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Zimbabwe at the Crossroads: The case for electoral reform and inclusive governance – Lessons from Kenya?

In the growth of every electoral system, there comes a time when old practices must be modified in order to respond to emerging challenges and keep pace with contemporary developments.

Zimbabwe once again finds itself embroiled in a post -election dispute. However, this time there is a difference : Election observers appointed by the regional body SADC have, for the first time in Zimbabwe’s election history, found that Zimbabwe’s elections failed to meet the minimum standards outlined in SADC guidelines.

Zimbabwe’s main opposition party has called for fresh elections to be held under international supervision as a way of resolving the dispute.

The reality on the ground, however, is that following his inauguration this week, President Emmerson Mnangagwa has begun to serve his second term.

This means that even if SADC, which now appears seized with Zimbabwe’s electoral crisis, was to edge the main parties towards a rerun, the counter-argument—that under Zimbabwean law, only the Constitutional Court has the authority to set aside a Presidential election and order a rerun—is unassailable.

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The ruling party’s incoming administration is unlikely to relish the thought of enduring another five-year period marked by attrition, during which Zimbabwe would consistently grapple with its status as a pariah state in the eyes of Western nations- a status that carries with it the onerous burden of economic sanctions.

In considering possible pathways to navigate its way out of this impasse, Kenya’s election history offers Zimbabwe’s government salutary lessons.

In 2007, Kenya faced an existential crisis in the aftermath of post-election violence, which tragically claimed the lives of over 1000 people and brought the country to the brink of self-destruction.

To avert the crisis, former President Kibaki took the bold initiative to establish an independent review commission headed by Justice Kriegler, then a judge of the constitutional court in South Africa. The task of the Commission was to review the country’s electoral system and oversee its transformation in time for the 2013 general elections .

If President Mnangagwa follows the route Kenya took, and appoints an independent review commission, he could go a step further, and through dialogue with ordinary citizens, include in the Commission’s terms of reference a requirement to consider a legal framework that fosters a culture of inclusive governance so that it becomes a permanent feature of our governance system.

An independent electoral reform commission appointed by President Mnangagwa could operate alongside a coalition government, as was the case in Kenya following the disputed 2007 Presidential Elections.

Amidst the uncertainties surrounding the road Zimbabwe should take in the light of recent events, is a growing consensus that a comprehensive electoral reform programme is the only viable way forward if Zimbabwe is to rid itself of the curse of disputed elections.

A new era beckons in the evolution of Zimbabwe’s hard-won electoral democracy. For the first time since independence, the post-election period offers Zimbabweans from diverse political backgrounds a historic opportunity to unite across political lines and help reshape the nation’s destiny through transformative electoral reform.

The Role of Electoral Commissions

In countries that aspire to uphold the norms of electoral democracy, election commissioners of unimpeachable competence and integrity are generally entrusted to provide leadership and strategic direction in the conduct of electoral processes.

The lack of public confidence in the integrity and competence of Africa’s electoral commissions has been a cause for concern throughout the continent’s troubled election history. This is true even for countries like Nigeria, Zimbabwe, and Kenya, who share a proud history of sacrifice and solidarity in the struggle to attain ‘one person, one vote’.

Nigeria’s Presidential elections yielded disputed outcomes in 2011, 2015, 2019, and 2023; in each instance, the country’s electoral commission faced allegations of a lack of competence and transparency. In a news article earlier this year, a columnist in the Tribune, a respected independent paper in Nigeria, reported that the Electoral Commission’s performance in 2023 had reached a new low.

In the last thirty years, Zimbabwe has been haunted by the spectre of post-election disputes, in which the losing candidates have raised concerns about the mismanagement of elections. The violence that has accompanied Zimbabwe’s cycle of disputed elections and blighted the lives of thousands of our fellow beings brings shames to us all.

In Kenya’s 2017 Presidential Election Petition, Chief Justice Maraga warned that the failure to manage elections properly has grave implications for the stability of the nation-states of Africa:

“We further note that elections the world over are competitive events. Presidents in many parts of the world, and especially in Africa, wield a lot of power. The influence that comes with the office makes it very attractive. That influence cascades down through all elective positions to the lowest. Candidates and political parties often do anything to be elected. Besides the candidates, the electorate themselves, hoping for an improved standard of living, get equally agitated. All these factors make elections at every level extremely ‘high-pressure events. If they are mismanaged, or candidates do not respect the rule of law; if the average citizen, political parties, and even candidates themselves do not perceive them as free and fair, elections can, and have led to instability in some countries.”

