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ZEC always guided by the law: Chigumba

07 Jul, 2018 - 00:07 0 Views
ZEC always guided by the law: Chigumba Justice Chigumba

The Herald

Tichaona Zindoga THE INTERVIEW
As Zimbabwe gears towards harmonised elections on July 30, there has been a sustained campaign by some quarters to undermine the Zimbabwe Electoral Commission (ZEC) — the independent body constitutionally mandated to administer elections in the country — with questions around its composition, independence, impartiality and transparency. The attacks on ZEC are seen as an attempt to delegitimse the outcome of the crucial polls. The Herald Political Editor, Tichaona Zindoga (TZ), sat down with ZEC chairwoman Justice Priscilla Chigumba (PC) to discuss these issues.

TZ: Can you walk us through the mandate of ZEC and where it derives its power and legality.

PC: ZEC is one of those commissions which were set up in terms of Chapter 12 of the new Constitution which came into place in 2013. ZEC derives it constitutional mandate and the basis of its powers from the Constitution itself which actually stipulates firstly that it shall be an independent commission and gives it the exclusive mandate to deal with the registration, voters and all electoral processes. So basically its mandate is derived from the Constitution and from the Electoral Act and attendant regulations.

TZ: What is the composition of ZEC and its secretariat?

PC: ZEC in terms of its organogram is made up of nine commissioners. There is a chairperson, who is myself, who takes the oath of office in terms of the Constitution. We have a deputy chairperson and other commissioners who among all nine commissioners each superintends one province. I am responsible for Harare Metropolitan Province. As you can see, it’s quite a large province. The secretariat is headed by the chief elections officer and we have other officers, directors in various departments such as voter education, knowledge management, ICT etc.

TZ: How do you respond to allegations that ZEC is militarised, allegations which are of a serious nature and have swirled for some time now?

PC: We take those allegations seriously. We do have former members of the army, Prison Service, ZRP, Central Intelligence, President’s Office officers. When I came in as chairperson I took time to sit and look at those allegations and found out that approximately 13.8 percent of secretariat staff has a security sector background.

I checked all the records and I satisfied myself that of all of them none is currently serving. I would like to emphasise the fact that ZEC actually advertised certain posts and we had of that 13.8 percent of our secretariat, these are the employees of ours that responded to advertisement. They actually went through the interviews and were selected. So when you hear members of the public saying that ZEC is militarised, it gives the false impression that we walked into an army barrack or ZRP and arbitrarily chose certain people to come and work for us. But the truth of the matter is that most of these people, of the 13, 8 percent, actually joined ZEC more than five years ago.

As you know, there has been a freeze on Government posts so we have not been able to recruit anyone. So we have had these employees for quite a while, they are our employees, they were employed in terms of the standard procedures and we have taken the position that there is no law in Zimbabwe which prevents us from employing someone merely because they have retired from the army or police.

Our position is that we intend to keep our employees until such time as there is a law which instructs us or guides us to say as an electoral commission we may not employ such people. But we are an independent commission and we independently recruited these people and they are here to stay.

TZ: Can you elaborate on the concept of independence. How is ZEC as an independent body supposed to work with Government and what is the nature of interaction between the two? Do you take instructions from anybody, let’s say from the Ministry of Justice, Legal and Parliamentary Affairs?

PC: The Constitution guides us on the concept of independence and in a nutshell, the Constitution stipulates that ZEC “shall not” be under the direction or control of anyone. So that means in the discharge of our duties, we have absolute discretion in deciding what to do and how to carry out our mandate and our functions. In terms of our interaction with Government, we report to Cabinet through the Ministry of Justice, and when I say we report I don’t mean we seek permission from them to discharge our mandate.

What we basically do is that on a weekly basis we have a meeting with the Minister of Justice and we advise him of how far we have gone on our preparations for instance if we have had the minister briefed this week. It’s not only ZEC, but also other commissions, the Judicial Service Commission, the Prisons Service, the Attorney-General’s Office, we all meet the minister and we tell the minister that week’s activities.

For example, this week we would have told the minister that we have training for electoral officers in our province and what he simply does with the information is relate it to Cabinet. It’s a constitutional and legal way of actually keepingCcabinet informed about our activities and it benefits us in a way because for instance if we require money from the Treasury and if there is no money we go through the Minister of Justice, ask him to tell Cabinet to avail funds to Treasury. So it’s a reporting structure to keep Government apprised of all of our activities. We don’t seek permission from the Government through the Minister of Justice, he does not come to give us directions to say we should do XYZ, but sometimes he puts questions to us to say for instance, the question around the voters’ roll was raised in Cabinet and they would want to know what is happening with this and we respond to say this is how far we have gone.

