By Senator David Coltart
Bulawayo
26th August 2023
Executive Summary
This paper questions whether the 2023 Zimbabwean elections are “credible” according to both national and international standards, in particular the standards of SADC (Southern African Development Community).
This paper identifies numerous national and international requirements which were breached during the 2023 elections including:
- The failure to provide the main opposition party, the CCC (Citizens Coalition for Change) with a copy of the voters roll in a reasonable time before the election;
- In the voters roll eventually provided to the CCC, discrepancies and anomalies were found such as duplicate IDs and registration of dead people. It also revealed that thousands of people had been moved to new polling stations at great distances from their homes, discouraging voter turnout;
- The final voters roll, used in the general election, which contained additional voters and polling stations, was never provided to the CCC, in breach of electoral law. This means it is impossible to check whether the final roll contained all genuine voters or not;
- The banning and disruption of CCC rallies and arrests and detention of CCC supporters;
- Threats of violence made by ZANU PF supporters against CCC supporters without any police action taken;
- The murder of Tinashe Chitsunga, a CCC supporter, who was stoned to death by ZANU PF supporters in Harare on 3rd August 2023. The police and prosecution authorities have only charged those arrested with a minor crime of “public violence” rather than murder;
- The conduct of the Zimbabwe Electoral Commission (ZEC) in failing to remove unauthorised and duplicate candidates purporting to represent the CCC;
- The ZEC’s increase in nomination fees for MP candidates from $50 to $1000;
- The complicity of the Judiciary by failing to uphold the Electoral law and Constitution in several cases brought before the Courts which sought to protect the integrity of the election;
- Undisputed reports that the Judiciary were offered $400,000 loans in the run up to the election, compromising the independence of the judiciary;
- Last minute and unlawful amendments to the Constitution and electoral legislation changing the rules on the eligibility of candidates and postal votes;
- Inappropriate diversion of government funds to an alternative opposition party to the CCC;
- Questionable funding sources for the ZANU PF election campaign;
- Lack of independent and balanced reporting by state controlled media;
- Substantial increase in fees charged to election observers (between 100-600%);
- Deportation or refusal to authorise some election observers including some journalists and academics with detailed knowledge of the country or who had previously criticised the ZANU PF government;
- Illegal electoral “desks” set up by ZANU PF in the proximity of polling stations, at which people were asked to provide their details before and after voting. This had the effect of pressurising voters;
- Widespread distribution of false leaflets purporting to be from the CCC discouraging people from voting;
- Substantial delays at polling stations in urban areas and CCC strongholds, again discouraging voter turnout;
- Unlawful arrests of civic activists who were monitoring the election.
The paper concludes that the above breaches show that the 2023 elections were not free, fair, lawful or credible.
It is of note that the SADC Electoral Observation Mission’s preliminary statement dated 25th August 2023 concludes by stating that “some aspects of the Harmonised Elections, fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.
Introduction
In the run up to the 2023 Zimbabwean general elections a variety of international observers and diplomats have stressed that the elections would have to be “non violent and credible” for the international community, including the Commonwealth, to restore full relations with Zimbabwe. Previously expressions such as the need for elections to be “free and fair” were employed but that appears to have been replaced by this new benchmark.
Whilst the expression “non violent” is reasonably easy to gauge, it is harder to understand what is meant by “credible” elections. Whilst it clearly is a lower bar than “free and fair”, by what standard is the election going to be viewed as credible? If judged against the worst “elections” of recent times then a low bar will be established. If judged against the SADC principles and guidelines on elections, and elections which have been held recently in Southern Africa, then the bar will be considerably higher.
The recent historical backdrop to the elections
Before the bar is discussed it is necessary to consider objectively the electoral environment. The starting point for the purposes of this report must be the last elections held in 2018. In that election ZANU PF Presidential candidate Emmerson Mnangagwa narrowly defeated then MDC Alliance candidate Nelson Chamisa. The Zimbabwe Electoral Commission (ZEC) announced Mnangagwa as the winner with 50.8% of the vote and gave Chamisa 44.3%, giving Mnangagwa a razor thin majority needed to avoid a runoff. The announced results were disputed by MDC Alliance and critiqued internationally. It is pertinent to note that even based on ZEC results (which were and remain disputed) Chamisa received 2,1 million votes in that election, up from the 1,4 million votes his predecessor in the MDC the late Morgan Tsvangirai received in 2013 election.
Starting in March 2020, the MDC Alliance led by Chamisa has been subjected to an unprecedented assault by ZANU PF and an opposition party, the MDC T, which has acted in concert with ZANU PF since 2020. Following a highly contentious Supreme Court judgment handed down in February 2020, the MDC Alliance saw its MPs illegally recalled from Parliament, its headquarter building taken over by the military and handed to the MDC T and its State funding, due to it under the terms of the Political Parties Funding Act (calculated as a percentage of the votes won by the MDC Alliance in the 2018 elections), cut off and transferred to the MDC T party. From 2020 numerous leaders of the MDC Alliance, including its Vice President Tendai Biti, Spokesperson Fadzayi Mahere and its Vice Chair Job Sikhala, have been subjected to spurious arrests, detentions and prosecutions. (Sikhala remains in unjust solitary confinement in one of Zimbabwe’s maximum security prisons since June 2022, having been charged with a variety of baseless allegations)
Finally in January 2022 the MDC T party announced that it would contest the March 2022 by- elections (ironically called as a result of the illegal recalls of MDC Alliance MPs by the MDC T acting in concert with ZANU PF) using the name MDC Alliance – truth stranger than fiction. That final action meant that an entirely new party needed to be established under the leadership of Chamisa called the Citizens Coalition for Change (CCC) in February 2022. Despite having only just been launched, the CCC won 19 of the 28 Parliamentary seats involved in the by-elections held on the 26th March 2022.
The run up to the elections – delimitation and registration of voters
Delimitation
In 2022 a delimitation exercise was conducted by ZEC and its report handed to Mnangagwa by the ZEC Chairperson in December 2022. Suffice it to say that the report is highly contentious and unconstitutional. Space does not allow a detailed analysis here why this is the case. Suffice it to say that the delimitation did not result in new constituencies which reflect the massive urban drift which Zimbabwe has experienced, like many African countries, in the last 10 years. For example Harare, which has seen significant population growth in the last 10 years, only had one extra constituency added to it. In addition the boundaries of Constituencies have been drawn in a seemingly random and confusing fashion, particularly in urban areas.
