral rights of citizens.
In one court application requesting ZEC, inter alia, to disclose its operating procedures, ZEC argued that it has the discretion formulate rules and procedures as to how it operates and that the request for transparency would interfere with its functions. In another application, to require ZEC to share a copy of the provisional voter roll, ZEC argued on appeal that the court, by ordering that it provide a copy of the provisional voter roll, sanctioned an undue infringement of its constitutionally guaranteed independence.