TZ: Another important concept or tenet relates to transparency. To what extent is ZEC transparent given complaints for example, now that ZEC has not allowed political parties to participate in certain processes they need to scrutinise?

PC: It is my considered view that ZEC is more than 100 percent transparent and I will say so because of a few basic things. First thing is that we have what we call stakeholders engagements. We invite political parties to sit down with us and discuss. We invite civil society organisations and diplomats. Periodically, we do it at two months intervals. As we draw close to the elections, we will do these stakeholders engagement meetings once a month. We were doing them every two weeks and now we have a weekly chairperson’s briefing with the media where we sit with members of the media and advise them on what we are doing.

With regards to the question of ballot paper printing, what I will say is firstly, ZEC is an independent commission, that means it cannot be directed by anyone to do anything, it means it cannot be controlled by anyone to do anything. How we interpret that as a commission is to say in everything that we do, we must always be guided by the law.

So we start of from saying, what does the law say in regard to the ballot paper printing for instance?

The law explicitly says ZEC has the exclusive and sole mandate to design, print and distribute ballot paper.

So that is the legal position, the law is very clear; there are no grey areas. We have encouraged political parties during the time when the Electoral Amendment Bill was debated in Parliament to say look there is no legislative framework for these requests that you are making to us to be made part of these processes, so kindly go to Parliament and try to get these requests made part of the law. They did go to Parliament, if they want to be honest, they did try to get their requests made part of the law, it was debated in Parliament and the Parliament process, the legislative process itself didn’t work in their favour. And our position was, we must be guided by the law because we cannot be seen to be inventing arbitrary things which are not part of our law.

The basic problem that we are having with certain requests is that, where there is no legislative framework in place, it creates difficulties for us but in the interest of transparency we have said to political parties that, I will give an example. We have 55 political parties who successfully fielded candidates through the nomination courts.

So we have said look, we accept and admit there is no legislative framework, you tried to get the law passed in Parliament you failed, but in the interest of transparency why don’t you sit down as 55 political parties that are going to the election and try and reach consensus.

So we know that there is one particular political party which has concerns, why don’t you table your concerns amongst your peers as 55 political parties? We do have what are called multi-party liaison committees, whose constitutional mandate is to build consensus around disputes pertaining to elections. Those multi-party liaison committees are chaired by Commissioner Doctor Moyo.

So Commissioner Dr Moyo convened a meeting where he was supposed to discuss the modalities with the political parties to say, “What exactly is it that you like to see in the process of viewing the printing of the ballot paper or being included in the process?”

Before he could discuss the modalities, that meeting was disrupted and commissioners actually had to vacate the room because of what was happening there.

So this is now the bone of contention to say that the Zimbabwe Electoral Commission was not transparent because it allegedly didn’t consult political parties; but in our defence I would like to say we did set up meetings; but that meeting was disrupted and as a result we then had to proceed with printing because the idea was parties would sit down, discuss modalities and then they could be there when printing started.

The reason why they were not actually there is because that meeting was disrupted but we had a printing schedule which we had to stick to in order to be ready for the election day on the 30th, so we really couldn’t wait for political parties to organise themselves, we started printing.

However, three days into printing, Dr Moyo then sent out invitations to political parties to say ‘Please come’. The parties that are complaining did not avail themselves at the meetings. No modalities were discussed, so the commissioner used his discretion and that is now water under the bridge because we are actually half way through printing.

TZ: There is this issue around pictures on the voters’ roll, which has been subject of controversy. Can you explain how the concept of pictures on the voters’ roll works and what is the legal position regarding that?

PC: Alright, the first thing that I would really like to communicate is that the Zimbabwe Electoral Commission should be congratulated for availing a final voters’ roll to Zimbabweans for the first time; a good six weeks before election day. It has never been done before in the history of this country that the electoral management body actually availed a final voters’ roll that Zimbabweans could actually hold in their hands and say ‘This is our final voters’ roll’. So I think that we should be given some merit for doing that.

