BSR: Brace for an early election


Back in the village, political temperatures are already rising. Villagers are whispering about elections. They know the time is near. Previous experiences have taught them to be on guard. They watch strangers and new arrivals very closely. Ndevekwaani? (Which village do they come from?) Mwana waani? (Who is his father?) Vatumwa nani? (Who sent them?) Vanodei? (What do they want?) These are standard questions when villagers encounter a new and unfamiliar face. Everyone knows everyone in the villages and new faces are easily noticeable. And they are suspicious.

They have lived long enough in the area to know which car belongs to whom – the red car belongs to the headmaster at the local school, the blue car is the businessman’s, the black truck is owned by the reverend at the local mission, the yellow one belongs to Chodo’s son who comes home every other weekend, etc. When they see the green truck, they ask questions. When an unfamiliar vehicle arrives, they give it extra scrutiny and watch carefully what they say. For some, memories of the torrid winter of 2008 are still too fresh. One wrong word could get someone into serious trouble. They have seen it happen before. The rain season brings thunder and lightning. Winter brings a cold draft and August comes with heavy winds. Elections tend to bring violence, intimidation and fear. It’s one of the seasons and they have learnt to prepare for it as thy do when the winter comes with low temperatures.

It’s the dry season. They have long finished the harvesting. The maize cobs are stored in the granaries to dry. Later, they will shell them and send some to the Grain Marketing Board, although rent-seekers have stepped in to collect massive rents. The middlemen offer cash to the peasants for their grain and although the prices are low, the peasants are saved the pain of waiting for their money in never-ending bank queues. The middlemen collect the grain and sell it on to the GMB or other clients. It is the middleman who has the broadest smile: he makes a huge profit from the transaction. The peasant toils all year, working the land. The middleman comes at the tail-end of the process and collects the rents.

In Harare, the streets are a hive of activity. They sell everything, from air-time to underwear in the open streets. Vendors’ hand-drawn carts compete for space on the roads with vehicles. The police are everywhere, but with the singular mission of collecting rents from motorists. The police roadblocks are ubiquitous. At every spot, one or two police details will be in possession of spikes, which they use to deflate vehicles should they try to escape. It is a crude way of policing but despite numerous complaints and some fatal incidents, the police have not relented.

“Hapana mdhara tirikumenya maPole” a young chap says when I meet a group of men in Zengeza. They lose me with their language. “Kumenya maPole” is a euphemism for idleness. Young men and women are spending their days doing nothing because there is nothing for them to do. There are no jobs. These are well-educated university graduates whose skills are going to waste in a country in dire need of development. “If I get an opportunity, I will have to leave,” says one of them. “There is nothing for us here. Hapana kana dhiri.(There is no deal) Ndikatireiwo mdhara …” he says as he asks his friend to share the bit of cigarette that’s left before it burns out. It’s mid-morning but one asks if we could get them a case of Super Chibuku. “It will help us through the afternoon,” he says. That is how they spend their days – sharing cheap beer, cigarettes and sometimes marijuana and other cheap liqueurs. It’s a desperate situation.

Biometric voter registration

Meanwhile, the Zimbabwe Electoral Commission, the elections management body, has been harping on about biometric voter registration (BVR). Last December, it promised that voter registration would start in April 2017. But to date, BVR remains a distant dream, unclear as to when and how it will be implemented. A provider of BVR kits was selected a few weeks ago. But questions were raised over storage of data. This raised fears of manipulation of data. It’s now less than a year before the next election is due and ZEC is still to start the BVR process. The draft voter registration regulations circulated two months ago are almost silent on BVR, suggesting it’s not a priority. They are crafted in such a way that ZEC will resort to a manual process. ZEC will simply announce that there is not enough time for BVR and it will be shelved. There will be some noises from the opposition but they know they will get their way in the end. They always do.

