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Professor Jonathan Moyo

‘SADC ELECTION OBSERVATION MISSION SHOULD RETRACT FALSE CONCLUSION THAT ZEC CONDUCTED DELIMITATION EXERCISE IN VIOLATION OF THE CONSTITUTION OF ZIMBABWE AND SADC PRINCIPLES AND GUIDELINES GOVERNING DEMOCRATIC ELECTIONS (2021)’

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Below is the conclusion of the preliminary statement of the Sadc Election Observation Mission [SEOM] on Zimbabwe’s 2023 harmonised general election held last week:

“In conclusion, the Mission observed that the pre-election and voting phases, on 23-24 August 2023 Harmonised Elections were peaceful, and calm. However, for reasons outlined above, the Mission noted that some aspects of the Harmonised Elections fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.

This conclusion has led to two harmful wrongs that are damaging to Zimbabwe’s sovereignty: The first harmful wrong is an outright lie being peddled that SEOM’s preliminary statement concluded that last week’s election “did not reflect the will of the people of Zimbabwe”.

Flawed as it is, the conclusion of SEOM’s preliminary statement, which is quoted in full above, did not in any way, shape or form say that election was not a reflection of the will of the people of Zimbabwe.

The truth is that, while the preliminary statement is flawed, it nevertheless did not conclude that the election was not a reflection of the will of the people of Zimbabwe.

There’s nothing of that sort, not even by imaginary implication. The second harmful wrong arising from SEOM’s preliminary statement is the widespread disinformation in the local, regional and international media whose reportage is best exemplified by a @NwezroomAfrica405 report which said:

“SADC Zimbabwe election observer mission’s Dr Nevers Mumba says the elections fell short of the constitutional requirement of Zimbabwe, the Electoral Act, and Sadc Principles and Guidelines Governing Democratic Elections of 2021”.

It is pure disinformation to claim that SEOM’s flawed preliminary statement concluded that “the elections fell short of the constitutional requirement of Zimbabwe, the Electoral Act, and Sadc Principles and Guidelines Governing Democratic Elections of 2021”.

In fact, SEOM’s flawed preliminary statement says: “The Mission noted that some aspects of the Harmonised Elections, fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.

The operative part says: “. . . SOME ASPECTS of the Harmonised Elections fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.

The difference between “some parts” and “all parts” of the election is like that of night and day. While the peddling of outright lies and disinformation about SEOM’s preliminary statement has given Zimbabwe’s detractors hostage to fortune, attempts to get the flawed statement on the agenda of the Sadc Organ on Politics, Defence and Security are, in the final analysis, going to be doomed.

Meanwhile, there’s a renewed thrust to assert to use, in fact abuse, SEOM’s preliminary statement to justify inane calls for fresh elections under the auspices of Sadc, AU and “other international players”.

A major aspect of the management of Zimbabwe’s elections by ZEC, as singled out in SEOM’s preliminary statement as having violated the Constitution of Zimbabwe, is the delimitation exercise.

CCC politicians and academics have jumped on this issue and blown it out of proportion, based on what SEOM’s preliminary statement says about the issue, all of it based on hearsay, misrepresentations and outright falsehoods.

For example, on 25 August 2023, Dr Pedzisai Ruhanya posted this message about SEOM’s sensational claim that ZEC conducted the delimitation exercise unconstitutionally: SADC Observer Mission says that ZEC failed to conduct the Delimitation Process in terms of the provisions of the Zimbabwe Constitution 1:11 PM · Aug 25, 2023, Dr Pedzisai Ruhanya.

“If it is true that ZEC conducted the delimitation exercise unconstitutionally, then definitely there is a problem with the 2023 harmonised general election”.

But the factual and legal position is that SEOM’s allegation or claim, being regurgitated by CCC and the gullible media is false and manifestly malicious.

To understand this, it is necessary to reproduce in full what SEOM says in its report about how ZEC conducted the delimitation exercise, and to understand what conclusion SEOM draws from its narrative, and to assess whether the conclusion made by SEOM is justified, and whether SEOM has the jurisdiction and competence to pronounce itself on the matter, to the point of concluding that ZEC’s conduct of the delimitation exercise fell short of the requirements of the Constitution of Zimbabwe.

SEOM ON HOW ZEC CONDUCTED THE DELIMITATION

(d) Delimitation of constituencies

The Mission was informed that the delimitation exercise that was conducted in 2022 by the ZEC was marred with controversy. In one way or another, concerned stakeholders claimed that the report that was submitted by ZEC failed to observe the constitutional requirements for such an exercise, and that there were also divisions amongst serving commissioners of the ZEC regarding the veracity of the report. The main allegations made against the report was that it constituted gerrymandering, and that it failed to observe the correct methodology for calculating the 20 percent variance constitutional rule with respect to minimum and maximum sizes of the 210 electoral constituencies.

Legal challenges brought against the Delimitation Report of 2022 were dismissed by the courts.

The Mission however, noted that there remains questions regarding the delimitation exercise for the following reasons:

(i) In its Delimitation Report of 2022, the ZEC rightly states that, “the Constitution recognises the impracticability of having equal number of voters in each constituency by allowing the Commission to depart from this requirement within a stipulated margin.

In this case the Constitution in section 161(6) stipulates that ….“no constituency may have more than 20 percent more or fewer registered voters than other such constituencies”. The constitution in section 161(6)a-f also lists factors that need to be considered when delimiting since they are important during the exercise.”

However, the ZEC goes on to also state that, “Based on the provision of section 161(6) the Zimbabwe Electoral Commission then calculated the 20 percent deviation from the national average voter registration expected in each constituency which was 27 640. This yielded a deviation of 5 528 voters. Since the average number of registered voters was regarded as a stable benchmark against which delimitation of constituencies was conducted, the deviation figure was added to the national average to determine the maximum number of registered voters that a constituency delimited would contain i.e., 33 168.”