Now, the second thing that I would like to say is that it is actually not factually correct that the Zimbabwe Electoral Commission failed to avail copies of the voters list prior to our availing the final voters’ roll. I will tell you why. The law in 2013, the New Constitution, was the one which actually gave the mandate to us as opposed to the Registrar General to say the Zimbabwe Electoral Commission should start a new voters’ list. That is why we started registering voters afresh using the biometric voter registration system. It’s also a myth that there are ghosts on that voters’ list, because all the people on that voters’ list actually walked up to a BVR machine; they had fingerprints taken, they had photographs taken. That is the second thing.

The third thing of note is that despite the fact that the Constitution gave us the mandate to make a new voters’ list, there is no attendant legislative framework to control access to the data; which we got.

So what we basically have at the moment is we are juggling competing interests. The Constitution guarantees the right to access to information, but that right to access to information is not absolute. The Constitution also guarantees the right to privacy, the right to privacy is also not absolute. When we registered (new) all our voters’ afresh and took their biometric features, we didn’t contemplate a situation where the release of that data in a voters’ list would potentially impinge on the right to privacy.

So initially, as a commission, we had found nothing wrong with releasing the voters’ roll as it was. We were then alerted by legal advice to say you need to be a little bit careful with the data that you release, especially if that data has the potential of being misused or abused; for instance, identity theft; security concerns. We had certain public statements to the effect that people intended to use those pictures to go and knock on people’s doors and ask people to verify whether their faces were actually on the voters’ roll. We found that unacceptable.

Now, the reason why we found that unacceptable is: the Constitution says we must provide a voters’ roll which is in analysable format and which is searchable. Now what that basically means is that in order to analyse a voters’ roll, it must be in a certain format. So, we put it in Excel format, we then put in names, addresses and ID numbers and it is our considered view that the inclusion of people’s pictures is not going to make the voters’ role any more analysable than it already is and moreover, we did open up the voters’ role for inspection for an eleven-day period if you recall and what we did during that eleven-day period is we actually printed hard copies of the voters’ roll and we said to voters ‘Look, all of our designated polling stations we have turned them into inspection centers. We would like Zimbabweans to physically go to inspection centres and take a look at the voters’ rolls’.

If you had gone to your polling station, which was an inspection centre, you could have seen a hard copy of the voters’ roll. You could have actually seen your picture on that voters’ roll because the hard copy which we availed during inspection is similar to the one which will be availed on polling day and that one will have pictures.

So, the criticism that people went to nomination court without benefit of having seen the voters’ role, in our view, is unwarranted because hard copies of those voters’ rolls, polling station-based voters’ rolls, were actually available. So those who wanted to see which of their neighbours they could actually ask to endorse their nomination, could have done that during the inspection period because those hard copies were available.

It is actually not true, I would like to emphasize, that we did not or we failed to avail even provisional copies. So, during the inspection period, the voters’ roll was availed in three forms. It was in hard copy at the inspection centres, which are our polling centres. It was there in soft copy, we had it on a link. It was there at all our provincial centres; at all our district centres and for your information, it’s actually, as we speak, available at all district and provincial centres. You can actually walk in and have a look at the voters’ roll.

So, the underlying thing behind our refusal to provide a voters’ roll with pictures is that we have provided it in searchable and analyzable form despite the lack of pictures and we have withheld the pictures out of legal concerns for the privacy of others. There are no rights in the Constitution which are absolute. Every right is subject to limits in a democratic society, and we believe that we have discharged our mandate to produce and provide a final voters’ roll, which is analyzable and searchable and we have fulfilled our Constitutional mandate at every stage of the electoral process we have availed copies of even the provisional voters’ roll.

TZ: Other concerns, and we have seen this, include people with multiple IDs or an improbable number of people staying at a particular address. How do you respond to such allegations?

PC: I will take that in two parts, let`s deal with the question of a large number of people apparently residing at one place on the voter`s roll. If you recall, when a potential registrant walked up to a BVR kit, there was certain information they were supposed to provide such as proof of residence. A lot of our residents, let`s take one particular case where there were 122 people registered at one place, they all brought sworn affidavits that they resided at that place. Now, we trained our kit operators to check that sworn affidavits were genuine and authentic. As long as there was a sworn statement from a person stipulating that they resided at a certain place, our kit operators would accept those affidavits. In terms of our administrative processes, there is absolutely nothing that we did wrong as a commission in accepting those sworn statements. It might be debatable whether or not those people ought to have been prosecuted for swearing to affidavits but with regards to that particular instance. By the way, (regarding recent reports of 400 people staying at a particular address) it is actually 122 people, it`s a church shrine we understand there are some residences there at the church shrine. It is not 400 or 300, it is 122 and they all brought sworn statements which was in line with our stipulated procedures so we did nothing wrong.

