Final thoughts before the Zimbabwe election

This is the last contribution I will make before the elections and I struggled to reduce all my thoughts into one column, so if it is a bit lengthier than usual, do forgive me.

With so little time left and so much to say, let me narrow down my piece to two issues that are vitally important.

What do free and fair elections mean in Zimbabwe?

I have deliberately qualified what the term means in a Zimbabwean context not a global context. The reason for this is simple: this is the first post-independence election without former President Robert Mugabe, but more so, it is the first after a series of disputed elections to attract observers from across the world. Unlike other countries, our history informs the meaning of the term.

In Zimbabwe, it must necessarily go above the legality aspect or prescribed standards.

It is not pure procedural fairness and substantive fairness that we are concerned with, but ultimately, the perception of these elections.

Never before in our history has the appearance of a process been more important than the substance of the process.

It's a weird standard to judge an election by and I will be the first to admit this, but this is the standard that will apply to these elections.

The fairness will not be determined by a court of law (though in theory it can and should if the need arises), nor will it merely be about the outcome released by the Zimbabwe Electoral Change (Zec). It will be determined by the perception of a free and fair election.

If it is not free and fair, the outcome is immaterial and will, for all intents and purposes, be a nullity. Whose perception of fairness will we need to consider you may ask? Is it the fairness determined by us as citizens?

Sadly, it will be the perception of the global community whose observer teams will conclude that the election was free and fair.

Again, yes, this sounds very weird and I feel silly typing that out but that is the reality.

Whether this is right or wrong is a discussion for another day, but this is the lived reality we must deal with. This election will provide legitimacy for the incoming government.

The legitimacy will not be derived from the results themselves nor from any judicial proceedings that may be used, but rather the views of the global community which has in the past, slammed our elections for lack of fairness.

My legal mind tells me that the courts are the final arbiters should a dispute arise from the election, but logic tells me otherwise. I am not suggesting that the law be discarded, but I am simply suggesting that the legitimacy of the elections depends on a valid outcome, but more importantly in our context, the approval of the international community.

The approval of the process by the international community will determine the level of support and assistance the country will receive post the election.

Proponents and believers of the international law principle of sovereignty may argue and validly so, that the perception or approval of the international community should not be a factor in these elections, but like I said, this is not a normal election and any discussion of free and fair elections must be context-inclined and historically understood.

Zec: Fair referee or game changer?

One of the concerns I have had about the election is the use of the biometric voter registration system. It was hurriedly implemented without fully grasping its far-reaching consequences but also without adequate systems in place to ensure integrity of the information captured.

Zec has an extremely rich database of personal information that would make identity thieves and hackers retire just from the information held.

Currently, Zec holds a mine of personal data, which is probably the most current and extensive data collected in the country of a bulk of citizens to date.

No other entity in Zimbabwe has as much information as they do on citizens who registered — not even the Registrar-General's Office or the cellular service providers.

If you think about it, whoever gets the information held by Zec can completely recreate your identity and use it to do anything.

Countries that have similar information held by electoral bodies have very strict security protocols to ensure the security and integrity of the data held.

This brings to mind the American breach that is now referred to as the DNC Scandal, which some view as being responsible for President Donald Trump's electoral win.

As the story goes, emails and other personal information belonging to the Democratic National Committee were leaked after a major data breach that was pinned on the Russian group "Fancy Bear".

Although this took place in 2016, the American authorities are yet to fully understand how it was done and the extent to which it swayed the election.

I have questioned how prepared our own security teams are to handle cybercrimes, especially because the ZDF's website was hacked last year and they did not become aware of the hack until news spread on social media.

Zec confirmed that it suffered what it termed a "cloning" of its site but I doubt that is what happened and if they did their homework, they would come to the realisation that they suffered a data breach because information it held and perceived to be private was made public.

In my view, two breaches took place. Firstly, an unsecured copy of the voters' roll was made public and secondly, one of the contesting parties obtained cell-phone numbers and sent ward-based messages.