Access to the Voters roll
Tied to the delimitation exercise have been serious problems associated with the registration of new voters and the production of the voters roll. Despite political statements to the contrary, and the clear requirements of section 1 of the Fourth Schedule of the Constitution that all citizens over the age of 18 are entitled as of right to be registered as voters, no effort was made to register Zimbabwean citizens living abroad, resulting in the disenfranchisement of hundreds of thousands of Zimbabweans. In addition the registration of young urban citizens was made exceptionally difficult by ZEC.
Compounding the problem, ZEC refused to allow the CCC access to the voters roll after the announcement of the election in clear breach of section 21(4) of the Electoral Act, which compels ZEC to provide “within a reasonable period of time … every political party” with a copy of the roll. The elections were called by Mnangagwa on the 31st May and yet the roll was only provided to the CCC in July. In addition despite the provisions of section 21(7) of the Electoral Act (which compels ZEC to provide a copy of the voters roll to every candidate within a reasonable time after nomination day” – the 21st June – in a format “which allows its contents to be searched and analyzed”), rolls were only provided some 4 weeks after nomination day and in PDF format which was not searchable and analyzable.
Just ten days prior to the election, the CCC was forced to institute further legal proceedings against ZEC as it had not yet received the final copy of the voters roll to be used in the general election (something required by section 21 (4) and (5) of the Electoral Act). The case was brought before the Electoral Court (case number EC21/23) seeking a mandatory order compelling ZEC to provide the CCC with an up to date copy of the voters roll and the final list of polling stations to be used.
It may be confusing to observers why this case was necessary if, as stated above, the CCC received a copy of the voters roll in July. Zimbabwe’s voters rolls are polling station based. In other words the national roll is made up of all the individual polling station rolls, which are all separate and unique. On the 8th August ZEC announced that there were 869 additional (new) polling stations created since the national voters roll was provided to the CCC. On the 8th July ZEC announced that it had established 11501 polling stations. The list of polling stations announced by ZEC on the 8th August stated there were as of that date 12370 stations.
It follows that 869 new polling station voters rolls must have been created which were not part of the national roll that was provided to the CCC in July. The CCC accordingly had no idea which voters are recorded on those new 869 rolls. They amount to a significant number of voters (over 800,000) given that the average number of voters at each polling station is about 1000 voters. The fact that final voters roll has not been provided means that the CCC has not been able to check whether these are genuine voters or not.
The numbers of polling stations recorded on the voters roll provided to the CCC in July do not tally with the final number of polling stations announced by the ZEC and, as stated above, the number of polling stations has changed since the voters roll was provided to the CCC.
Remarkably when the matter first came before High Court Judge Katiyo he stated that the matter “was not urgent” (meaning in effect that it would be heard after the election). After persistent efforts by the CCC lawyers he eventually conceded it was urgent and the matter was argued on the 17th August but judgment reserved to the 18th. ZEC raised spurious arguments in court – including one that the CCC had the final voters roll, which clearly was not the case, and another that the CCC had gone to the wrong court, even though the case had been brought in the Electoral Court. This case is yet another illustration of how ZEC brazenly breached the Electoral Act and was then aided and abetted by the Courts. Despite giving an undertaking to the lawyers that he would hand down his judgment by 5pm on Friday 18th August 2023 Judge Katiyo did not do so until late on Monday afternoon the 21st August when it was in any event too late for the CCC to do anything about the matter. Unsurprisingly the Judge simply dismissed the application out of hand without giving reasons despite having had all weekend to write a judgment on an urgent matter of national significance.
The persistent refusal or delay of ZEC to provide the CCC with copies of the voters roll stands in marked contrast with what appears to be ZANU PF’s access to the voters roll at the beginning of the year, even before the election day was announced. The evidence of this is in the fact that ZANU PF conducted a cell phone messaging exercise to all voters prior to the calling of the election, an exercise which could only have been done with access to the voters roll. The suspicion remains that ZEC has closely collaborated with ZANU PF in the preparation of the voters roll, then and now.
Voters roll discrepancies
There were major anomalies in the voters roll. The civic organisation Pachedu analysed the roll and exposed numerous discrepancies including unreasonable numbers of people registered at certain houses, duplicate IDs used and dead people still on the roll. But perhaps the most disturbing aspect of the voters roll is that thousands of people were moved to new and different polling stations, often great distances from their homes and not where they have voted in some cases for decades, despite residing in the same address and same constituency after the delimitation exercise. This appears to be most pronounced in urban areas with the intention being to cause massive confusion amongst urban voters in particular a substantial majority of whom have voted against ZANU PF since 2000.
In addition in the case (Electoral Court case 21/23) brought before Judge Katiyo, mentioned above, the CCC identified at least 2150 polling stations on the voters roll it had whose names did not match the names of the polling stations published on the 8th August, which affects approximately 1,8 million voters. These are highly significant numbers which will undoubtedly have a significant bearing on the outcome of the election.
The conduct of the election since its calling on 31st May
The electoral process has not been free, fair, lawful or credible for the following reasons:
- Biased behaviour by the Police in its application of MOPA and generally
Zimbabwe’s quaintly, but misleadingly, named Maintenance of Peace Act (MOPA) has provisions which compel political parties to notify the Police of political rallies and which give the Police the power to ban rallies. This law has been used prejudicially against the CCC to effectively ban numerous rallies including the major launch rally of its campaign which was scheduled to be held in Bindura on Sunday the 9th July. Although this was the most high profile banning, the CCC has had over 92 rallies banned by the police in the run up to the election. In stark contrast although ZANU PF has claimed some of its rallies have also been banned it has never provided proof of such banning and certainly no planned rally of Mnangagwa has been banned.
In addition, the Police have sought to disrupt CCC rallies on several occasions using tear gas to either stop meetings or to bring them to a premature conclusion. The most recent was on Sunday 13th August when Police in Masvingo gratuitously used tear gas to end a mass rally being addressed by Chamisa.
The police and prosecutors have been brazenly biased in their treatment of crimes and attitude towards bail. All the ZANU PF members arrested following the brutal murder of Tinashe Chitsunga (referred to below) were only charged with the crime of Public Violence, rather than Murder, and released quickly on bail. In contrast scores of CCC supporters arrested for relatively trivial offences, such as holding unauthorised rallies, have been denied bail. For example in Glenview, Harare 42 CCC supporters, including a candidate, were denied bail, and remained in custody through election day itself. In Gokwe, a CCC supporter Kabuyuni Isheunesu Mabhandi had bail denied. As stated above CCC Vice Chairperson Job Sikhala has been detained since June 2022, with bail persistently denied him, despite the fact that he faces far less serious charges than those involved in the murder of Tinashe Chitsunga.