(ii) The Mission noted that the use of the average number of voters per constituency is not consistent with the provision of section 161(6) of the new Constitution that was adopted in 2013. The word “average” appears in section 61A(6) of the old Constitution of Zimbabwe under which it was permissible to calculate the minimum and maximum permissible number of voter per constituency by using the national average as the baseline. That word “average” does not exist in section 161(6) of the new Constitution which deals with the same subject matter. The difference between section 61A(6) and section 161(6) of the old and the new constitutions respectively is far from being merely technical.

(iii) In the new Constitution, and in the context of section 161(6), the maximum deviation is 20 percent of the voters registered in the constituencies. The new Constitution uses actual constituency by constituency registered voter population, not the national average number of constituency voter population to calculate the permissible deviation from the requirement that constituencies must have an equal number of voters. Mathematically, the two methods produce very different results and affect the equality of the vote with respect to the elections to Parliament.

On the other hand, since the country votes as a single constituency in the presidential election, the difference in the methods has no particular impact on the equality of the vote in that election. It was therefore not unexpected that ZEC would receive substantial criticism on this aspect of its latest Delimitation Report”.

SEOM’s narrative and conclusion, above, on how ZEC conducted the delimitation exercise is totally baseless, yet it has caused untold harm to Zimbabwe’s sovereignty and interests.

Instructively, the reason or case why SEOM is dead wrong on how ZEC conducted the delimitation exercise is in fact to be found in what CCC said or did or did not do about the delimitation exercise at the material time.

CCC opposed any court challenge, and in particular the one launched by Mr Douglas Mwonzora, arguing that requiring ZEC to redo the delimitation exercise using the formula favoured in SEOM’s preliminary statement would result in illegally and unconstitutionally deferring or delaying the harmonised general election.

Below is what CCC said through its then Spokesperson, Advocate Fadzayi Mahere: “Nothing in our Constitution or Electoral Law empowers any court to defer an election. Any such order would be ultra vires the Constitution. Even if the Delimitation Report is set aside (there’s very little scope for this), an election can’t be deferred at law”.

On who has the last word on the delimitation exercise, CCC was very clear that the Constitution unequivocally says it is ZEC. In this regard here is what CCC said on 15 March 2023, again through its spokesperson Advocate Fadzayi Mahere: “The Constitution says that ZEC’s word on the Delimitation Report is final. But let’s assume the court interprets “final” to mean it can still review the process, we revert to old boundaries at best. No provision says that if the Report is set aside, an election can’t happen”.

Now, if ZEC has the last word on the final delimitation report, how then can SEOM or anyone claim that ZEC violated the Constitution of Zimbabwe on its conduct of the delimitation exercise?

For the avoidance of doubt, and in particular for the edification of SEOM, which is led by the mercurial Nevers Mumba, below is what section 161(9) of the Constitution of Zimbabwe says about who has the final word on the delimitation exercise:

“Where a preliminary delimitation report has been referred back to it under subsection (8), the Zimbabwe Electoral Commission must give further consideration to the matter or issue concerned, but the Commission’s decision on it is final”.

Given that the one issue to which SEOM gave quite some considerable attention is delimitation, and further given that this issue has been used to scandalise not only ZEC but also the election as a whole, how then and on what basis did SEOM reach this conclusion:

“The Mission noted that the use of the average number of voters per constituency is not consistent with the provision of section 161(6) of the new Constitution that was adopted in 2013”.

Sadc through SEOM is accusing ZEC of having violated the Constitution of Zimbabwe. But no competent court of law in Zimbabwe reached such a conclusion.

CCC never reached such a conclusion before the elections.

But more importantly, the very same Constitution of Zimbabwe which SEOM claims was violated by ZEC makes it clear in black and white that the ZEC has the final word on the delimitation exercise.

So, what jurisdiction and competence do Mumba and his colleagues in SEOM have to reach such a scurrilous conclusion that ZEC violated the Constitution of Zimbabwe in its conduct of the delimitation exercise, and why is CCC now using that false and outrageous conclusion to tarnish Zimbabwe’s elections and sovereignty?

Again, for the avoidance of doubt, while Chamisa and CCC are now running around like headless chickens falsely claiming that ZEC violated the Constitution of Zimbabwe in its conduct of delimitation, the fact is that CCC refused to pursue any litigation on delimitation against ZEC.

Below is what CCC said on the matter, again through its then spokesperson, Advocate Fadzayi Mahere:

“Zimbabwe is not party to any litigation relating to the Delimitation Report in the ConCourt or otherwise. We are focused on pushing forward our Citizens’ Campaign & securing Citizen Representatives to ensure a BIG WIN in the elections”.

It is important for the relevant authorities in Sadc in general but in particular for the Organ on Politics, Defence and Security to pay particular attention on how SEOM has bastardised the true position regarding the manner in which ZEC carried out the delimitation exercise ,and how SEOM has misled Zimbabweans, misled Sadc and misled the world by peddling outright falsehoods based on claims that ZEC violated the Constitution of Zimbabwe in its delimitation of constituencies for the 2023 harmonised general election.

The falsehoods led to SEOM’s conclusion that ZEC’s conduct of the delimitation exercise,” fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.

A demand should be made and made urgently through the relevant channels for SEOM to retract its false, misleading and incompetent conclusion that the manner in which ZEC conducted the delimitation exercise,” fell short of the requirements of the Constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.

*This conclusion is wrong and so damaging that its retraction and correction cannot wait for SEOM’s final report*