Zambians came to observe Zimbabwe elections with a axe to grind

There are no matters arising from the preliminary reports by the Commonwealth and the AU election observers, pending the release of their final reports in two or so months.

Otherwise, election observation mission reports are precisely that, namely, reports on what the relevant missions actually observed on the conduct of an election in question.

But not so for the Sadc Election Mission Preliminary Statement on Zimbabwe's 2023 harmonised general election. Led by former Zambian Vice President Nevers Mumba, appointed by Zambian President Hakainde Hichilema, who recently assumed the chairmanship of the Sadc Organ on Politics, Defence and Security.

Unlike its African Union and Commonwealth counterparts, the Mumba Mission clearly, intentionally and scandalously wrote its report on the basis of what it heard, and not what it observed.

Rather than making news about the election it ostensibly observed, the news is on the Sadc Election Observation for coming to Zimbabwe with an axe to grind, wielding it recklessly and shamelessly.

It would be irresponsible to let the preliminary report of the Sadc Election Observation Mission go scot-free, unchallenged.

The Mumba report is premised on this far reaching conclusion, which it is not competent to make:

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.

Writing under the rubric, "Constitutional and Legal Framework for the Elections," Mumba and his colleagues make sweeping and opinionated statements and conclusions that are all based not on the direct observation of the election by the Mission but on hearsay with not a single thread of even desktop evidence.

The sweeping statements and conclusions include an array of gratuitous comments based on hearsay about the voters roll; freedom of assembly in general and the Maintenance of Peace and Order Act (MOPA); freedom of expression in relation to the Criminal Law (Codification and Reform) Act; the nomination of candidates; participation of women as candidates; alleged intimidation of voters; postal voting controversy; and coverage of the election by the state media.

In the result, the main thrust of the report is pure and naked hearsay. In this connection, the report's treatment of two key issues is telling: one is the delimitation of constituencies and the other is on the so-called Patriotic Act.

Regarding the so-called Patriotic Act, the report makes the following conclusion based on untested hearsay submissions:

The Mission noted that the Patriot Act is incompatible with the spirit of section 61(1) of the Constitution, and paragraph 4.1.2 of the SADC Principles and Guidelines Governing Democratic Elections which requires Member States to uphold, amongst others, the freedom of expression.

This is utterly shocking.

What jurisdiction, power and legal competence do Nevers Mumba and his colleagues in the Sadc Election Observation Mission on the Zimbabwean 2023 harmonised general election have to make such a judicial pronouncement?

The pronouncement is manifest and gross interference with the rule of law in Zimbabwe under which such judicial findings are made by competent courts of law and, even worse, the pronouncement is an unacceptable violation of Zimbabwe's sovereignty.

Then there's the report's treatment of the delimitation of constituencies, about which it says:

"The mission WAS INFORMED that the delimitation exercise that was conducted in 2022 by the ZEC was marred with controversy".

Without saying who informed it, the Sadc Observation Mission preliminary report makes the following scandalous statements and partisan conclusions on Zimbabwe's delimitation exercise conducted by the Zimbabwe Electoral Commission in 202, which it is not entitled to make – as it lacks the jurisdiction, authority and competence to do so – and which statements and conclusions demonstrate beyond reasonable doubt that its preliminary report is heavily opinionated hearsay that smacks of a malicious and predetermined hatchet job:

"(i) In its Delimitation Report of 2022, the ZEC rightly states that, "the Constitution recognisesthe 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% 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% 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 voters per constituency is not consistent with the provision of section 161(6) of the newConstitution 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% 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.
(iv) 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.

(v)  In the new Constitution, and in the context of section 161(6), the maximum deviation is 20% 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."

There are three things to highlight about what Mumba and his team say regarding the delimitation of constituencies.

Firstly, everything they say is very familiar to Zimbabweans because the delimitation issue was widely, hotly and robustly debated.

More specifically, the words used in the Mumba narrative about the delimitation report are familiar words that were used during the debate. It is disappointing that the familiar words have found their way, verbatim, into the Sadc Election Observation preliminary report. This alone is sad, and the less said about it, the better for everyone concerned.