The Malawi High Court’s judgment in the 2019 Presidential Election Petition reminds us that the destiny of a nation often turns on the ability of its electoral commission to discharge its responsibilities in strict conformity with the law.

August 2023 General Elections

On the eve of the election, Zimbabwe Electoral Commission Chairperson Hon. Justice Chigumba struck a positive note, assuring the nation that the Commission was well-prepared to conduct free, fair, and transparent elections.

While no electoral system is infallible, the interim reports from various international observer missions do not reflect well on the performance of Zimbabwe’s Electoral Commission.

Early warning signs, suggesting that all was not well within the Zimbabwe Electoral Commission had been flashing several months before the elections.

In January 2023, as final preparations for Zimbabwe’s general elections got underway, seven election commissioners staged a rebellion. In a widely publicised document, they petitioned the country’s President to reject the Draft Delimitation Report submitted to him by the Commission’s Chairperson and her deputy, on the basis that it violated the principles of the Constitution.

Apart from placing the President in an invidious position, the actions of the seven commissioners were contrary to the provisions of the Electoral Act, which require election commissioners to act collectively and to put to a vote any issues on which they fail to reach a consensus, with the Chairperson having a casting vote.

This public fallout amongst the Commission’s leadership raised legitimate concerns about the propriety of the country proceeding into the August 2023 elections without a legally functional electoral commission in place.

The Commission’s failure to assure the public that the commissioners had resumed working collectively, along with its subsequent actions, particularly in managing the nomination process, only served to deepen these concerns.

A glaring example of the Commission’s difficulties in managing the nomination process was its failure, in the case of exiled Presidential candidate Saviour Kasukuwere, to take responsibility for its decision to accept his nomination as valid.

The Commission could have asserted its authority and constitutional independence by defending its decision to accept Kasukuwere’s nomination as valid and outlining its full reasons. A finding that the nomination court had erred in accepting Kasukuwere’s nomination would have required the High Court to consider Kasukuwere’s entitlement to rely on the principle of legitimate expectation. After all, the Commission had consistently led Kasukuwere to believe that his nomination was valid, to the extent of including his name in a government proclamation listing the validly nominated Presidential candidates.

However, instead of asserting its independence, the Commission declined to take any position and informed the court that it would abide by its decision.

Still, it’s important to acknowledge that Hon. Justice Chigumba and her team worked tirelessly under the most trying conditions imaginable to ensure that Zimbabwe held its elections on time. Whatever their shortcomings, now is the moment for Zimbabweans to come together and take responsibility for the transformation of the country’s electoral system.

As former Deputy Prime Minister Professor Arthur Mutambara astutely observed in a recent comment:

“The cycle of disputed elections continues. We must unite as a nation and address this challenge. We need to establish a method for conducting elections that are both fair and credible.”

Professor Mutambara’s call is for Zimbabweans from across the political spectrum and diverse backgrounds to come together and collaborate in laying the foundations for an electoral reform process that will shape their destiny and ensure a better tomorrow for all of us and generations that follow.

Reforming Zimbabwe’s Electoral Commission – Lessons from Kenya

Kenya’s experience in electoral reform and the landmark election judgments of its Supreme Court can serve as a valuable source of inspiration and guidance for Zimbabwe as it embarks on its own journey towards transforming its electoral system.

In 2007, following recommendations of the Independent Review Commission headed by Justice Kriegler, Kenya launched an electoral reform program that is unparalleled in Africa.

In subsequent Presidential election disputes, Kenya’s Supreme Court has taken an uncompromising approach to violations by the country’s Electoral Commission of the principles of electoral democracy enshrined in Kenya’s transformed election system.

In the 2022 Presidential Election, Kenya once again found itself in the throes of a post-election dispute, in which the competence of its electoral commission was a central issue. Rising to the occasion, in an instructive judgment that keeps the country’s electoral reform process on track, Kenya’s Supreme Court makes this observation: that urgent electoral reforms were imperative to address the governance crisis within the Electoral Commission and its mishandling of the electoral process.

From these remarks, we can gather that, in the court’s opinion, the governance crisis within the Electoral Commission stemmed partly, if not entirely, from the inadequacy of the Commission’s legal framework.

