(Last Updated on August 9, 2013 by Editor)
PRESIDENT-elect Robert Mugabe and Zanu PF’s crushing victory in last week’s elections was achieved through unconstitutional means, according to Veritas, a local leading lawyers’ grouping.
Owen Gagare
Veritas said several provisions of the Electoral Act and the constitution were breached, resulting in the polls falling short of Article II(4.b) of the African Union Declaration on the Principles Governing Democratic Elections and Sadc Principles Governing Democratic Elections which say polls should be held under certain stipulated conditions.
Even the proclamation of the elections was unconstitutional because Mugabe did not act on the advice of cabinet as provided for in Section 31H.
Veritas questioned the setting of the elections date by the judiciary, through a Constitutional Court ruling.
The group agreed with Deputy Chief Justice Luke Malaba in his dissenting judgment, which said setting elections dates was a matter for the executive, not for the judges.
“The Constitutional Court’s ruling departed from the previously accepted interpretation of the existing constitutional provision, which had been in place since 1980, stating that elections shall be held within a period not exceeding four months after the dissolution of parliament.”
Mugabe also violated Section 157 which states that an Act of Parliament must provide for the conduct of elections. He further amended the Electoral Act using the Presidential Powers (Temporary Measures) Act, although the electoral law can only be altered by an Act of Parliament.
The voter registration exercise was not done lawfully because Paragraph 6(3) of the Sixth Schedule to the new constitution required the Registrar-General’s Office, under the supervision of the Zimbabwe Electoral Commission (Zec), to conduct a voter registration exercise and voters’ roll inspection, at least 30 days after gazetting of the constitution.
The exercise fell far short of the constitutional provision since registration units spent only three days in each location, disenfranchising many potential voters.
Veritas said the voters’ roll was in shambles and contained a high number of dead people and those over 100 years old.
Veritas said Zec violated the law by treating the voters’ roll as a secret document resulting in parties receiving hard copies on the eve of the elections, thereby violating Section 21 of the Electoral Act, which says Zec must provide copies, in printed and electronic version, to parties within “a reasonable time” after an election has been called and to candidates within “a reasonable time” after nomination day.
It said throughout the election period, the state-controlled media shamelessly supported Mugabe and Zanu PF while ridiculing outgoing Prime Minister Tsvangirai and the two MDC parties, breaching Section 155(2)(d), which obliges it to provide all parties equal access.
Under Section 133H of the Electoral Act, the Zimbabwe Human Rights Commission is obliged to establish special investigations committees for every province to assist police liaison officers investigate cases of political violence or intimidation. These were not established.
Veritas said although it was accepted that the special voting was shambolic, allowing special voters to vote again was illegal as it breached Section 81B of the Electoral Act, which prohibits voters who have been authorised to cast special votes from voting in any other way.
There was no procedure laid down in the Act or the regulations allowing people to vote in a ward if they were not registered on the voters’ roll for that ward and, presumably, the people who were authorised to cast special votes would not have been within their wards on polling day; otherwise they would not have been eligible for a special vote.
Under Section 67(3) of the new constitution, every adult Zimbabwean citizen has the right to vote in all elections. In Section 155(2), the state is enjoined to take all appropriate measures to ensure that all eligible citizens have an opportunity to cast their votes.
However, no effort was made to allow Zimbabweans in the diaspora, prisoners and patients to vote.
Section 72 of the Electoral Act disqualified those in the diaspora from obtaining postal votes since only government employees stationed outside Zimbabwe and their spouses are entitled to apply for postal votes.
“Ironically, when Zec applied to the Constitutional Court for an order allowing special voters to vote on general polling day, it used the argument that Section 67(3) of the new constitution, which gives all adult citizens the right to vote, trumped the Electoral Act, which denies people authorised to cast special votes an opportunity to vote on polling day.”
Veritas expressed concern with the appointment of judges to hear election disputes as Mugabe ignored Schedule 8 of the constitution and Article 20 of the Global Political Agreement which says the premier should be consulted.