Secondly, ZEC's delimitation exercise was challenged at the High Court of Zimbabwe and in the country's apex court, the Constitutional Court. The views that the Sadc Election Observation Mission regurgitates as its own, when in fact they're not, were argued in Zimbabwe's courts, but no pronouncement or finding of the kind that the Mumba team goes to town about was made by any court of the land.

What makes this even more egregious is the following statement in the Sadc Election Observer Mission's report:

In view of their significance in the event of legal challenges in the context of the electoral process, some stakeholders expressed the view that the judiciary is compromised by the Government. A key justification for this perception was information received from these stakeholders that the judiciary recently received large financial and material incentives which the stakeholders viewed as an attempt by the Government to buy the loyalty and allegiance of the judiciary.

So, the Sadc Election Observation Mission on the 2023 harmonised general election in Zimbabwe "received information from…stakeholders that the judiciary recently received large financial and material incentives which the stakeholders viewed as an attempt by the Government to buy the loyalty and allegiance of the judiciary".

Why is the Sadc Election Observation Mission disrespecting Zimbabwe's judiciary in this manner?

The is outrageous, and for it to find expression in this report is shameless and unacceptable.

In the interest of fairness, the Sadc Mission must be required by Sadc to share this information with everyone, particularly the Government of Zimbabwe which represents the Zimbabwean State, a member of Sadc.

As already pointed out, the Sadc Observer Mission has no jurisdiction or competence to make any judicial pronouncements on Zimbabwean elections, not least because it is not a judicial inquiry; it is just and only an observation mission. This needs to be rectified by the Mission in its final report. That's why it has been both important and necessary to engage the preliminary report at this stage.

Thirdly, and last but not least, it is important to recall the Mission's conclusion that is making news everywhere in order to show that it is politically opportunistic, and arguably is self-evident malice aforethought.

The Sadc Election Observation Mission's preliminary report has this running thread that ties everything in the report together, and which is effectively the essence of the report's conclusion:

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.

Is this conclusion in any way linked to or an outcome of the observations that the preliminary report lists as the observations that were actually made by the Sadc Mission?

The best way to unpack the question is by looking at the full list of the observations that the Mission says it made, and they are the following:

"3. OBSERVATIONS ON ELECTION DAYS (23-24 AUGUST 2023)

On the Election Days, the SADC Electoral Observation Mission observed the voting process in 10 Provinces of the Republic of Zimbabwe. The deployed observer teams covered 172 polling stations in their respective areas. The political contestants have continued to call for peace during this election period and after. The SEOM observed the following critical aspects at the 172 polling stations that we visited:

(a) The environment at the polling stations was relatively calm and peaceful.

(b) A number of voters expressed concern due to a lack of, or late arrival of ballot papers and poor administration at some polling stations. However, voters remained patient to exercise their constitutional right to vote.

(c) Professional and attentive police presence enhanced the overall peace and secure environment in all the polling stations observed.
(d) 64% of the voting stations observed opened on time, 36% did not open on time for the 07:00am stipulated opening time. Some polling stations opened more than 12 hours after the stipulated time. The reason provided by ZEC for this unprecedented development was the unavailability of ballot papers, particularly for the local authority elections, and also due to previous litigation. This challenge was, however specific to Harare and Bulawayo Provinces. Due to the delays, some voters left without casting their votes, while others opted to remain in the lengthy queues throughout the day and night. By 06:00am on 24 August 2023, some voters in these two provinces had still not voted. Consequently, these delays also had a knock-on effect as they dissuaded voters from voting in the first place. Against this observation we further note as follows:
i. Section 52(1) of the Electoral Act provides that for any election, the ZEC shall ensure that every constituency elections officer is provided with polling booths or voting compartments and ballot boxes, and shall provide papers, including ballot papers.

ii. Prior to election day, ZEC had assured our Mission and other stakeholders, that all necessary voting materials, including ballot papers, were available and ready for use before election day. This communication was made in the context of section 52A(2) of the Electoral Act which requires ZEC to provide information on the number of ballot papers and publication of details regarding them. On the basis of these two considerations, the subsequent information from ZEC that they did not have adequate ballot papers has the unfortunate effect of creating doubts about the credibility of this electoral process.

(e) The voters roll was unavailable at 1% of the polling stations observed, and was therefore not displayed outside the polling stations for the convenience of the voters and verification by party/candidates agents.