My assessment is that BVR is unlikely to happen in time for next year’s elections but that even if it does happen, it’s likely to be so shoddy that the outcome of the process will be messy and disastrous. There is simply not enough political will and time to carry out a satisfactory BVR process. To understand why, one has to put themselves in ZANU PF’s shoes. As the party that holds political power, ZANU PF has no real interest in the BVR process. If done well, BVR will result in a new, cleaner and more credible voters roll. ZANU PF has no motivation to have a new voters’ roll. If anything, they are more comfortable with the old voters’ roll which has served them well in the past. What incentive do they have to change a winning formula? The old voters’ roll has been kept secret and the former Registrar of Voters, Tobaiwa Mudede refused to deliver it to opposition parties in 2013 and since then. ZEC which took over from Mudede and should have custody of the voters roll has incredibly claimed that it doesn’t have it.  ZANU PF simply has no reason to give up the advantage it holds over the Mudede voters’ roll.

It will be a pleasant surprise if the BVR process succeeds. But I’m not holding my breath.

Proof of residence

An issue that has caused consternation is proof of residence as a qualification for voter registration. The source of the proof of residence requirement is the Fourth Schedule of the Constitution. Section 2 of the Fourth Schedule states as follows: “The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll, but any such requirements must be consistent with this Constitution, in particular with section 67.” It is on this basis that the Electoral Law and regulations provides for residential requirements but it is important to scrutinise the meaning and impact of this provision.

First, this provision does not make residential requirements mandatory. Rather, it says “the Electoral Law MAY prescribe additional residential requirements …” which means it is optional. There is no obligation to impose residential requirements and they can be done away with if they are inconvenient to voters. It is arguable that where such residential requirements may lead to exclusion of voters, these requirements may be excluded.

Second, the decision to impose residential requirements is subject to an important qualification: they “must be consistent with the Constitution, in particular section 67”.  The use of the word “must” means it is mandatory for additional residential requirements to be consistent with the Constitution and specifically section 67. Section 67 is part of the Declaration of Rights and provides for political rights. One of these political right is the right to vote as provided for in section 67(2). The right to vote is a fundamental right which enjoys precedence and special protection. The intention behind the qualification is that additional residential requirements must not unduly interfere with or compromise the right to vote. If therefore additional residential requirements dilute and affect the right to vote, they can’t be consistent with the Constitution or section 67. In my view, there is a strong argument against the imposition of additional residential requirements that compromise the right to vote.

How do additional residential requirements affect the exercise of the right to vote? There are gender, class and age implications attached to the additional residential requirements which the Electoral Law imposes. First, most young people, the youth, have great difficulty providing proof of residence. In the past, these rules have had to be relaxed to ensure that the requirement does not exclude the youth. Second, most women, suffer the same difficulty as the youth since the majority of properties or even rent documents are registered in the names of men. The ZEC Chair made a scandalous statement recently to the effect that women could ask their husbands to write on their behalf to prove residence. This is not only condescending but discriminatory.

The class issue is relevant in that compared to their wealthier and property owning counterparts, most poor people struggle to provide proof of residence. Most would have to rely on the cooperation of their landlords. Indeed, there are also homeless people who do not even have proof of residence. A voting system that discriminates between the rich and poor is not fit for that purpose. Finally, residential requirements will automatically exclude Zimbabweans in the Diaspora. The Constitutional Court recently reasoned that those in the Diaspora must return home to vote. But the additional residential requirements are likely to work against them, excluding them from the electoral process altogether.

ZEC’s argument is that the voting system for 2018 is polling-station based. This means voters can only vote at the polling station where they are registered to vote. This method of voting was proposed some years ago but has never been implemented until now. The idea was to promote transparency and prevent double-voting. It is on this basis that the residential requirements are regarded as imperative and avoidable. However, in light of the challenges associated with residential requirements, it may actually be worth scrapping the whole system of polling station based voting. It is not so indispensable that its implementation must dilute and override the fundamental right to vote.

After all, section 156(a) of the Constitution provides that “whatever voting method is used, it is simple, accurate, verifiable, secure and transparent”. As already argued, the additional residential requirements complicate a fundamental process and can be exclusionary in respect of various groups. However, it is unlikely that ZEC will do away with the additional residential requirements. It will simply refer to the law and argue that it is for Parliament to change it, notwithstanding that the Constitution imposes positive obligations on ZEC to take charge of the electoral process and ensure that it is fair and credible.