2. Growing threats of violence and actual violence
From the beginning of the campaign there were numerous threats issued by ZANU PF supporters, and even some of their leaders. Some have called for Chamisa to be killed, others have called for violence against CCC supporters. Although these threats have been recorded in videos and widely distributed on social media, no action has been taken by the Police to arrest and prosecute the culprits. As a result there has been a marked rise in reports of electoral violence with one credible human rights organisation reporting that numerous people were seriously assaulted across a wide area of the country including Chitungwiza, Epworth, Goromonzi, Harare, Kadoma, Makoni, Mazoe, Mutasa and Zvimba. This culminated in the shocking stoning to death of CCC supporter Tinashe Chitsunge by ZANU PF thugs in Harare on the 3rd August 2023.
What compounded the growing violence in the run up to the election was the inaction by the Police. As indicated above no action has been taken to arrest ZANU PF supporters who have threatened violence or assaulted opposition supporters in the last few weeks running up to the election. Chillingly even in the case of the murder of Tinashe Chitsunga those arrested have only been charged with the relatively minor crime of public violence rather than murder with actual intent. The fact that they were readily granted bail signalled to others that they can act violently with virtual impunity.
3. Biased, illegal and discriminatory behaviour of ZEC
In addition to the concerns about ZEC’s conduct surrounding the voters roll and delimitation their conduct generally has been patently biased and illegal.
Double candidates
In terms of section 38 A of the Electoral Act parties are given the right prior to nomination day to submit to ZEC the names of those who are duly authorised to sign nomination papers on behalf of a party and to submit details of nomination papers, including such details as party logos, to ZEC. The CCC did this and submitted details of those authorised to sign on behalf of the party and a specialised embossed logo. Despite this ZEC in several locations, including numerous constituencies and wards in Harare and Bulawayo, disregarded the notice given by the CCC and allowed candidates to be nominated on behalf of the CCC despite their nomination papers having been signed by unauthorised people or forged and having non embossed logos. This has resulted in double CCC candidates in over 20 constituencies and wards countrywide. No other party has been subjected to this illegal behaviour by ZEC.
The CCC did challenge ZEC through the Electoral Court but consistent with the biased behaviour of the Electoral Court the cases were dismissed on spurious grounds. (See below).
Nomination fees
In addition in the run up to the election ZEC directed that nomination fees for MP candidates and Presidential candidates be dramatically increased. For example in the case of MP candidates this was increased from US $ 50 to US$ 1000. This was clearly designed to prejudice those parties, including the CCC, which do not have the same access to State resources as ZANU PF. The increase was unjustifiable and in the case of the CCC meant that it had to raise in excess of US$238,000 to secure the nomination of all its candidates.
4. Biased behaviour of the Courts
In two significant instances ZANU PF, using surrogate applicants, brought cases to the Courts seeking the nullification of the nomination of 12 CCC MP candidates in Bulawayo and Presidential candidate Saviour Kasukuwere.
Bulawayo MPs
In the first case arbitrary applicants, clearly funded and organised by ZANU PF, brought a case in the High Court in Bulawayo arguing that the 12 CCC MP candidates had submitted their papers after the 4pm deadline and as a result should have their nominations cancelled. Despite clear evidence to the contrary (namely that the papers had been filed on time), and major flaws in the court applications themselves, a High Court judge, with close family links to a senior ZANU PF leader in Matabeleland, ruled that the CCC MPs’ nominations be cancelled. Although the judgment was subsequently overturned on appeal (in essence because the Supreme Court judges would have had to embarrassingly reverse a long line of its own decisions on a technical aspect of the case which rendered the applicants’ case fatally flawed, aside from the factual merits of the matter), a vast amount of CCC financial resources, time and energy were exhausted in fighting this utterly spurious case, which should have been dismissed peremptorily by the High Court. In addition the campaigns of the 12 MP candidates were seriously undermined as they had to focus their attention on the court battle.
Saviour Kasukuwere
The second case concerning Presidential candidate Saviour Kasukuwere was brought in a similar fashion by an arbitrary applicant, clearly funded and organised by ZANU PF. The applicant, who wasn’t even a registered voter in Kasukuwere’s constituency, sought the nullification of Kasukwere’s nomination on the basis that he had not been resident in Zimbabwe for 18 months and should be removed from the voters roll. The case was, and remains, utterly spurious for a variety of reasons, including the fact that the High Court does not have jurisdiction to remove any candidate, and that only applicants registered in the same constituency as the person whose name they wish to have struck off the voters roll have the right to object to a person being registered in terms of section 28 of the Electoral Act. In a truly remarkable judgment the High Court disregarded the clear dictates of the Electoral Act, the Constitution and centuries’ old legal precedent in barring Kasukuwere from contesting. In an equally flawed judgement the Supreme Court dismissed the appeal brought by Kasukuwere. His attempt to raise the issue in the Constitutional Court met a similar fate.
Judiciary working hand in glove with ZEC
Space does not permit precise details of further examples of shockingly biased judgments being handed down by the Courts. Mention has already been made of the Court’s dismissal of the CCC’s case seeking the nullification of duplicate candidates whose nominations were accepted by ZEC. The High Court’s handling of the case mentioned above, involving the CCC’s application to receive the final voters roll and list of polling stations to be used in the election, is in one sense the most egregious example of how the Courts have worked hand in glove with ZEC to ensure that clear legal obligations placed on ZEC by the Electoral Act are flouted.
Judges’ loans
Of deep concern are reports in local media outlets and a question raised in Parliament, all of which have never been disputed by government, that all Judges have been offered housing loans of US$400,000 in the run up to the election. In one report, also never disputed, it was alleged that one of the Supreme Court judges presiding over electoral challenges has recently bought a luxury house in Harare. If these reports of Judges having been offered such large loans are correct they will act to seriously undermine the independence of the judiciary at this crucial moment in Zimbabwe’s history. The judgments handed down in the vast majority of electoral cases brought before them in this election betray this already and raise serious questions about the independence of the judiciary in the event of the election results being challenged.
5. Illegal amendments to the Electoral law in breach of section 157(5) of the Constitution
The government has amended two electoral laws since the announcement of the election on the 31st May by Mnangagwa.
Amendment regarding Provincial Councils
The first amendment occurred the day before Nomination day on the 20th June when the Government published Statutory Instrument 114 of 2023 amending section 268 of the Constitution. When the Constitution was amended and the amendments published in 2021 it stated that all ten members of Provincial and Metropolitan Councils would be women. The law was signed by Mnangagwa and has been the law of Zimbabwe for some two years. SI 114/2023 seeks to “correct” what it says is a mistake by changing the composition of these Councils from women to women and men.
