SADC Electoral Observer Mission acted well in line with its mandate, says Constitutional watchdog

The day after polling ended in last week’s general election the head of the Southern African Development Community (SADC) Electoral Observation Mission issued a preliminary statement on behalf of the Mission in which he suggested that aspects of the electoral process fell short of Zimbabwe’s Constitution and Electoral Act as well as the revised SADC Principles and Guidelines Governing Democratic Elections.

However, these criticisms and recommendations aroused a storm of protest from spokespersons of the ruling party and government, who accused the Mission of going beyond its mandate, even suggesting that the head of the Mission was a threat to the territorial integrity of Zimbabwe.

But, According to Constitutional watchdog Veritas Zimbabwe, the Observer Mission did nothing wrong and was well in its lane.

The SADC Electoral Observation Mission was well within its mandate in assessing and criticising Zimbabwe’s electoral laws and in recommending reforms.

Veritas says if government spokespersons do not like those criticisms and recommendations they are entitled to say so and to rebut them if they can; but if they have any knowledge of or respect for our country’s obligations under the SADC Treaty they should not claim that the Mission exceeded its mandate.

The Constitutional maintains that the Observer Mission did nothing wrong, despite criticism from the Zimbabwean Government and ZANU PF leaders.

The President-elect Emmerson Dambudzo Mnangagwa himself is reported as having said:

“I am aware that some observer missions went beyond their call of duty and began interrogating legislation passed by our Parliament … I don’t think it is in the mandate of election observers to interrogate institutions of a sovereign government.”

Veritas Zimbabwe writes:

Did the Mission go beyond its mandate? To answer that, we must examine its mandate contained in the SADC Principles and Guidelines Governing Democratic Elections.

The SADC Principles and Guidelines

The SADC Electoral Observation Mission was constituted in terms of the SADC Principles and Guidelines, which are binding on Zimbabwe as a member State of SADC – article 5.1.1 says that member States must “make every effort to ensure the scrupulous implementation” of the Principles and Guidelines.

The objectives of the Principles and Guidelines are set out in the first three sub-articles of article 2.1. They are to:

“2.1.1. Promote and enhance adherence by each Member State to the SADC Treaty and the Protocol on Politics, Defence and Security Cooperation;

2.1.2. Promote and enhance adherence to the principle of the rule of law premised upon the respect for, and supremacy of, the Constitution and constitutional order in the political arrangements of the respective Member State holding elections;

2.1.3. Promote the holding of regular free and fair, transparent, credible and peaceful democratic elections to institutionalise legitimate authority of representative government;”

So the Principles and Guidelines have two interlinked objectives: to ensure that member States hold free and fair elections and also to encourage member States to respect their own constitutions and constitutional orders.

The mandate of a SADC electoral observer mission [called a SEOM in the Principles and Guidelines] is set out in article 8.3.2:

“8.3.2 The mandate of the SEOM shall be to determine the adherence of the Member State holding elections to the relevant provisions of the SADC Principles and Guidelines Governing Democratic Elections;”

If the mandate of a SEOM is to determine how far a member State adheres to the Principles and Guidelines in an election – and that is its mandate – and if the Principles and Guidelines require States to respect their own constitutions and constitutional order [i.e. its law] – which they do – then it follows that as part of its mandate a SEOM must assess how far a member State holds an election in compliance with its constitution and law.

The extent of the mandate is made even clearer by other articles of the Principles and Guidelines:

· In the pre-election period, a SEOM must observe whether the member State’s legal and constitutional framework guarantees human rights relevant to elections [article 11.3.2]. More specifically, the SEOM should assess “the structure and model of the electoral system, the EMB [i.e. ZEC], the Electoral Act and regulations and the nature of civil and political rights” [article 13.2.3].

· Also in the pre-election period, a SEOM must inquire into the delimitation of electoral boundaries – whether the factors considered were in accordance with the law of the land [article 11.3.6].

· During the electoral period a SEOM must assess the locations of polling stations, the production and distribution of ballot papers, the processes of voting and counting votes and the adequacy of safeguards against inaccuracies [article 13.5].

· In the post-electoral period, a SEOM must observe whether there are effective remedies for violations of electoral-related rights [article 11.7.1.1.].

· Also in the post-electoral period, a SEOM must assess “the development of changes to electoral-related laws, rules, regulations and administrative procedures preceding and following elections” [article 13.6.2.1].

Brief Summary of the Missions main Criticisms and Recommendations

The Mission made the following criticisms of the elections:

· The delimitation of constituencies, the Mission suggested, was flawed in that constituencies varied by more than the 20 per cent permitted by section 161(6) of the Constitution.

· The Zimbabwe Electoral Commission [ZEC] failed to make voters rolls available in good time to contesting parties, violating section 21 of the Electoral Act and the constitutional requirement that elections be transparent and fair.

· There were reports that opposition CCC meetings were unreasonably cancelled by the Police.

· The “Patriotic Act” amendment to the Criminal Law (Codification and Reform) Act was incompatible with section 61(1) of the Constitution and paragraph 4.1.2 of the SADC Principles and Guidelines.

· High nomination fees may have discouraged less well-off people, including women, from standing as candidates, in violation of paragraph 4.1.7 of the SADC Principles and Guidelines.

· State media – press and broadcasting – favoured one political party over the others, contrary to the Constitution, the Electoral Act and the SADC Principles and Guidelines.

The Mission made the following recommendations:

· ZEC was advised to abide strictly by the Constitution on transparency and access to information, and to avail the voters roll in accordance with the Electoral Act.

· Laws requiring State-owned media to be impartial should be implemented.

· ZEC was advised to revise the nomination fees.

· ZEC was urged to strengthen transparency in the procurement and distribution of voting materials.

· Measures to enhance the participation of women as candidates should be put in place quickly by the next Parliament.

All these criticisms and recommendations fall well within the Mission’s mandate which we outlined earlier.

Conclusion

The SADC Electoral Observation Mission was well within its mandate in assessing and criticising Zimbabwe’s electoral laws and in recommending reforms. If government spokespersons do not like those criticisms and recommendations they are entitled to say so and to rebut them if they can; but if they have any knowledge of or respect for our country’s obligations under the SADC Treaty they should not claim that the Mission exceeded its mandate.