I AM not a lawyer, but this seems quite straightforward to me.
The Electoral Act says that “the authority to govern derives from the will of the people demonstrated through elections that are conducted efficiently, freely, fairly, transparently and properly on the basis of universal and equal suffrage exercised through a secret ballot”.
The Zimbabwe Electoral Commission is appointed in terms of the Zimbabwe Constitution to conduct these elections and to “ensure” that they are conducted efficiently, freely, fairly and transparently.
In the exercise of this function, the Constitution says, the Commission “shall not be subject to the direction or control of any person or authority”.
In addition to conducting the elections, the Commission is also required by the Zimbabwe Electoral Commission Act to monitor the Zimbabwean news media to “ensure” that broadcasters, print publishers and journalists observe the provisions of the Act in that:
*All political parties and candidates are treated equitably in their news media, in regard to the extent, timing and prominence of the coverage accorded to them;
*Reports on the election in their news media are factually accurate, complete and fair;
*Political parties and candidates are afforded a reasonable right of reply to any allegations made in their news media that are claimed by the political parties or candidates concerned to be false;
*News media do not promote political parties or candidates that encourage violence or hatred against any class of persons in Zimbabwe;
*News media avoid language that encourages racial, ethnic or religious prejudice or hatred; or encourages or incites violence, or is likely to lead to undue public contempt towards any political party, candidate or class of person in Zimbabwe.
Finally, the Zimbabwe Electoral Commission Act says that the commissioners are required to exercise their functions in a manner that promotes conditions conducive to free, fair and democratic elections. They are not to do anything that may “give rise to a reasonable apprehension that they are exercising their functions with partiality or bias, or place in jeopardy their independence or the perception of their independence, or compromise the Commission’s credibility, impartiality, independence or integrity”.
The electoral commissioners have arguably the most important job in the country. It is their responsibility to protect the right of Zimbabweans to choose their representatives in a free, fair and transparent election, thereby giving those representatives the authority to govern.
It seems to me that the commissioners have failed in their mandate in several ways.
They have administered an election that has been adjudged either as not free and fair, or as not reflecting the will of the people, by local independent observers as well as those from Sadc, the Pan-African Parliament and the African Union.
They have not stopped the state-controlled media from publishing and broadcasting material that has been patently biased in favour of one candidate without allowing the other any voice or right of reply, and have allowed them to use language that, in my opinion, encouraged racial hatred as well as public contempt towards the MDC and its presidential candidate.
There has been no transparency in the commissioners’ reasons for proceeding with a run-off election in which one candidate had indicated that he did not wish to participate, suggesting that the commission might have used vast public resources unnecessarily.
Nor has there been any transparency in their apparent ability to collate, count and verify the votes in the run-off election in less than 48 hours, whereas the same task apparently took a month after the March 29 election.
These and other actions of the commission have given rise to “a reasonable apprehension” in me that their credibility, impartiality, independence and integrity have been compromised.
It would appear that the commissioners have either voluntarily failed to carry out their constitutional mandate, or have involuntarily been under the direction of some other “person or authority”, in which case they should have made this public and resigned.
At the moment, commissioners George Chiweshe, Joyce Kazembe, Theophilus Gambe, Sarah Kachingwe, George Kahari, Vivian Ncube and Jonathan Siyachitema might be regarded as those initially responsible for failing to protect many of the democratic rights of the Zimbabwean people in this electoral process.
The Act gives them up to six months from the announcement of the results to submit their report on the conduct of the election to parliament and the contesting parties, but I believe that they should take responsibility to explain more immediately their actions (and inactions) to the voting public.