It is significant that this amendment was introduced the very day before the nomination courts were meant to sit without prior notice to other political parties. This meant that at the 11th hour to parties other than ZANU PF (who would have known about the changes coming), opposition parties had no notice that they needed to prepare lists for these Councils (voted in by means of proportional representation) of both women AND men.
But aside from the discrimination and prejudice that these last minute changes to the Constitution produced, the fact remains that they are brazenly illegal and unconstitutional.
Section 328 of the Constitution sets out a detailed procedure which must be followed before the Constitution is amended in any way. Whilst SI 114 purports to be a “correction” the plain facts show it amends a Constitutional provision which had been in force for almost two years. It is illegal to amend the Constitution by a Statutory Instrument which is not provided for in section 328 of the Constitution.
In addition, section 157(5) of the Constitution states that “after an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election”. In other words no changes to any Electoral law can have any effect on this year’s election if promulgated after the date when the election was called, namely the 31st May. Despite these brazen illegalities ZEC went ahead and insisted that the Proportional Representation lists for Provincial Councils be comprised of both women and men.
Finally, section 68(1) of the Constitution states that every person, which incudes Zimbabwean political parties, has a right to “administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”. Introducing a change to the Provincial Council lists less than 24 hours before nomination day, where the “error” has been in place for nearly two years, is not “prompt, efficient, reasonable or proportionate”. Introducing these changes in a manner in which only one party, ZANU PF, has prior knowledge of the changes is not “impartial and both substantively and procedurally fair”.
Amendment regarding receipt of postal ballots
The second amendment to an electoral law was done through Statutory Instrument 140A which purports to change the time, set out in section 75(1)(d) of the Electoral Act, when postal ballots are to be received by Chief Elections Officers in different constituencies from 14 days prior to the poll to 3 days prior to the poll. Ironically this was prompted by the spurious cases brought at the behest of ZANU PF seeking the nullification of CCC MPs’ and Kasukuwere’s nominations, which delayed the printing and distribution of ballot papers. Whilst ZEC purported to amend the Electoral Act in terms of section 192(4) and (5) of the Act (which gives power to ZEC to make regulations) the fact remains that that section is subject to section 157 (5) of the Constitution which prohibits any changes to the Electoral law after the election has been called.
Presidential candidate Kasukuwere challenged ZEC’s action in this regard but in another of a long line of poor decisions by the Courts, the case was dismissed. Although a full judgment in the case has not been issued it is hard to conceive how any High Court Judge could have found a way around the clear dictates of section 157 (5) of the Constitution.
6. Unfair and illegal distribution of State resources and Political Parties Finance Act funding
Illegal disbursements in terms of the Political Parties Finance Act
As mentioned above Zimbabwe’s Political Parties Finance Act allows the State to fund political parties in proportion to the percentage of votes received in the previous election. In 2018 ZANU PF received 70,03 % of the votes cast in the Parliamentary election (which is used to calculate the funding rather than votes cast in the Presidential election) and the MDC Alliance received 29,97 %. The MDC T fell below the threshold contained in the Act (less than 5 % of the vote) and so was not entitled to any funding.
In May 2019 the MDC Alliance held a Congress in Gweru. Chamisa was elected President. Douglas Mwonzora was not elected at that Congress to any substantive position and he subsequently resigned from the MDC Alliance and rejoined the MDC T, becoming its President in December 2020. Although Mwonzora spuriously claimed, with the support of ZANU PF, in early 2022 that he was also the leader of the MDC Alliance, on nomination day, the 21st June 2023, he stood as Presidential candidate for the MDC T party, not the MDC Alliance. Although he subsequently withdrew (at the same time calling for a boycott of the election), his name still appeared on the Presidential ballot under the party name of MDC T. It is also noteworthy that the MDC T it didn’t nominate a single MP candidate.
On Friday 7th July the Minister of Justice issued General Notice 1153 purporting to disburse Z$ 1 billion to ZANU PF and the MDC Alliance parties. ZANU PF was allocated Z$ 700 million and the MDC Alliance Z$ 300 million. However the Z$ 300 million allocated to the MDC Alliance was paid to the MDC T party in flagrant violation of the Political Parties Finance Act. Although the CCC by its own admission is a different party to the MDC Alliance (and therefore doesn’t lay claim to the money notwithstanding the fact that the MDC Alliance was clearly led by Chamisa, something confirmed in the May 2019 Congress) there were no possible legal grounds permitting the payment of any money to the MDC T party. The disbursement of Z$ 300 million to the MDC T is plainly illegal and was calculated by ZANU PF to fund an ostensibly rival opposition party capable of drawing votes away from the CCC.
Questionable sources of election funding by ZANU PF
Whilst it is hard to prove that ZANU PF has relied on illegal sources of funding, given the sheer magnitude of their expenditure in the election questions must arise regarding the legality of its funding sources. In the run up to the election ZANU PF purchased brand new luxury 4 x 4 twin cab vehicles for each of its 210 Parliamentary candidates and scores more for its party structures. These vehicles alone must have cost ZANU PF at least some US$ 18 million. ZANU PF literally has more new vehicles this election to campaign with than the police have to police the election with. To bolster numbers of people attending its rallies it employed a fleet of some 400 buses and 100 trucks to ferry thousands of supporters across Zimbabwe to every rally addressed by Mnangagwa. Those attending these rallies were fed and provided with a vast array of regalia. In other words millions of US dollars were spent at every rally.
Whilst election spending of this magnitude is common throughout the world, and therefore normally something which should not raise eyebrows, in the context of the collapsed Zimbabwean economy and the significant disparity between this spending and the spending of all other political parties, including the CCC, it should be a matter of concern, particularly when viewed in the light of the money laundering scandal exposed by Al Jazeera in its #Goldmafia series which commenced showing on the 23rd March 2023. In the third episode of that series, screened on the 6th April 2023, Mnangagwa’s Ambassador-at-large and Presidential Envoy (appointed by Mnangagwa in March 2021) Prophet Uebert Angel said :
“His (Mnangagwa) election, I think they are spending like US$240 million and that is his money.”
It is noteworthy that in this election most of the ZANU PF branding on its vehicles and election paraphernalia was focused on Mnangagwa rather than the party itself, which itself raises questions about where the source of the funding has come from.