Financing democracy

Democracy is an expensive process. Someone has to carry the cost. The cost of the election process falls on the shoulders of the taxpayer. However, political parties and candidates also require funding for their campaigns. The ruling party has traditionally relied on the government resources and therefore the taxpayers. It could be agricultural inputs, food aid, government vehicles, fuel, the Youth Fund, etc. They have also extorted money from businesses. Business is generally timid in the face of government and the ruling party. The rents paid to the ruling party are considered part of the cost of doing business in Zimbabwe. When the ruling party “asks” for donations, businesses feel they have no choice but to comply. In the process, they are shouldering the costs of a dictatorship in the name of business. They might complain about the business environment but they are effectively funding the system that is stifling opportunities. In recent times, multi-national business have also entered the fray – contributing to the sustenance of a repressive regime.

On the other hand, the opposition parties have traditionally relied on donor support. However, this source appears to be drying up. A combination of donor fatigue, misappropriation and misallocation of resources and the never-ending divisions and squabbles in the opposition have contributed to the current parlous state of affairs. This lack of resources in the opposition compared to ZANU PF’s access to abundant resources from both the public and private sector is probably the single biggest impediment to change in the next elections. In light of this, one would expect the opposition parties to be more imaginative when it comes to fund-raising. However, over-reliance on donor support in the past seems to have affected the opposition parties’ fund-raising abilities. It was therefore quite odd and amusing to see some opposition supporters ridiculing and berating an independent candidate’s efforts at fund-raising. Fadzayi Mahere, a new entrant into the political arena offered to sell customised T-Shirts to supporters as part of her fund-raising campaign. Each customised T-Shirt costs $20. Some argued that they were too expensive for the ordinary person given the state of the economy. Others pointed out that it was futile to sell T-Shirts because they are usually given out for free. It is this argument that demonstrated the levels of complacency in a population that is used to so-called freebies from political actors.

What most people don’t realise is that those T-shirts they have been getting for “free” from political parties are not actually “free”. The truth is that someone somewhere has been paying for them. It could be the Zimbabwean taxpayer in the case of the ruling party which relies on government resources or foreign taxpayers in the case of the opposition and civil society groups that have benefitted from donor funds. Someone has been carrying the cost of those “free” T shirts. The idea of selling customised T-shirts might be ambitious in a low-income economy, but it must be welcomed as an imaginative effort at raising funds from local sources. My sense is that it is not the T Shirt that is on sale, but the cause. Those who part with their hard-earned dollars are doing so not because they want a new piece of clothing but because they want to support the cause. In my view, this is something that opposition parties struggling for funding should seriously think about as they seek to open new channels of financing in a market where funds are scarce.

Overall, the broad lesson for Zimbabweans is that it’s high time we embraced the idea of funding our own struggles instead of outsourcing responsibility to others. However, we have become so used to others funding our struggles that we balk at the mention of calls for fund-raising. As I have pointed out, apart from vote rigging, one of the biggest threats to next year’s elections is that opposition parties are under-resourced and will struggle to compete against a well-resourced ZANU PF which has access to state resources and uses the leverage of incumbency to extort support from business which is timid and almost always complies with the ruling party’s demands for fear of losing licences. If we don’t fund our struggles, others will and they will own them in our name.

Diaspora vote

Zimbabwe has a large population abroad – the so-called Diaspora. They want to vote in the next elections. Previous efforts have been thwarted. This trend is likely to continue and there is not going be Diaspora voting in 2018. This is something the Diaspora have to come to terms with an devise new strategies of participating in or influencing the elections. ZANU PF has always been sceptical of the Diaspora, the majority of which it believes is pro-opposition. Many Zimbabweans fled economic and political challenges, which ZANU PF subconsciously feels responsible for regardless of the political rhetoric. It fears the Diaspora voters will punish them and it has no incentive for permitting the Diaspora vote. It has been prevailing in elections without the Diaspora so there is no reason to include it in the elections. The Constitutional Court ruled in 2013, just before the elections against a petition that sought postal voting to be extended to the wider Diaspora beyond government workers who are permitted to use it. The reasons for that order were delivered this week – exactly four years after the order was made. It’s embarrassing for the Constitutional Court, the highest court in the country to have taken that long to deliver reasons for the order. But it is also a strategic decision, warning as it does of the court’s attitude towards Diaspora voting at a time when there is much advocacy for Diaspora voting.