(f) During the voting period, and at 26% of the polling stations observed, not all voters who turned out could vote. The reasons advanced for this included:

i. Voters were identified, but the names were not found on the voters' roll;

ii. It was not possible to establish the voter's identity;
iii. Voters were at the wrong polling station; and
iv. Voters did not have a national identity card or passport, or due to the absence of an official witness confirming an elector's identity.
(g) 8% of the polling stations observed were not accessible to voters living with disabilities.

(h) At 50% of the polling stations, voters living with disabilities, the elderly, and pregnant women were not given priority to vote.

(i) In 3% of polling stations observed, indelible ink was not checked on the voters before allowing them to cast their vote.

(j) At 97% of the polling stations observed, voting was free from irregularities.

(k) Voting proceeded in an orderly manner at 95% of the polling stations observed.

(l) Ballot boxes did not remain locked and/or sealed at 2% of the polling stations.

(m) As a result of the excessive delays in the opening of polling stations in Harare and Bulawayo provinces, at least 36% of the voting stations observed did not close at the scheduled closing time of 1900hrs, while some had not even opened by that time. It was announced that voting would be extended to proceed into 24 August 2023 to compensate for the late opening.

(n) In previous stakeholder consultations, a shadowy organisation referred to as Forever Associates Zimbabwe was accused of conducting a country-wide exercise of electoral intimidation. Our observers confirmed the existence of this group as its officials or agents were easily identifiable at some polling stations as they were dressed in regalia emblazoned with the FAZ name and were accredited local observers. These, and other unidentified persons who were not polling officials were also observed taking down the names of voters before they cast their votes. In some areas, voters were intimidated by actions of these individuals.

(o) The Mission observed the closing and vote counting processes. A proper analysis of these two processes shall be provided as part of the final SEOM Report."

CONCLUSION
Three points to conclude:

Firstly, it is notable that the actual observations made by the Sadc Election Observation Mission are given as a skeletal laundry list with little if any analysis. Yet the observations are at the core of how the actual polling or election was conducted on polling day.

Secondly, there's no connection between the preliminary report's running theme that "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".

Surely, to sustain the theme, it has to be connected with the actual observations made by the Mission. But the preliminary report makes no connection, not least because the connection is contrived, based on hearsay and therefore has no factual foundation.

Thirdly, one of the observations that proves malice in the preliminary report is the following [number "m" on the laundry list of observations]:

As a result of the excessive delays in the opening of polling stations in Harare and Bulawayo provinces, at least 36% of the voting stations observed did not close at the scheduled closing time of 1900hrs, while some had not even opened by that time. It was announced that voting would be extended to proceed into 24 August 2023 to compensate for the late opening.

It is an unfortunate falsehood that there is any polling station that had not opened by 1900hrs on polling day, 23 August 2023.  It's a shame that such a falsehood found itself in a report of this stature and implication. Otherwise, if the report was based on good faith, the name and location of polling stations that had not opened by 1900hrs on polling day should have been specified for purposes of verification and rectification.

Fourthly, right upfront the preliminary report says:

The Mission was informed that a further proclamation was issued rendering 24 August 2023 as a polling day in view of the delays experienced at certain polling stations. Furthermore, President Mnangagwa also proclaimed 2 October 2023 for the run-off election to the office of president if such a poll becomes necessary.

Two points about this. One is that the mind boggles at why the Mission had to be "informed" about this, and why the Mission did not get a copy of the proclamation for itself. Was this out of laziness or what?

The other point is why does the preliminary report fail to see and understand that "the further proclamation" was the specific solution to the litany of what the Mission lists in its preliminary report as its observations regarding the delayed opening of polling stations on polling day and the shortage of ballot papers and related issues?

An impression, a false one at that, is created to the effect that the litany of observations of problems that beset polling stations that opened late or opened without some or all ballot papers for the three elections were left unattended to.

If truth be told, the Sadc Election Observation Mission's preliminary report leaves a distinct and disturbing impression that the Mission had a sinister and a not so hidden mission against the people of Zimbabwe and the Republic of Zimbabwe, abi nitio.

That's unfortunate because the impression is palpable!