A brief summary of the factual background to the judgment is essential:

In the evening of 15 August 2022, as millions of Kenyans waited for the electoral commission to announce the results of the Presidential election, violent scenes, shown in a live television broadcast, erupted at the National Tallying Centre.

Kenya’s Supreme Court recounts the events of that day:

“The violence was swiftly contained by security forces, but two different factions of the Commission emerged. On one part of the screen was the chairperson, readying himself to declare the result, while on the other part were four Commissioners on the lawns of the Serena Hotel – Nairobi, announcing that they would not ‘own’ the result that was soon to be declared by their chairperson. The four Commissioners informed the public of their rejection of the yet-to-be-announced result, terming it ‘opaque’ due to the manner in which the chairperson had been conducting the verification and tallying exercise.”

The developments that followed this television drama tell their own story:

• After Kenya’s security forces restored order, the electoral commission’s Chairperson announced that William Ruto had been duly elected President of Kenya. Aggrieved at this announcement, Raila Odinga, the losing Presidential candidate, brought legal proceedings challenging its validity;

• On September 5, 2022, in a unanimous decision, the Supreme Court ruled that William Ruto had been validly elected;

• Raila Odinga did not accept the Court’s verdict and launched a protest campaign, that he threatened to continue until an independent party conducted a forensic audit of the Electoral Commission’s computer servers in the August polls. In a chilling statement, he added: “The war has begun; it will not end until Kenyans have obtained their rights.”

• On December 3, 2022, President Ruto established a tribunal to investigate the conduct of the dissenting commissioners .

The 2022 Presidential Election Petition presented Kenya’s Supreme Court with an unprecedented challenge: it had to determine an election dispute in which the Electoral Commission, the body with ultimate responsibility for the proper conduct of elections, had ceased functioning as a corporate entity.

Four of the seven commissioners entered the fray and urged the Court to nullify the election because their Chairperson had committed serious violations of the law.

In her opening remarks, Chief Justice Koome noted that ‘Kenya’s quest for enhancement of democratic governance through electoral reforms has been long and well-documented.’ With a palpable sense of despair, she added that despite efforts at electoral reform, Kenya’s electoral commission had yet to gain public confidence and trust in the management of elections.

The arguments presented to the Court during the proceedings show why Kenya’s Supreme Court felt it appropriate, as a constitutional obligation, to recommend specific electoral reforms to address the governance crisis within the Electoral Commission.

Raila Odinga’s legal team argued that the four dissenting commissioners acted appropriately by informing the public that they rejected the results their Chairperson intended to announce. They told the Court that the Commission’s Chairperson had violated the law by designating himself as the ‘Presidential Returning Officer’ in Gazette Notice No. 4956 of 2022, a position with no legal basis. Furthermore, they pointed out that the Chairperson had excluded the four commissioners during the final verification and tallying of the Presidential election results.

On Raila Odinga’s behalf, it was contended that in the absence of consensus, the view of the four dissenting commissioners, that the results announced by their Chairperson were a nullity, ought to prevail, as they were in the majority.

In response, the Commission’s Chairperson maintained that although the power to verify, tally, and declare the results of a Presidential Election belonged solely to him, he had, in the spirit of collegiality, involved all the other Commissioners in the entire electoral process, including the declaration of the final result.

The Court disagreed with the Chairperson’s contentions but accepted his evidence that he had not excluded the four commissioners from verifying and tallying the Presidential result.

Towards the end of a painstaking 132 -page judgment, the court couches its decision to recommend specific electoral reforms in terms that are an exemplary and eloquent demonstration of the moral obligations of judges when they preside over election disputes:

“The Court retains a constitutional obligation to point out the institutional dysfunctionality undermining the optimal functioning of the IEBC (Independent Electoral and Boundaries Commission). It is clear to us that there are legal, policy, and institutional reforms that are urgently required to address the glaring shortcomings within the IEBC. We, therefore, recommend as follows:

(a) On corporate governance issues:

Parliament should consider enhancing the statutory and regulatory framework on the separate policy and administrative remits of the IEBC.

The IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy, and oversight responsibilities of the Chairperson and the Commissioners and develop institutionalized guidelines on how to manage the separation of administrative and policy domains.

The roles of the Chairperson, Commissioners, the Chief Executive Officer, other staff, and third parties should be clearly set out in both the legislative and administrative edicts as stipulated above.