The second part of your question was with regards to identity particulars which appeared to not to be in order. We have been told there is a person who is 150 years old, we have been told that there are people with similar IDs. You will find that those people with ID particulars that were rejected by the system are actually on the exclusion role, not the voters roll. It is something which is beyond our control as a commission, because we actually don`t have a mandate to register citizens, we don’t issue ID. What we basically did with the data that we received is, wherever we flagged similar IDs, similar names or people who appeared to be shall I say to have an abnormal length of life, we referred all those cases to the Registrar General because he has the mandate to keep the register of citizens and he basically then said to us, this person is not in our system.

I do not want to speak for the Registrar General because I don’t have the mandate but basically I understand that there are some people who did some unorthodox things in order to register themselves as citizens of Zimbabwe. That is the mandate of the Registrar General, he is seized with these matters. What we did is that when those people were flagged by our system, we excluded them from the final voters` roll, they may have appeared on provisional voters` rolls but we excluded them from the final voters roll and referred them to the Registrar General for correction and investigation and possible further action which is within the purview of the Registrar General. Yes, we admit people walked up to our machines; they were registered but when they were flagged they were excluded. If you recall, one of the basic requirements of being registered to vote is that one must be a Zimbabwean citizen and we use our national IDs to show that we are citizens. The minute you have a problem or an anomaly with your ID, you are no longer eligible to be registered to vote. We do accept and we have encouraged people to say, if they correct those anomalies they can still reregister and appear on the 2023 election, so it is not necessarily fatal.

TZ: In the process of printing ballot papers, how safe are these ballot papers and their specimens from leaking to the public?

PG: The places that we have chosen for printing of ballot papers as you know, Printflow is printing our ballot paper for council elections and Fidelity is printing our papers for the presidential election and the National Assembly. We have absolute confidence in the security with both those buildings with regards to ballot papers that are in the process of printing.

The question of leaking to social media, nothing is ever a 100 percent foolproof but what I will tell you with regards to the process is that we are basically an administrative body. In terms of administration, the design of the ballot paper originates in a department here at ZEC. So, we have a ballot paper design department which is manned by experts who sit down and say this is how we are going to design the ballot paper, these are the colours that we are going to use, are we going to use A4 size paper or are we going to use A3. So, for instance, I will tell you that for the presidential election, ordinarily we procure what are known as ballot paper rolls but for the presidential election we now had to procure ballot paper sheets because of the high number of candidates. Human beings being what they are, there is a department here, all of our offices here I have a 100 percent confidence in their ability to keep our material confidential.

TZ: What happens if they do leak?

PC: If they do leak, we must find the source of the leak and prosecute the person.

TZ: Does it not compromise the process or otherwise a rethink of the process?

PC: No, I don’t believe that it compromises the process because the constitution gives us the exclusive mandate to design, print and distribute. So, we still have the exclusive mandate we are still in control and we will still print and go ahead and proceed. People can speculate on social media, we understand all sorts of things on social media, that the ballot paper if you put an X on one end it can migrate to the other end after 12 hours, a lot of the things being said on social media are mere speculation.

TZ: MDC Alliance, one of the contestants in these elections, has just reiterated that it will not participate in the coming elections if certain demands are not met. Can you highlight what demands have been made to you, at least formally, and what your response to the same is?

PC: The first thing I would like to say is that our electoral laws are persuasive, they are not mandatory. For instance, let`s take registration to vote; we don’t have laws that compel Zimbabwean citizens to vote. In certain jurisdictions, if you do not register to vote within six months of turning 18, certain things will happen to you. We do not have laws that compel citizens to participate in the electoral processes. Similarly, if you register to vote and you decide not to vote on election day, we do not have laws that follow you to your house to come and say, you are on the final voters’ roll why didn’t you exercise your right to vote?