Two legal issues arise from this. Firstly, is the source of funding legal? Given that Mnangagwa’s own Envoy stated publicly that Mnangagwa would be putting some US $240 million of his own money into the election campaign what is the source of that funding, particularly given the fact that Mnangagwa has been a Cabinet Minister since 1980 and his only apparent alternative source of income is from his farming activities? Is it possible that the source of ZANU PF’s election funding comes from international crimes, including money laundering?
Secondly, section 93 of the Electoral Act sets out clearly what election expenses are lawfully permissible. It is a remarkably restrictive law which does not allow or envisage expenses on the scale seen in this election. It does not allow, for example, purchases of hundreds of vehicles to promote one candidate, nor the bussing of thousands of supporters. Furthermore the selective application of the law by ZEC is illustrated again in this section of the Act. Whilst on the one hand ZEC dramatically increased the nomination fees for MPs from US$ 50 to US $1000, with the clear intention of prejudicing lesser funded candidates, it took no steps to prescribe a limitation of campaign expenditure as envisaged by section 93 (h) of the Electoral Act, which is clearly designed to put a cap on electoral expenditure in the interests of fairness. In failing to prescribe a cap, whilst at the same time dramatically increasing nomination fees, ZEC has breached its obligations set out in section 238 (a) of the Constitution to ensure that elections are conducted “freely, fairly and transparently’. ZEC has taken no steps to investigate the source of ZANU PF’s excessive expenditure, particularly in light of the assertions of Prophet Uebert Angel in April, which have now come to pass.
7. Gross breaches of section 61(4) and section 155(2) of the Constitution by State media
Section 61(4) of the Zimbabwean Constitution states that
“All State-owned media of communication must—
(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.”
This is particularly important in a country like Zimbabwe where there is only one TV station, the State controlled ZBC, and no genuinely independent radio stations (all the nominally private radio stations have some connection to ZANU PF) and all the dominant broadsheets, The Herald, The Chronicle, The Sunday Mail and the Sunday News are effectively State owned (whilst there is a trust which owns these papers in reality the trust is controlled by the State). Although social media is widely used by young people in urban areas, most rural people do not have smart phones and have limited access to the internet. Because of this, their primary source of information remains state controlled radio.
Furthermore section 155(2)(d) of the Constitution says that the State must take all appropriate measures to provide contestants in an election with “fair and equal access to electronic and print media, both public and private”.
As the respected legal NGO Veritas states “the Constitution’s provisions are broad and general. Part XXIB of the Electoral Act fills in some of the details. The relevant sections in the Part include:
· Section 160G, which obliges public [i.e. State-controlled] broadcasters to give all political parties and candidates “such free access to their broadcasting services as may be prescribed” – i.e. as may be prescribed in regulations made under the Electoral Act. No regulations have been made under the Act requiring public broadcasters to give free access to parties and candidates, however, and in practice such access is not given.
· Section 160H, which says that although news media are not obliged to publish political advertisements, if they do they must accept advertisements from all political parties on the same terms.
· Section 160J, which lays down rules of conduct for news media, public as well as private, during election periods:
– Their coverage of all political parties and candidates must be equitable
– Their election reporting must be factually accurate, complete and fair
– They must distinguish clearly between factual reporting and editorial comment
– They must correct inaccuracies without delay and must give parties and candidates a reasonable right to reply
– They must not promote parties or candidates that encourage violence or hatred against any Zimbabweans, and
- They must avoid language that encourages prejudice, hatred or violence or is likely to lead to “undue” public contempt towards a party or candidate.”
It is obvious to any objective person watching the ZBC or reading, for example, the Herald that there have been flagrant and consistent breaches of the Constitution and the Electoral Act which the ZEC did nothing to stop despite its obligations to do so. The ZBC, the Herald , the Sunday Mail and the Chronicle consistently vilified Chamisa and the CCC; they downplayed and distorted reporting on the numbers of people attending CCC rallies. Despite the fact that CCC and ZAPU were the only parties to produce a manifesto, there was no attempt to give any opportunity to the CCC or ZAPU to explain its manifestos. This is all the more remarkable given that ZANU PF didn’t even produce a manifesto. In short the ZBC and main broadsheets mentioned were brazenly been used as propaganda vehicles for ZANU PF, in breach of the Electoral Act.
In this regard Veritas’ comment published on the 17th August is apposite:
“The Zimbabwean news media, both public and private, have been persistently and at times outrageously partisan in their coverage of this year’s election. For the public news media this partisanship is an obvious violation of the law, in particular section 61(4) of the Constitution and section 160J of the Electoral Act, but the private media are also required to be fair and accurate. They too have violated the law.
There are other violations as well:
· Parties and candidates have not been provided with equal access to the media, both public and private, as required by the Constitution and the Electoral Act. Although the Electoral regulations which we mentioned above say that access need only be equitable, i.e. fair, rather than equal, section 155 of the Constitution and para 2(1)(f) of the Fourth Schedule to the Electoral Act say that access must be both fair and equal.
· Parties and candidates have not been allowed free air time by public broadcasters to give political party broadcasts. Although section 160G of the Electoral Act does not say so expressly, it implies that all parties and candidates contesting an election must be given some free air time, the amount to be prescribed in regulations – which means that even though no regulations have been made, the public broadcasters should have given parties at least some free air time to address the electorate.
· ZEC has not set up a committee to monitor media coverage of the election, as it is obliged to do by section 160K of the Electoral Act. If the committee had been set up and its findings published on a weekly basis, media partisanship might have been more restrained and some of the worst excesses avoided.”
It goes without saying that a fundamental element of any free, fair and credible election must be the ability of the electorate to understand what the various parties and candidates stand for. They also need truthful and accurate reports about the electoral process. This election has not come any where close to meeting Zimbabwe’s own Constitutional and Electoral Act requirements, never mind international standards.
8. Obstacles placed in the way of Election Observers and Journalists
At the same time ZEC legislated a dramatic increase in nomination fees, on the 19th August 2022, it also increased fees payable by foreign observers through SI 143/22. The fees (which have always been in US currency and therefore not susceptible to inflation to the same extent as fees chargeable in Zimbabwe dollars) increased by between 100% and 600%. For example fees for observers “invited from Africa” increased from US$ 20 to US$100, observers from “non-African Embassies” from US$ 50 to US $300 and general observers from “non-African countries” from US $ 100 to US $ 400. Soon after these fees were introduced the legal think tank Veritas opined that the fees were illegal because they were for an “improper purpose” (in that they were intended to prevent people from doing what the law allows them to do), “ so high to be grossly unreasonable”, “discriminatory” and in breach of both section 67 of the Constitution and the preamble to the African Charter on Democracy, Elections and Governance and the SADC Principles and Guidelines on Elections, both of which “emphasise the importance of independent observers in ensuring that elections are transparent, credible and democratic”.