Some argue that the decision was based on provisions of the old Constitution. That may be so, but I see little hope going forward. There is a new Constitution but the court is still largely the same. The new Chief Justice does not have a good record when it comes to Diaspora voting. He delivered a strange judgment in the Madzingo case in 2005 in which applicants sought extension of the vote to the Diaspora. In that case he ruled, quite incredibly, that the right to vote was not recognised as a fundamental right. This was notwithstanding the fact that the Constitution recognised universal adult suffrage and that one of the main principles that motivated the liberation struggle was the right to vote – one man one vote as it was referred to in those days.  I cannot see how this court will change course even under a new Constitution to allow Diaspora voting. It’s worth a try and there might be a pleasant surprise but it’s really a long shot. The Diaspora have to consider new and innovative ways of playing a role in and influencing the election. Returning home to vote is an option but it is limited by the fact that they first have to go home to register to vote should BVR go ahead. This will make the exercise very expensive as one must budget for two trips –registration and voting. But there are other ways which include their role in financing democratic forces.

Early election

Under normal circumstances, elections are held after every 5 years. The 5 year term begins on the day the President is sworn into office. According to section 158 of the Constitution, elections are due not more than 30 days before the expiry of the 5 year term. Since President Mugabe was sworn into office on 22 August 2013, the next elections are ordinarily due within the month before 22 August 2018. This means elections should take place in July/August next year. However, will this be the case in 2018? The purpose of section 158 was to give a measure of predictability as to when elections should be held so that all parties are prepared and no one is caught by surprise. In the past, setting election dates was entirely at the whim of the President, with no set guidelines on timing. This gave the incumbent an unfair advantage where he was also a contestant. He could wake up and decide there should be an election while others were sleeping. This is why the timing of the election was a bone of contention in 2013. President Mugabe just decided on his own without any consultation that elections should be held. He had done the same in 2008, just when opposition parties thought they were in negotiations with ZANU PF for electoral reforms. Section 158(1) was designed to limit this broad discretion on the part of the incumbent.

But is it possible to hold elections before the period set in section 158(1)? In other words, can elections be held much earlier than July/August 2018? The answer to this is that it is possible. Writing in The Zimbabwe Standard newspaper last week, lawyer and activist Doug Coltart presented a cogent piece explaining circumstances in which elections can be called. The most important part of the Constitution relevant for my purpose are provisions in section 158(1)(b) and section 143(2). Section 158(1)(b) provides that an election must be held not more than ninety days after the dissolution of Parliament in terms of s. 143(2). Section 143(2) provides that Parliament must be dissolved if the Senate and the National Assembly each pass a special resolution for dissolution. In lay terms, if Parliament votes to dissolve itself, then an election must be held within 3 months after the dissolution.

Is this possible? ZANU PF has the two thirds majority required to pass a special resolution to dissolve Parliament. History tells us that if Mugabe wants something his party will give it to him. If he wants an early election, all he needs is for Parliament to pass a resolution for dissolution in terms of section 143(2). This will trigger an early election within 3 months of the dissolution. My sense is that with the provincial Youth Interface meetings, Mugabe is already on his presidential campaign trail. He is a master of surprise and he will pick a moment when the opposition parties are still in disarray, trying and failing as they are doing to form a grand coalition. This is why he is so confident that there will be no coalition to worry about. My calculated guess is that Parliament will be dissolved by the end of this year or very early next year so that the general election will be due by March 2018. The opposition is best placed to work with these dates in mind so that they are not caught napping.

An early election makes sense for ZANU PF. This year’s harvest has been generally good. The opposition is still as disunited as ever. The entry of new political actors is causing further confusion and disarray in the opposition ranks. While his party is fractured, he is still in control and the rallies he is holding shows his hold is not yet under threat. It’s probably his last lap and he would love to go on a high. He is not getting any younger and there is no advantage in him delaying the elections any further. Recent survey by Afrobarometer has given him confidence. The sooner it’s done, the better for him and he can settle the succession issue once the election is done. Soon after the elections, there is likely to be a purge similar to the one that swept away former Vice President Joice Mujuru in 2014. Thereafter he can install a successor while he sets off into the sunset. His battle is not only against Tsvangirai and company, but it is also to outwit internal opponents within ZANU PF.