No other entity in Zimbabwe could supply that information apart from Zec. I am not suggesting they gave away the information, but I am of the view the data was from a Zec database.

How it was done was for Zec to find out. Zec's data was compromised and it was and still is the responsibility of Zec to determine the cause and the extent of the breach.

We can speculate on the mechanics of how it was done, but what is common cause now is that there was information that should have been secured by Zec that was compromised.

There is information that only Zec had and has access to, that was used for purposes not intended by the law.

As custodian of the information given to it, the commission had a duty to ensure the integrity of the information and that people's right to privacy was safeguarded although the availability of the roll itself created the potential for people to abuse the information on it.

The problem with a data breach is that a lot of the activities concerning the elections will be stored electronically — at some point.

If someone has access to the database held by Zec, they can do as they please with information contained there.

Even if one assumes that Zec did not suffer a data breach, Zanu-PF should have been compelled to disclose the source of the information it used to send text messages to people.

Apart from the breach of privacy and unsolicited communication angles this raises, this creates an unequal playing field for the other parties who were not able to access the information used.

There have been many demands made to Zec by various parties, some relate to the application, interpretation and adherence of the law while others relate to non-legal demands.

I believe there are legal aspects that Zec should have attended to but failed to address satisfactorily.

There are, however, aspects that are not necessarily legislated for, thus, leaving a gap in our electoral law and processes.

In those aspects, Zec has a discretion as an independent body, to determine the best course of action to address those areas where the law is seemingly silent.

That Zec has a discretion in these situations is not in dispute, the question is what factors it must consider in doing so.

Firstly, Zec cannot be coerced into doing anything because it must retain its independence and autonomy.

However, that does not mean that it cannot take on submissions from parties and individuals who feel aggrieved by an issue.

Zec should then consider what the harm done in acceding to a request would be. If the harm would be one considered unlawful or one that would be detrimental to the elections then Zec is entitled, in the absence of express legal provisions governing its conduct in that matter, to reject those requests.

Where there is negligible harm caused by acceding to a request however, then there is no reason why Zec cannot grant the requests.

Unfortunately, the current commission inherits a legacy associated with electoral fraud, lack of transparency and poorly managed elections.

With this in mind, Zec needs to be proactive in managing its image and shaping the electoral path for the country by taking steps to regain the trust of Zimbabweans.

Zec's mandate, therefore, could not only have been to follow the letter of the law and do nothing more, again, because of our history. Zec must be aware of the perceptions it has to change.

The commission finds itself in a position similar to a spouse or partner who has lost the trust of the other partner in the marriage or relationship. It must work hard to regain that trust.

It won't be easy and there may be things that seem farfetched to do just to win the trust back, but if it is lawful and hurts no one, then why not?

While Zec will not satisfy all parties in the election, it should manage the election in such a way that those who do not win are able to say: "While I do not like the result of the vote, I trust the result to be a legitimate reflection of the will of the people."

It is inevitable that some of us will dislike the results, but we should be able to accept that the process that brought about the result is fair.

In so doing, Zec would have won over many sceptical individuals who still associate it with the electoral fraud of previous elections. Risk management was therefore one of the implied tasks Zec had to work on.

At this stage however, what remains is the election itself and each of us has a duty to ensure that we have a peaceful election.

Let us vote for parties and individuals we know can bring about the Zimbabwe we want to see. If the elections are generally seen as free and fair at the end, let us all rally behind the elected and work collectively for a Zimbabwe we can all be proud of.

I hope and pray that we have leaders that see the value of diversity and can collaborate with others across the political lines for a better Zimbabwe.

After all, we are all bound by the same flag at the end of the day and we remain Zimbabweans before and after the elections . . . just saying!

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Paul Kaseke is a legal adviser, commentator, analyst and former law lecturer with the Wits Law School & Pearson Institute of Higher Education (formerly Midrand Graduate Institute). He serves as director and current group chair of AfriConsult Firm. He writes in his personal capacity. You can give him feedback via email: feedback@paulkasekesnr.com or follow him on twitter @paulkasekesnr