Speech given by Senator David Coltart
Law Society Summer School: Troutbeck
14th November 2008
I am grateful to Beatrice Mtetwa, President of the Law Society, for giving me a blank cheque today to speak about our electoral system.
You may say that this is useless, since cheques are all but worthless in Zimbabwe at the moment. Nevertheless, I will seize the opportunity to dream a bit with you today – to speak about some of the measures we still need, in my view, to ensure that the citizens of Zimbabwe are able to elect the people they believe are best suited and qualified to run the country.
As we discussed this morning, the last eight years presents a very sorry picture of our electoral environment.
Between 2000 and 2006, as Legal Secretary of the MDC, I was responsible for bringing all the electoral cases during that period. I brought some 38 challenges to the 2000 Parliamentary election. I brought Morgan Tsvangirai’s challenge to the March 2002 Presidential election. Yet, records show that by the 2005 Parliamentary election, not a single case had concluded with the overturn of a result. By the time of the 2008 Presidential election, Morgan Tsvangirai’s case was also not concluded. The same applies to the 2005 Parliamentary election – electoral cases were brought but not a single one was successful. These farcical delays and other issues have brought the entire electoral and judicial system into disrepute.
There are two lessons to be learnt from this.
First, in the overwhelming majority of cases, the complaint of the losing candidate had little to do with the electoral law per se. The problem was violence and the State’s unwillingness to deal with it. In other words, it doesn’t matter how good one’s electoral laws and systems are if violence is allowed to pervade the atmosphere, the process will not be free and fair and the will of the electorate will be subverted.
Second, much depends on the quality and independence of the judges rather than the electoral law. Several of the 2000 cases were fought in the High Court. Several of these cases resulted in fine judgements. However, when appeals were lodged by the losing Zanu PF defendants, the Supreme Court’s delay in setting the matters down and shocking dereliction of duty meant that these cases were never finalised. In the 2005 case, Mangoma v Mutasa, Justice Makarau handed down an excellent judgment, finding that food had been used as a weapon. However, she was then constrained by a serious flaw in the electoral system which required her to establish its material effect on the election which the learned Judge felt she could not do.
The point is that much depends on the quality of the judges. Research has shown that too much plasma TV affects one’s judgment. If the Courts are to play a meaningful role in the future, there will be a need to reform the judiciary to ensure that our benches are occupied by professional, independent and competent judges rather than politicians. In other words, it doesn’t matter how good one’s electoral laws and systems are, if they are not adjudicated upon by an independent judiciary.
In this situation, those laws simply provide a smokescreen of fairness which hides the harsh reality. This is illustrated by the changes to the law since 2000. There have been obvious improvements to our electoral laws since 2000. We have seen the introduction of translucent boxes; voting on one day; counting of votes at the polling station; posting of results outside the polling station and a minimum period of six months within which to hear cases.
These have all helped. However, as shown in June 2008, it is all absolutely worthless in the face of massive violence and a biased Electoral Commission.
We need a sea change in an approach to determining who is entitled to vote. The liberation cry of “one man (person), one vote†has been totally undermined by ZANU PF’s exclusive policy on voter registration. We need to change from an exclusive to an inclusive policy.
An exclusive policy does everything to exclude people from being on the voter’s roll. For example, one has to apply to go on; one has to prove residence by providing letters from chiefs etc; vast powers given to Electoral officials to arbitrarily remove one from the voter’s roll; there are very exclusive and restrictive citizenship laws.
In other words, the entire system is designed to make it difficult to register and
difficult to vote – this is the negation of the principle of “one person, one voteâ€.
What must be done to reform our Electoral legislation?
1. We need a change in citizenship provisions. Both present laws and those envisaged in the so-called Kariba Constitution (agreed to in September 2007 by the Zanu PF and MDC negotiators) are very restrictive. In essence, we need to respect a fundamental birth right – if one is born in Zimbabwe and at least one parent was lawfully resident in Zimbabwe at the time of birth, then one should be entitled to become a citizen.
We also need to take into account the deleterious consequences of both the liberation war and the events of the last eight years. If one was born outside Zimbabwe to at least one parent who was forced to live outside the country because of political circumstances, he or she ought to be entitled to citizenship by descent.
In other words, we must open up the number of people eligible to become citizens.
2. We must change registration procedures. Mudede boasts about his computerised registration system of births and deaths. He is correct in one sense; it is potentially a very good system. However, it has been subverted. We need to change the laws to ensure that every person who is born in Zimbabwe or who acquires citizenship either through registration or descent will automatically be placed on the voter’s roll upon reaching 18. In other words, one will not need to apply to be registered, it will be done automatically.
To ensure that a person’s address can be included for delimitation purposes, we should create an obligation on schools to submit address details to the Registrar General’s office of every child who turns sixteen. In the absence of this, we could us the address of birth as a default address solely to determine which constituency a person will be registered in.
We could also shift the onus for removal. If the Registrar General or anyone else wants to remove a person from the voters’ roll, the onus should be on the Registrar General to bring an application to the High Court, including personal service on the specific individual, to remove that person. The State must also fund the legal expenses of the Respondent to ensure that people are given every chance to remain on the voters’ roll.
3. We need to create a genuinely independent Electoral Commission. For all the claims that the Zimbabwe Electoral Commission is independent, the objective evidence shows that it is not. Until there is a genuinely neutral procedure regarding selection, it will remain a biased body. However, we do not wish to replicate Tsvangirai’s definition of an independent commission.
Instead, we need an expanded selection committee which will include political parties, churches, civic organisations and to create a “long list†from these areas. The constitution should proscribe minimum qualifications including gender, integrity, objectivity (not held office) and maturity. Those initially selected should be put before a public, televised hearing before a Senatorial select committee. Those approved by Senate should be presented to the President for selection from a “short listâ€. The President should then select a prescribed number from the “short listâ€.
4. We must prohibit the use of State resources in an election campaign. For example, the use of helicopters, ZRP, ZESA, police etc.
5. We must have mandatory public debates for the Presidential election.
6. Finally, there must be a zero-tolerance approach to violence. Violence and the threat of violence has been the single reason why our elections have not been free and fair for the past several decades. Until we totally snuff it out, it will continue to raise its ugly head. We need a specific provision in our law which will state that the moment any violence or threat of violence is established objectively by a court at any stage of the electoral process by any person, that this will void the election.
Some will argue that this is an impossible standard, but it is not. Why should Africa have a different standard to the rest of the world? Finnish elections in 2007 were obviously peaceful, as was the recent election of Barack Obama. It is possible.
We have a severe illness in our country. Our nation needs peculiar and harsh medicine to cure itself from the disease. Until we take this step and move from paying mere lip service to the principle of non-violence, we will never ensure that the citizens of Zimbabwe are able to choose the people they believe are best suited to run the country.
The Law Society has a major role to play. We have a unique opportunity to argue that these principles be part of the Constitutional reform process envisaged over the next 18 months in terms of the 15th September 2008 agreement.