(b) On election technology:

To avoid suspicion from stakeholders, unless and when it is absolutely necessary, access to the servers supporting the transmission and storage of Forms 34A, 34B, and 34C should be restricted to IEBC staff during the election period. The IEBC should ensure that the servers supporting the elections and those serving their internal administrative work are distinct and separate. This would then allow the Court, should the need arise, to carry out forensic imaging of the same without compromising and/or infringing any third-party agreements.”

Corporate Governance

The Kenyan Supreme Court’s recommendations for reform are a clarion call for Kenya’s Electoral Commission to establish a corporate governance framework that aligns with contemporary practices. This shows that Kenya’s highest court paid careful attention to the underlying causes of the persistent mismanagement of elections in the country.

The UK’s Electoral Commission, along with several of its counterparts across the Commonwealth, embraces the principles of good corporate governance. The electoral reforms proposed by Kenya’s Supreme Court resonate strongly with the core principles of the UK Electoral Commission’s corporate governance framework, as outlined below.

a. Independent Board of Commissioners

The leadership of the UK’s Commission comprises eleven election commissioners who together constitute an independent board that operates separately from the executive management. The Board is responsible for setting the Commission’s strategic direction, monitoring its performance, and ensuring compliance with statutory obligations.

The UK’s election Commissioners function as a collective entity and do not have individual authority other than that conferred by the Board for a specific purpose. The Commissioners have corporate responsibility for ensuring that the Commission fulfils its aims and objectives and for promoting the efficient and effective use of staff and other resources.

In situations where Commissioners have serious concerns about the Chairperson’s conduct or ability to carry out their role, and feel unable to raise this with the Chairperson, they may raise their concerns with the Independent Adviser to the Audit and Risk Committee, who assesses the information at his disposal, and decides whether or not to commission an independent investigation.

b. Separation of Powers

The sole responsibility of the UK’s Electoral Commission is to promote public confidence in the electoral process and ensure its integrity. The Commission does not register voters, run the polling stations, and count the votes; nor does it tally, verify, or even announce the results at elections. All administrative tasks concerning the actual conduct of elections are carried out by electoral administrators, including constituency returning officers, electoral registration and counting officers who are appointed by and work under local authorities.

To ensure that the Electoral Commission stays in its lane, UK legislation offers comprehensive guidance on the responsibilities it must fulfil while carrying out its central role of enhancing public confidence in the electoral process. These responsibilities encompass activities such as participating in election-related events to observe operational procedures and establishing performance benchmarks for all individuals engaged in the electoral process.

These provisions give practical expression to the principle of the separation of powers by limiting the Electoral Commission’s role to ensuring that electoral officers adhere to specified performance standards during the different stages of the electoral process.

Consequently, after each election, the UK Electoral Commission evaluates the performance of all electoral officers using predefined criteria and then shares their assessment with the respective officers, taking into account any feedback they offer, before publicising the assessments.

A notable aspect of UK electoral procedure is that once the individual polling station results are counted, verified, and consolidated at the constituency level, constituency returning officers, who would have undergone rigorous performance appraisals, are required to declare the constituency results which are then promptly communicated to the media for dissemination.

In contrast to the UK, the Electoral Commissions in Kenya and Zimbabwe are directly involved in the entire electoral process, starting from continuous voter registration, delimiting boundaries and wards, to regulating party candidate nominations, and all the way up to polling day operations.

In both countries there are no explicit provisions establishing the election commissioners as a Board – akin to a Board of Directors in the corporate world – with distinct and sole responsibility for policy and strategic guidance, separate from day-to-day administrative tasks. Furthermore, the responsibilities of the election commissioners seem to span the entire spectrum of policy direction and administrative functions.

The consequences of this failure to clearly delineate between policy and administrative functions are evident in the pervasive influence that Kenya’s election commissioners exercise on polling day under the powers of the National Tallying Centre, a creation of Kenyan law.

Kenya’s election history shows that it is when the ballot boxes and Presidential election returns reach the National Tallying Centre that things begin to fall apart. This is certainly evident in the factional violence that broke out at the National Tallying Centre moments before the announcement of the August 2022 Presidential election results.

It is difficult, therefore, to understand why Kenya’s Electoral Commission, its staff, or, for that matter, its election commissioners, need to convene at the National Tallying Centre to verify the constituency Presidential results. This essentially duplicates a process that constituency returning officers would have already completed.

