Constitution Watch 23-2013


[16th March 2013]

The Referendum – Progress Review

Problems with Observer Accreditation 

Accredited observers were invited by the Zimbabwe Electoral Commission [ZEC] to witness the sealing of ballot boxes by returning officers at all polling stations at 6.30 am on Referendum polling day, 16th March.  This sealing is done prior to start of polling in the interests of transparency – to ensure the box is empty to start with and to avoid allegations of ballot boxes being stuffed.  In many cases, however, the sealing will have proceeded without observers present, because not enough observers were accredited to cover all 9 456 polling stations.

In fact the restriction on observer accreditation, especially those from the EU and its member states and the USA, meant that there were just too few observers to guarantee real credibility of the process.   The restriction also excluded many experienced observers with world-wide experience of election monitoring to international standards.

African Observer Teams

The following African observer teams were present for most of Referendum week, the first two at the invitation of the Government:

·       SADC  The 100-strong SADC observer mission is headed by Tanzanian Foreign Minister Bernard Membe, representing President Kikwete, who is the current chairperson of the SADC Organ on Politics, Defence and Security.  Mr Membe acknowledged in an interview that 100 observers were not enough to cover all the polling stations – that would require 1 000 observers, a number beyond SADC’s capacity.  The team will be in the country until 20th March.  [ZEC has said it will announce the result within five days of polling.]

·        SADC Parliamentary Forum  This is a 40-member team including parliamentarians from 11 SADC countries.  They have stated they will be guided by international and regional instruments guiding the conduct of credible polls.

·        Election Commissions Forum of SADC Countries [ECF-SADC], which was invited to observe the Referendum by ZEC.   The Forum is a well respected and recognised body that was established in 1998 and is based in Botswana, where it is housed by the Botswana Independent Electoral Commission.

Other African countries seem to be relying on their embassies here to field observers from staff stationed in Zimbabwe.

African observer teams and individual observers from African countries and African organisations have not been subjected to the same restrictions as those from certain countries outside Africa [see below].

Observers from Countries Outside Africa

Discrimination against US and EU member states

ZEC seems to have followed one particular political party line and divided this category into “friendly” countries and others, the other countries being  those applying restrictive measures/sanctions against certain Zimbabwean individuals and organisations, i.e., the United States and member states of the European Union.  As a result the USA and the EU countries have been subjected to severe restrictions on their observers.  The “friendly countries” have not.  All this is in spite of the fact that the Prime Minister has said the discrimination against the other countries is not an agreed inclusive Government policy. [See extract from Prime Minister’s statement below] 

The effect has been as follows:

·        “friendly” countries”  No restrictions on sending in observer teams, but as most of these countries have embassies in Zimbabwe, they have been content with getting observers accredited from their embassies.   

·        US and EU member states:  The restrictions applied have included a ban on sending in observer teams, large or small, from outside, and limiting observers from embassies in Harare to five persons per embassy, who must be nationals of the foreign countries concerned.  So the United States and the EU and its member states have not been allowed the large teams of observers they had applied for.

The ZEC press notice inviting applications from would-be observers did not mention these restrictions, but they were spelled out by ZEC acting chairperson Joyce Kazembe in a press interview last weekend.  She also said Western embassy nominees would be vetted with the assistance of the Immigration Department. 

[Comment: The exclusion of observers from the EU does not make sense, and is in stark contrast to the Government’s readiness to accept staggering amounts of funding from EU countries for the constitution-making process itself.  It is ironic that benefactors of the process are now unable to undertake the comprehensive observation they would wished of its completion – the Referendum at which the product of the constitution-making process is to be judged by the people of Zimbabwe. 

Zimbabwean NGO Observer Teams

Restrictions on civil society observer teams:  Zimbabwean civil society organisations have also suffered setbacks in getting representatives accredited as observers:    

·        the Zimbabwe Election Support Network [ZESN] asked for 700 observers to be accredited.  It was told its member organisations should apply in their own names.  This was an unnecessarily obstructive attitude, as the whole point in having an administrative network such as ZESN is to avoid this and for ZESN to ensure that its network members are represented by genuine, trained observers.  Also, it disadvantaged organisations and individuals based too far from the accreditation centres to get to those centres on time.  In the end, however, ZESN had over 600 observers accredited.