Veritas’ warning that the fees were intended to discourage foreign observers from attending the elections, and that they would in fact discourage foreign observers from attending, did in fact happen, with relatively small delegations coming to observe the elections.
But that situation has been further compounded by the fact that ZEC cherry picked observer missions and the government sought to cherry pick which journalists were accredited. An example of government interference regarding the composition of observer mission teams was its action in declining to approve people like Larry Garber of the Carter Center, apparently because he made negative comments regarding Zimbabwe 2018 elections.
In addition numerous journalists have either had their accreditation applications refused or delayed. Journalists from the South African paper Daily Maverick were refused as were journalists from the London Sunday Times, New York Times and CNN. In July Nigerian journalist David Hundeyin was deported from Zimbabwe after immigration authorities queried his arrival without a visa. Other journalists, for example, some from CNN, were accredited but several journalists for these same international media organisations, who have been covering Zimbabwean elections for years, and who have a detailed knowledge of the country, were denied accreditation, or their applications were not responded to in time to travel to Zimbabwe. This appeared to be a deliberate policy designed to stem the flow of negative stories which would expose the real nature of the elections.
In a similar manner in the last few days leading up to the election several professional people were summarily deported from Zimbabwe. The most high profile example of this was the deportation of former Chief Operations Officer of the South African Broadcasting Corporation and SADC Executive Director of Good Governance Africa, Chris Maroleng, of Thursday the 17th August. Finally on Sunday 20th August Professor Stephen Chan (aged 73) was arrested on arrival at Harare airport and deported. Chan, who is Professor of World Politics at SOAS, University of London, was bizarrely alleged by the state controlled Herald newspaper to have been deported because he “planned to train opposition insurgents”. His real crime is that he has commented negatively for several years regarding the ZANU PF’s government’s performance since 2018. The fear appears to be that because of his detailed knowledge of Zimbabwe he might report accurately on what he observed.
Election day breaches
1. Sections 134(3) and 147(1) of the Electoral Act – setting up of “Exit poll surveys” by ZANU PF
Soon after polling started on the 23rd August 2023 it emerged that ZANU PF had set up so called “Exit poll survey” desks manned by at least two people and branded “ZANU PF” within the proximity of most polling stations countrywide. Many, if not most, were located within 300 meters of polling stations. Credible reports were received countrywide of people, particularly in rural areas being asked to provide their names and ID numbers to these stations before and after they voted. In many polling stations reports were made to police that they be removed and at the very least moved beyond the 300 meter radius of polling stations as prescribed by section 147(1) of the Electoral Act. In urban areas many of these desks were moved beyond the 300 meter radius, or shut down completely. In most rural areas the tables continued functioning all day.
These desks, whether inside the 300 meter radius or outside of it, are illegal. Section 134(3) of the Electoral Act states:
“Any person who by abduction, duress or threats or by fraudulent device or contrivance—
(a) impedes or prevents the exercise of his or her vote by a voter; or
(b) compels, induces or prevails upon a voter either to vote or to refrain from voting at an election;
shall be guilty of the offence of undue influence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.”
Section 147(1) of the Electoral Act states
“(1) Without derogation from any other provision of this Act or any other enactment, no person shall, within three hundred metres of any polling station on any polling day—
(a) convoke or take part in any gathering of more than twelve persons; or
(b) canvass for votes; or
(c) utter slogans; or
(d) distribute leaflets or pamphlets for or on behalf of any candidate or political party; “
ZANU PF flagrantly violated both of these laws on election day. The setting up of these tables was clearly a “contrivance” which were designed to “impede” the free “exercise of (a) vote” or which “compels, induces or prevails on voters to vote”. The suggestion that they were “exit polls” is simply a cover, a contrivance, designed to induce voters to register their names at a desk, with, in turn, the intention of compelling voters to vote for ZANU PF, and not to vote for any other party. Any suggestion that this was an “exit poll survey” is dismissed simply by the fact that at many of these desks voters were asked to give their names prior to voting. Despite reports made to ZEC no action by ZEC was taken nationally to shut the desks down.
Furthermore the desks were all covered with highly visible, pre printed and organised tablecloths (in other words manufactured centrally and uniformly printed) which clearly bore ZANU PF’s logo and name. There are widespread reports and videos of long lines of people (well in excess of 12 people at any one time) gathered to register their names at these desks. As stated above many, if not all, of these desks were situated within 300 meters of polling stations when polling started. The purpose of the desks were clearly to canvas for votes and in many instances routinely resulted in gatherings of more than 12 people at a time. The use of the words “exit poll survey” was just a thinly disguised phrase used to cover an operation designed to canvas for votes within close proximity to polling stations right across the country. As stated above despite formal complaints (and in at least one instance a lawyer’s letter demanding enforcement of the law) ZEC did nothing to enforce the law.
2. Section 148 – publication, printing and distribution of illegal and fraudulent flyers
Overnight, prior to the opening of polls, in several cities throughout Zimbabwe tens of thousands of flyers were distributed which bore the CCC yellow colour, CCC logo and Chamisa’s face with the words “DO NOT VOTE – ELECTION IS RIGGED – ELECTION IS STOLEN”. They were deliberately scattered around numerous polling stations in all major cities. The cost of printing these must have run into thousands of US dollars. The cost and quality of the flyers and their coordinated widespread distribution overnight point to this being organised by an institution with access to considerable money and resources. The clear intention of the flyers was to induce in the minds of urban voters that Chamisa had withdrawn from the election and that there was consequently no need to vote. The main institution which could have benefitted the most from this was ZANU PF and its Presidential candidate. The flyers had the effect of confusing thousands of urban voters on the morning of the poll. Numerous reports have been received of that confusion including some in which voters no longer voted. For the avoidance of doubt Chamisa did not call for a boycott of the election. Although the CCC and Chamisa himself have criticised the illegalities which have plagued this election no boycott was ever contemplated or called.
Section 148 (2) of the Electoral Act states:
“Any person who, before or during an election, publishes a false statement of the illness, death or withdrawal of a candidate at that election for the purpose of promoting or procuring the election of another candidate, knowing that statement to be false or not knowing or believing it to be true, shall be guilty of an illegal practice and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.”