The right to vote and the right to participate in electoral processes in Zimbabwe is voluntary. If I decide as the chairperson of ZEC to say I am not going to exercise my right to vote I am allowed to make that decision and the law does not come to look for me to ask why I did not exercise my right. It is actually my right to decide not to exercise my right to vote. I think I have answered your question without commenting directly on what other people may or may not have said. One is at liberty to exercise one`s right by deciding not to participate.

TZ: But we are talking about what is considered a major player in the process. If they decide not to participate will it not render the process a sham and its outcome?

PC: I would like to go back to the Constitutional Court and the judgment which they gave sometime I believe was in February 2018. The Chief Justice has given us guidance. Remember we said as an Electoral Commission we are always guided by law. Two political parties went to the Constitutional Court and asked the Constitutional Court to stop the election on the basis that they would like the law changed with regards to financing of political parties, they were of the view that the law was not fair to them.

They said dear Constitutional Court please stop the election so that we can change this law so that it is fair to all of us. I have said and I was paraphrasing what the Chief Justice said in that judgement, he said, once the President proclaims the election date nothing can stop that election because in proclaiming the election date, he is exercising an exclusive mandate which is derived from the constitution. Once an election date is proclaimed, those timelines which kick in up to this date cannot be stopped by a court of law. If you actually take that judgment – it`s a judgment of the full bench of the Constitutional Court – and you read it, the Chief Justice actually says that it would be incompetent for any court in Zimbabwean to make a court order to stop the election because an election is called in terms of the constitution.

I did paraphrase what the Chief Justice said, I said in other words he said nothing short of an earthquake will stop the election. I was telling stakeholders that we are guided by what the constitutional court said. To answer your question directly, I believe that we have been guided by the highest court in the land that once the election date has been proclaimed nothing can stop that election. It is a question of the law which has been interpreted for our guidance by the Constitutional Court; it is not ZEC playing games with anyone, it is the law.

TZ: Some people think you are being arrogant. What is your response to that?

PC: My response to that is that I am not being arrogant when I am merely interpreting a judgment of the Constitutional Court. I may have paraphrased what the ChiefJjustice may have said but in essence, that was the ratio decidendi of that judgment from the Constitutional Court in dismissing that application by political parties which said please stop the election because we need to do certain things. The Chief Justice said once a proclamation has been made nothing can stop an election, it is there in that judgement. I was merely paraphrasing those words in a bid to advise stakeholders that whatever legal remedies you may have, stopping an election is not one of them.

TZ: What is the role of foreign observers, do foreign observers and envoys influence the way you discharge your mandate?

PC: I will answer the last part of the question first, the answer is absolutely not. As I have already said; not even the Government of Zimbabwe can direct or control ZEC to do anything or not do anything. So, foreign observers or envoys cannot place us under their direction or control. We do have engagements with them, where they try and understand the electoral laws. We try and disseminate information saying in this jurisdiction this is what are law says with regards to such and such. We are not influenced by them although they are one of our vital stakeholders and we do have discussions with them.

TZ: How much are these elections costing us and are resources available to see the process through?

PC: As you know we submitted a budget of $198 million to Treasury. Treasury committed itself to releasing a $140 million to us and the deficit we are grateful to our funding partners UNDP, European Union, UN Women and others. So far, I really would like to acknowledge and thank the Government of Zimbabwe for putting their money where their mouth is because the primary responsibility for funding our election lies with the Government of Zimbabwe and they have fulfilled their primary responsibility. In fact, we are expecting the last tranche of all the money. We have procured ballot papers, ink, operational vehicles, all electoral and election material using money from Treasury. Of course, the deficit was made up by our funding partners.

TZ: Can ZEC and Justice Priscilla Chigumba be trusted to deliver a clean and acceptable process of election in Zimbabwe in the year 2018?

PC: Justice Priscila Chigumba is not above ZEC, Justice Priscila Chigumba is a servant of the ZEC; which means she is a servant of the Zimbabwean electorate. I would like to reassure Zimbabweans, those who are registered to vote and even those who are not registered to vote; we will deliver a free, fair, credible and transparent election. I would like to acknowledge and thank Zimbabweans for being very peaceful. We had a very peaceful pre-election phase, we are now in the election period, we did have isolated incidences mostly of intraparty violence. We had a few clashes around the primary election and mostly our country has been peaceful and I would like to thank Zimbabweans for that. Let`s encourage each other to be peaceful towards each other, we really need to be able to exercise our rights to choose our preferred leader without necessarily fighting with each other if we have different choices.

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