Moreover, it remains unclear why Kenyan law does not permit constituency returning officers to promptly announce and share the constituency Presidential results with the media after verifying, tallying, and collating the polling station returns.

c. Selection of Election Commissioners

In the 2017 Presidential Election Petition Judgment Chief Justice Maraga expressed deep concern over the failures in leadership exhibited by the election commissioners. Chief Justice Koome echoed similar sentiments in the 2022 Presidential Election Judgment:

“The Chairperson did not make matters any better by maintaining a stoic silence, even as things appeared to be falling apart. All of this points to a serious malaise in the governance of an institution entrusted with the monumental task of nurturing our democracy.”

In modern practice, public entities offering vital services tend to seek the assistance of internationally renowned recruitment agencies to select suitable candidates for leadership roles. An example is the appointment of Mark Carney in 2013, a non-native individual who became the Governor of the Reserve Bank of England with the facilitation of Sapphire, a globally recognized firm of recruitment consultants.

An outstanding aspect of the UK’s procedures for appointing election commissioners is the engagement of independent recruitment consultants who possess critical expertise. In contrast, in Kenya and Zimbabwe, the selection panel that assesses the suitability of election commissioners comprises well-meaning, highly educated, and respected individuals with expertise in their fields but lacking specialized recruitment backgrounds.

A 2020 report by the UK’s Speakers Committee, outlining the process they followed in appointing the Chairperson of the Electoral Commission, makes for compelling reading as it illustrates the pivotal role that independent recruitment consultants play in identifying candidates possessing the best available talent for appointment as election commissioners on the UK’s Electoral Commission. Particularly impressive is the fact that, even after recruitment consultants have completed a rigorous assessment involving several phases, the Speaker’s Committee still requires the shortlisted candidates to undergo psychometric tests.

Embracing Electoral Reform

In the coming weeks and months the case for a thorough overhaul of Zimbabwe’s electoral system is likely to gather increasing momentum. Central to this initiative will be the reform of Zimbabwe’s Electoral Commission.

On June 6, 2023, President Mnangagwa penned an article – perhaps overlooked by many – expressing a clear commitment to electoral reform in the post-election period:

“I am pleased that on the legislative front, there is now greater convergence among political parties on the legal and institutional architecture for future elections, including the Delimitation Commission, which we had before, and bringing back the Registrar–General’s office on registration. All these proposed changes are for future elections and will release ZEC to focus on its core business, namely, managing our elections.”

President Mnangagwa, himself an ex-combatant whose contribution to Zimbabwe’s war of liberation is recorded in the annals of history, added:

“… we view our elections as an organic outcome from our liberation struggle, and as a key process for decolonising our governance system in order to consolidate our sovereignty.”

There can be no higher purpose for Zimbabweans across political beliefs to support a comprehensive electoral reform programme than the fact that their fallen heroes carried with them into battle the ideals of a free and independent Zimbabwe, dedicated to upholding the principle of ‘one person, one vote.’

The protagonists in the 2023 elections, ‘winners and losers’ alike, can play their part in leading Zimbabwe away from the treacherous path of an extended and debilitating post-election dispute, similar to what we are witnessing in Kenya today.

Zimbabwe can steal a march over Kenya and set an exemplary precedent in handing post-election disputes by establishing an independent review commission that will oversee the integration of the Kenyan Supreme Court’s recommendations on corporate governance into a broader electoral reform program.

At its core, the transformation of Zimbabwe’s Electoral Commission will entail the creation of a dedicated Board of Election Commissioners entrusted with the exclusive task of nurturing public confidence in the electoral process.

This will encompass multiple measures, including the establishment of performance benchmarks for individuals directly engaged in the daily management of electoral activities.

Additionally, the process will involve modernizing the selection procedure for election commissioners and introducing a clear demarcation between policy-making and administrative functions within the Electoral Commission, among other necessary modifications.

The responsibility for initiating dialogue on electoral reform does not rest solely on the shoulders of Zimbabwe’s political leaders.

Historical events, such as the electoral reform program now beginning to take shape in Zimbabwe, are not solely determined by the actions of individual leaders, but rather by the collective actions, choices, and influence of ordinary people.

James Devittie is an accredited mediator and a former Judge of the High Court of Zimbabwe.

The second instalment of the article will be published next week. It will look at why President Mnangagwa would benefit from seizing the initiative from SADC by establishing a coalition government, and appointing an independent electoral reform commission to oversee the transformation of the country’s electoral system in time for the 2028 general elections.