These flyers were clearly false published statements which were intended to suggest that Chamisa had withdrawn as a candidate in the hope that urban people (who overwhelmingly support Chamisa as demonstrated in the results announced thus far) would not vote. The intent was clearly to “promote the election of another candidate”, namely Mnangagwa, by sowing confusion in the urban electorate and deterring CCC and Chamisa supporters from voting.
Both ZEC and the Police throughout the country were made aware of these fliers. No attempt was made, or has been made, to investigate and prosecute those who had these flyers printed and distributed.
3. Delays in starting the election. Breaches of sections 155(1)(a) and (2) (c) as read with sections 236 (1) (a), (b) and (c) section 68 of the Constitution – Orchestrated chaos
It is now common cause that ZEC failed to distribute ballot papers to numerous constituencies in Harare, Bulawayo and Manicaland, all areas where CCC has significant support in time for voting to commence at 7 am on the 23rd August. In numerous constituencies in these three provinces voting only began late in the day, in some cases as late as 8pm that evening. In some cases polling stations remained open until the early hours of the 24th August. Arguably thousands of people were deterred from voting in these Constituencies. Whilst at the time of writing this report no detailed analysis has been possible of voter turnout it is possible, indeed likely, that voter turn out was reduced in these areas.
ZEC gave the excuse that this was because there had been delays in the production of ballots, and sought to blame the numerous court applications regarding the nomination of candidates which delayed the printing of the ballots. Aside from the fact that ZANU PF itself initiated both the case against the Bulawayo 12 MPs and the case against Saviour Kasukuwere, the excuse given by ZEC makes no logical sense. The main ballot which was delayed was the Presidential ballot which was held up by the Kasukuwere case and yet that ballot was delivered countrywide on time, including the most remote polling stations which all opened on time. The Bulawayo 12 MP case only affected Bulawayo MPs and those ballots were all delivered on time. It appears the main, if not only, ballots which were not delivered on time were the local council ballots. Intriguingly once again there was no delay in the delivery of local council ballots to the most remote polling stations. In contrast local council ballots were not delivered in Harare on time and in some cases over 12 hours late, and yet presumably these ballots were printed in Harare. The excuse given by ZEC simply does not stand up to close scrutiny.
On 16th August 2023, the Chairperson of ZEC, Judge Chigumba, told election observers at a briefing that ZEC was ready to deliver “free and credible elections with most of the logistical arrangements now in place”, which was reported in the Herald newspaper on 17th August. As mentioned in the SADC Electoral Observation Mission preliminary statement, ZEC had assured the SADC observer mission and other missions that all necessary voting papers including ballot papers were ready for use. As mentioned in the African Union and COMESA election observation preliminary statement on 21st August 2023, ZEC reported that “98% of all preparations were done and election materials had already been delivered to the polling areas”. In view of these assurances, it is inexplicable that suddenly the ballot papers were not available.
The fact of the matter is that these significant delays in getting voting underway mainly, if not exclusively, occurred in constituencies which have traditionally voted heavily for the opposition. The obvious conclusion is that this was orchestrated chaos devised by ZEC with the clear intention of reducing the number of people who would vote for the CCC and Chamisa in their strongholds.
Section 155 (1) (a) states:
“Elections, which must be held regularly, and referendums, to which this Constitution applies must be—
- peaceful, free and fair”
Sections 155 (2) (b) and (c) state:
“The State must take all appropriate measures, including legislative measures, to ensure that effect is given to the principles set out in subsection (1) and, in particular, must—
(b) ensure that every citizen who is eligible to vote in an election or referendum has an opportunity to cast a vote,
(c) ensure that all political parties and candidates contesting an election or participating in a referendum have reasonable access to all material necessary for them to participate effectively;”
Sections 236 (1) (a), (b) and (c) state:
“Members of the independent Commissions (including ZEC) must not, in the exercise of their functions—
(a) act in a partisan manner;
(b) further the interests of any political party or cause;
(c) prejudice the lawful interests of any political party or cause;”
Section 68 of the Constitution states:
“Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”
All of these fundamental Constitutional provisions were deliberately flouted by ZEC to favour ZANU PF over CCC. ZEC had an obligation to deliver all voting materials to all polling stations at the same time in a manner which did not prejudice or favour one political party over another. Bearing in mind that in 2018 Mnangagwa, according to ZEC’s own figures, only overcame the burden of securing a 50% plus one majority by some 28,000 votes (in an election in which almost 5 million votes were cast), it can be seen that the failure by ZEC to deliver ballots on time to these CCC strongholds has the ability to have a material effect on the outcome of the election, aside from the fact that it violated rights which are sacrosanct in any democracy.
It obviously cannot be proved that ZEC did this deliberately but the only reasonable inference is that it did so. Whether or not it was deliberate only aggravates the conduct but does not eliminate the breach which in itself would be sufficient to invalidate the entire election before any professional, independent and competent court.
Events post the election
Detention of ZESN staff alleged breach of section 66 A
On the night of Wednesday 23rd/Thursday 24th August some 43 civic society workers, most working for or with the Zimbabwe Electoral Supervisory Network and the Election Resource Center were arrested by Police at the Holiday Inn in Harare on allegations that they had breached section 66 A of the Electoral Act. At the same time they were arrested some 93 smartphones, 38 laptops and a variety of other equipment were seized by the Police.
On the afternoon of the 25th August those arrested were arraigned before the Magistrates Court having spent a night in detention.
Section 66 A of the Electoral Act states:
“(1) Subject to subsection (3), any person who—
- purports to announce the result of an election as the true or official results; or (b) purports to declare any candidate to have been duly elected;
before an electoral officer, acting in accordance with this Act, has announced the result of that election or declared a candidate to have been duly elected in that election, as the case may be, shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
(2) Subject to subsection (4), any person who, with intent to deceive or to discredit the electoral processes in an election, falsely—
(a) reports or announces the number of votes received by a candidate or political party in an election; or
(b) declares any candidate to have been elected in an election;
shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
(3) Subsection (1) shall not be construed as preventing any person from reporting the number of votes received by a candidate or political party in an election, where the report is based on polling-station returns and constituency returns from the election concerned.”
It is clear that these civic leaders were working openly from a public place, a hotel, and acting completely within their rights to gather and collate information and to report on the same (as they are entitled to do in terms of the Constitution and in terms of section 66 A (3) ). There is nothing unlawful about anyone who wishes to gather information released by ZEC itself (namely V11 and V 23 forms), to analyse the same and then to report on it. There is no evidence that they had any intention to make an announcement of the results.
