LAST week, I wrote an article, “ZEC in a Fix over Bye-elections” (see https://newzimbabweconstitution.wordpress.com/2015/01/22/zec-in-a-fix-over-by-elections/ ), in which I argued that ZEC had placed itself in an awkward position after initially and, for a long time, disowning its powers over voter registration and the compilation of the voters roll.
Now, with bye-elections having been called in two constituencies, ZEC had to either, maintain that adamant stance and declare their inability to run the bye-elections without the voters’ roll or make an incredible and ultimately embarrassing about-turn and declare that it has those powers, after all.
With bye-elections due on 27th March 2015 and the Nomination Courts due to sit on the 29th January 2015, ZEC was in a bind and had to make a decision.
On Tuesday, The Herald newspaper reported that ZEC is proceeding with the registration of voters. Although there is an attempt to gloss over its past denials, it is plain that ZEC has performed an embarrassing somersault, ditching its previous position. I should add that I very purposefully submitted that article to The Herald but they decided in their wisdom, not to publish it.
For the record, I always thought ZEC had the power to carry out voter registration and to compile and maintain the voters roll. Likewise, I always thought ZEC had an obligation to provide the voters roll where interested parties made a demand for it in terms of the Electoral Law. What surprised me all along was ZEC’s declaration of its own impotence in this respect.
The problem was that ZEC was strident in its denial of this power. ZEC, through its Chairperson have always maintained that they do not have this power because of the absence of enabling legislation. I thought this was wrong and my reasons for this are in the public sphere (https://newzimbabweconstitution.wordpress.com/2015/01/22/zec-in-a-fix-over-by-elections/ ).
I argued that ZEC did have the constitutional power and could easily exercise it if they had the will to do so, even in the absence of provisions in the Electoral Law. The absence of legislation was not a bar to the exercise of their constitutional power. But ZEC were adamant that they did not have this power.Advertisement
Why ZEC denied itself this power and declared impotence remains a point of wonderment. Now, though, it is odd that after opposing two court applications and writing under oath arguing that they had no power over the voters roll and voter registration, they have now come out to say they actually do have that power and are prepared to exercise it.
Why then are they still opposing the Mavedzenge and the Dabengwa and Zapu applications if, after all, they have now admitted that they do have the power to register voters and to compile the voters roll?
Why are they wasting public funds and the courts’ time defending applications when for all intents and purposes, by admitting that they have the power to register voters in the two constituencies they have effectively undermined and decimated their own legal defence? If they should succeed in their argument, will it mean that the bye-elections will also be null and void? Why have they not approached the courts to ask for an urgent determination on the matter, if they are not sure?
The odd thing is that they do not seem to see the hypocrisy of their ways and they do not even seem to be embarrassed by their complete about-turn in the face of what they have stated before with great confidence. Instead, you have The Herald shifting blame onto so-called Western-funded organisations.
“This dispels assertions by some western-funded organisations that it was impossible for ZEC to register voters because the amended Electoral Act had left out “crucial provisions on voter registration and inspection of the voters’ roll””, says The Herald in their story today.
Never mind the fact that this quote is not attributed to any “Western-funded organisation”, the empty statement is actually deceptive and very badly-clothed spin because it is ZEC itself, not anyone else, that has been saying that it does not have the power to register voters. It is appropriate to remind them since they have developed a convenient bout of amnesia.
The Herald forgets, very conveniently, that just a few weeks ago, they were castigating Gideon Gono, the former Governor of the Reserve Bank of Zimbabwe, in his efforts to become a Senator for Manicaland Province. On 24th September 2014, The Herald carried a story, “Gono’s Senate Bid in Tatters”, written by then Acting Editor, George Chisoko, in which the paper gleefully reported that ZEC had refused to register Gono because ZEC did not have the power to do so and this position had been embraced by Zanu PF.
In that article, The Herald even quoted the contents of a letter from the ZEC Chairperson, Justice Rita Makarau, in which she wrote:
“ … Honourable chairman, we regret to advice that whilst we now have the constitutional mandate to register and transfer voters, and are willing and ready to register and transfer voters, there is no legal framework on voter registration and allied matters as envisaged in Section 157 (1) of the Constitution, a vaccum (sic) that has made us hold back on voter registration, thereby prejudicing not only Dr Gono in this case, but the generality of the electorate in Zimbabwe.” (see: http://www.herald.co.zw/gonos-senate-bid-in-tatters-%E2%80%A2hes-no-registered-voter-in-manicaland-%E2%80%A2zec-boss-makarau-clarifies-position/ )
These are the words of the ZEC Chairperson, not some “Western-funded organisation”, as The Herald would now want us to believe. They were pleading their legal impotence, saying they had no power to register voters.
The same paper later carried a formal statement by Information Minister, Professor Jonathan Moyo in which he issued a vicious attack on Gono, describing him as “ignorant”, “preposterous” and “desperate” in the face of ZEC’s pronouncement that it did not have the power to register him as a voter.
The point here is that it is ZEC, not some Western-funded organisation, that has previously insisted that it has no power over voter registration and the voters’ roll. It is because of this that they have opposed the court applications by Mavedzenge, Dabengwa and Zapu. It is because of this denial that they refused to register Gono in Manicaland, therefore preventing him from taking the seat in the Senate. No-one forced them to declare their legal impotence.
It is this kind of behaviour that casts doubt on the credibility of ZEC as an electoral body. It makes itself vulnerable to the charge that it is being used as a tool in Zanu PF’s factional fights, so that its position on crucial matters is malleable according to the will and demands of a faction that has captured it.
For if they had paid attention and listened long back, they would have known that they had the constitutional power to register voters and to compile the voters roll. But then it seems it was politically inconvenient to admit this power but now it has become politically inconvenient to continue denying this power, they have decided to perform a somersault.
When I wrote that ZEC was in a fix over bye-elections last week, a reader responded and said, in fact they are not in a fix because, in Zimbabwe, these bodies do as they please, without any care for what the law says. I thought to myself quietly that he was right. And this about-turn by ZEC, without any apology whatsoever for their previous, diametrically opposite position, is simply a confirmation of that reader’s hypothesis.
At a time when the new Constitution has given ZEC new powers and there were expectations that it would usher in a new era of independence for ZEC, this latest episode is a massive dent upon its credibility.
I wonder whether, in the face of the position they have taken, they will continue to oppose the court applications and deny that they have no control over the voters roll or that they cannot register voters. I wonder too, what they will say at ZEC, should Gono re-submit his application for registration. Will they turn him away on the ground that they have no power to register voters, as they did before?
Whatever the case, ZEC cannot, in future, look back at this as one of their finest moments. For the professionals in that organisation, it is point of wonder, why they have allowed their reputations to be soiled in this manner. Perhaps they just don’t care …
This article was originally published on Alex Magaisa’s blog newzimbabweconstitution.wordpress.com. Alex can be reached at firstname.lastname@example.org