·        the application for observer accreditation by the Zimbabwe Human Rights Association [ZimRights] was rejected out of hand, on the ground that it and its Director and other members had been charged by police with serious offences involving allegations of forgery, fraud and publishing false information in a voter-registration context.  [Question:  What happened to the presumption of innocence until proved guilty in a court of law?]  On 15th March ZimRights succeeded in its High Court challenge of this blanket ban, with ZESN consenting to a court order obliging it to consider the ZimRights application properly.  But by 10 am on polling day, the accreditation of ZimRights observers was “still under consideration” and by end of polling had still not been granted.

·        Zimbabwe Peace Project observers were also denied accreditation.  The organisation’s Director, Jestina Mukoko, has been interviewed by police over allegations of illegal importation of short-wave radio sets.

Civil Society Threatens Referendum Boycott: Zimbabwean civil society threatened to boycott the Referendum over ZEC’s exclusion of some civil society players accreditation.  They wrote a letter of protest to the three “principals” but did not receive a response [protest letter available from].  In fact after the ZimRights court case most assumed that the exclusion would be over and did not boycott, though in reality accreditation of two major organisation, each having large numbers of trained monitors, was denied.  

ZLHR lawyers:  were on standby to provide legal assistance people arrested and subsequently detained as they exercised or attempted to exercise their right to vote during the referendum

Political party observers: In a Parliamentary election political party candidates and their election/polling agents are directly entitled to observe proceedings in polling stations and counting centres.  There is no equivalent entitlement for YES and NO campaigners in a Referendum.  The only solution was for parties and organisations interested in the Referendum to have representatives accredited as observers, and many such observers were accredited.  It must be borne in mind that such observers cannot be expected to be disinterested, independent observers of the process.

Objection to ZEC Restrictions on Observers

Ideally there should be twelve-hour plus coverage of all polling and counting of votes, but that would obviously require a very much larger number of observers than those actually accredited.  That ideal may have been difficult to achieve, but ZEC’s approach to the accreditation process must have contributed to keeping numbers down.  

This has resulted in criticism and protests, not only from civil society organisations but also from the MDC parties, and the Prime Minister [see below].  Although ZEC is a constitutional body, not subject to direction by any other person or authority, both ZEC and its Observer Accreditation Committee have attracted the criticism that they seem to have followed the ZANU-PF party line on observers.  [Vice-President Mujuru set the tone a few weeks ago when she said publicly that no observers from EU or Western countries would be allowed.  This was backed up Foreign Affairs Minister Mumbengegwi on 4th March when he said Zimbabwe would only allow observers from SADC, COMESA, African Union and other countries that were “not hostile” to it.  The position announced by ZEC acting chairperson Joyce Kazembe ahead of the commencement of the observer accreditation process on Thursday 7th March echoed what had been said by the Vice-President and Minister Mumbengegwi.]

Prime Minister’s Statement

In a statement issued on Tuesday evening, 12th March, the Prime Minister made it clear that the exclusion of international observers is not an inclusive Government policy, and that MDC-T had very different ideas from ZANU-PF on both civil society and international observers:

“3. Civic society participation as observers: The Principals agreed that ZEC must not prohibit local civil society organisations and NGOs from accreditation on the basis that they are facing investigations, charges or prosecution by the police because that would be contrary to the Bill of Rights and the cardinal rule of natural justice that every person is presumed innocent until proven guilty.  The Principals want this process to be as transparent as possible and no local persons must be banned from accreditation on this basis. 

4. International observers: Contrary to recent public statements by some Government officials, there is no agreed government policy on the banning of international observers from accreditation to observe the referendum and elections in Zimbabwe. While they can express their own opinions, no single party is entitled to make public pronouncements of government policy without the agreement of the other parties in the Inclusive Government. One party’s policies on the issue of international observers do not represent government policy.  Currently, there is no agreement on this issue and discussions between the Principals are still taking place. An announcement on the issue of international observers will be made at the appropriate time when consensus has been reached.”

No such announcement was made.

Outrage at ZEC Treatment of Media

Media individuals and organisations have reacted strongly to the difficulties placed in their path by ZEC policy towards them.

Double accreditation from ZEC and Zimbabwe Media Commission required: There seems little point in requiring journalists, whether local or international, to have two accreditations. 

Exorbitant ZEC accreditation fee for foreign media: As pointed out in Constitution Watch, a foreign journalist wanting accreditation to enter polling stations and collation centres had to get both Zimbabwe Media Commission and ZEC accreditation, which could cost him or her in excess of US$600,00 altogether.  As the administrative costs involved in accreditation cannot amount to anything like this amount, this requirement seems unreasonable.

Ministry of Information clearance had to be obtained for foreign journalists, as a pre-requisite to accreditation.  At least one – a Voice of America correspondent based in Johannesburg was denied clearance by the Ministry.


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