If anything this points to the government seeking to prevent objective analysis and reporting of the results. The seizing of all the equipment used in this exercise appears to be designed to ensure that whatever information has been obtained cannot be used to question any results announced by ZEC. If the whole electoral process is lawful and transparent one wonders why there should be such a heavy handed and unlawful action taken to detain people.
This is also another example of the law being used by ZEC, acting in concert with the Police, to selectively use clauses of the Electoral Act to clamp down on rights rather than protect them. The heavy-handed action stands in marked contrast to the conduct of both ZEC and the Police in turning a blind eye to brazen breaches of the law by ZANU PF on the election day itself, and after the election when senior members of ZANU PF themselves purported to announce in a press conference the results claiming that ZANU PF had won a two thirds majority in Parliament and that Mnangagwa had won the Presidential election.
What standard should be used to determine “credibility”?
This is, by some considerable margin, the most illegal election Zimbabwe has ever held. Never before have there been so many deliberate breaches of Zimbabwe’s Constitution and Electoral Act by several government institutions. All of the breaches have been done to benefit one party, namely ZANU PF, and one candidate, namely Mnangagwa.
To return to the original question of whether these elections are “credible”, the answer to that question lies in Zimbabwe’s location, namely Southern Africa, and its membership of SADC. As mentioned above, SADC specifically has the SADC Principles and Guidelines on Elections which Zimbabwe is bound to comply with. In addition there are the standards which have been set by all of Zimbabwe’s immediate neighbours and countries in the region which it has long standing historical, economic and cultural ties with, such as Malawi, Lesotho and Nambia. These are the standards which should be used to judge whether or not Zimbabwe’s elections are credible.
There are four areas in which Zimbabwe’s electoral environment is fundamentally different, and substantially worse, than the conditions which prevail in any of its neighbours, and indeed in an overwhelming majority of countries in SADC.
- Judiciary
This paper sets out in detail how the independence of the judiciary has been compromised in the last few years, but particularly in the current election. There is clear evidence of this in the way the Courts have handled the detention of opposition leaders (particularly when compared to the way the Courts have handled members and supporters of ZANU PF) and in the manner that the vast majority of election related cases have been handled.
This stands in marked contrast to the independent courts in South Africa and the conduct of the judiciary in electoral cases throughout the region which have tried to uphold respect for the rule of law. The most significant recent case was the Constitutional Court judgment handed down in Malawi on the 3rd of February 2020 nullifying the election President Peter Mutharika won in May 2019, citing massive irregularities during the process. The verdict resulted from a court challenge filed by Saulos Chilima, leader of the opposition United Transformation Movement Party, and Lazarus Chakwera, leader of the Malawi Congress Party. The court called for fresh elections within 150 days and the judgment was subsequently upheld on appeal to the Malawian Supreme Court. This ultimately resulted in the opposition leader Lazarus Chakwera assuming office. It is hard to imagine something similar happening in Zimbabwe at present, particularly following the reported offer of US $ 400,000 loans being made to Judges.
2. Media
In stark contrast to the regional standard Zimbabwe does not have a single independent TV station, nor does it have any genuinely independent radio stations. As mentioned above the State owned or controlled electronic media organisations have brazenly violated their Constitutional obligations in terms of section 61 (4) of the Constitution.
In all the countries neighbouring Zimbabwe there are a plethora of independent TV and radio stations and rights of freedom of expression are fully respected, particularly during elections.
3. Oppressive legislation
Zimbabwe has two pieces of legislation, namely the Maintenance of Peace Act and the so called Patriot provisions in the Criminal code which are unique to Zimbabwe. As recognized in the SADC Electoral Observation Mission’s preliminary statement, the Patriot Act ‘has resulted in a severe restriction of the freedom of expression which is guaranteed by section 61(1) of the Constitution’. Both pieces of legislation severely undermine fundamental freedoms. No similar legislation exists in any other country in Southern Africa.
4. Diaspora vote
Although the Constitution states that every Zimbabwean citizen over the age of 18 has the right to be registered as a voter and to vote (in section 1 of the Fourth Schedule as read with section 67) this right has not been respected and hundreds of thousands of Zimbabweans in the diaspora have been disenfranchised. In the current election none of these Zimbabweans were able to vote.
The refusal to respect the right of all Zimbabweans to vote also stands in marked contrast to the standard set in all Zimbabwe’s neighbours, where all the citizens of Botswana, Mozambique, Zambia and South Africa are entitled to vote irrespective of their place of residence.
Conclusion
The SADC Electoral Observation Mission’s preliminary statement issued by its Head of Mission His Excellency Dr Nevers Mumba on the 25th August concludes by stating that
“some aspects of the Harmonised Elections, fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.
Accordingly the SADC Observer Mission itself has acknowledged that the 2023 elections breached Zimbabwe’s Constitution, the Electoral Act and SADC election principles. It is gratifying that the statement sets out some of the laws which have been breached and condemns these breaches. This paper touches on those breaches but in addition raises other breaches of law which the Mission statement did not mention.
Those who may wish to judge the 2023 Zimbabwean elections by a lower standard than SADC itself adheres to should consider the ramifications of such a move. Aside from disrespecting what the regional body itself has determined, the message which will be sent is that a lower standard will be acceptable in future. There are green shoots of democracy sprouting throughout Southern Africa which auger well for stability and long term economic growth, development and opportunity. But there are also undemocratic forces in Southern Africa who are keen to either retain power, or acquire it, by undemocratic means. If the high standards espoused by the SADC Mission are not supported by other Nations and Institutions then they will undermine the entire region and play into the hands of undemocratic forces.
It is naive to think that any group of people who acquired power through a violent and illegal coup d’etat in 2017 will now willingly relinquish that power through a lawful election. The danger for the entire region is that if a blind eye is turned by the international community to brazen electoral illegalities committed by the same group of people responsible for the 2017 coup d’etat it will set a new and dangerous precedent for governance in the entire region. Tyrants will view that as licence to disregard their own Constitutions and laws with the sole objective of retaining power. That in turn will destabilise the entire Southern Africa region.
There is one final point which is of continental and global importance. For 23 years Chamisa and the opposition have waged a non violent democratic struggle against a tyrannical regime. In the last few years they have survived an unprecedented assault designed to destroy the main opposition party in Zimbabwe. The reason ZANU PF has had to resort to the illegal measures outlined in this paper is because Chamisa and the CCC, far from being destroyed, have enjoyed growing support and momentum DESPITE all that has been thrown at them and the fundamental breaches of law. That has been achieved using non violent, democratic, means. The democratic world should reward that by joining SADC in its condemnation of the election. Zimbabwe and Africa deserve better irrespective of who is declared the winner of the election.
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