We don’t have powers to call for by-lections: Chigumba. . . Zimbabwe Electoral Commission only plays persuasive role

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THE Zimbabwe Electoral Commission (Zec) has been criticised by stakeholders for the way it has been conducting elections amid allegations that the electoral body is subservient to the ruling Zanu PF party.

The Daily News on Sunday Senior Staff Writer Mugove Tafirenyika  last week engaged Zec chairperson Justice Priscilla Chigumba on these and other issues during the electoral body’s media training workshop on election reporting in Darwendale.

Below are excerpts of the interview.

Q: You intended to hold by-elections in December to fill local government and parliamentary seats that are vacant, but the executive ruled that they would not be held. Can it be concluded that you are not as independent as you ought to be?

A: We need to understand the role of Zec and I hope your deliberations in this workshop will assist you to understand its role.

The role of Zec is persuasive. When I say persuasive, from the Constitution to the Electoral Act and to the regulations, our role is merely to make recommendations to the executive.

There is nowhere in the constitution, the Electoral Act and our regulations where we are given a mandate, firstly to make regulations on our behalf, secondly to make law.

We make recommendations to the government through the line ministry, which is the ministry of Justice. That is the first thing.

We are a commission that administers the electoral law which emanates from Parliament. If our stakeholders are unhappy with our current mandate, I fully encourage them to button hole those who are in Parliament to change our mandate.

In terms of our current mandate, basically what we do is to recommend to the executive that we believe that by such and such a date, in terms of administrative processes, we will be ready to conduct by-elections.

What I said before the parliamentary committee for Justice is that we, at Zec, have a plan that says by December 5 we anticipate that we are going to hold by-elections and that all the administrative issues that must be in place, will be in place.

Q: What are the administrative issues?

A: I mean that we want to hold a Covid-19-compliant election, which means purchasing PPE for everybody inside the polling station, purchasing thermometers and masks, finding ways of sanitising ball point pens that voters use.

This date was set in the context of questions that had been put to me to say are you anticipating holding by-elections before the end of the year.

Yes, our provisional date is December 5 which we have referred to his Excellency, the president.

When you look at the Constitution and the Electoral Act, you find that only His Excellency, the president, can announce by-election dates and he does that by publishing a notice in the Government Gazette.

He only does that in consultation with us. We do not have a mandate where we can stand up and say a by-election will be held tomorrow. There is a piece of paper that is signed by the president to say he has consulted us and other stakeholders and that he, in his considered view, agrees that they can be held on such and such a date.

Having put that date in the public arena, made our recommendations to the president and he took them into account, consulted the ministry of Health. I was not privy to the discussion  they had, but I would like to assume that the president, using his executive powers and in his wisdom, saw it fit to say that by-elections cannot and should not be held  during the course of this year.

It is my considered view that this is not a reflection of lack of independence on the part of Zec. If by independence you mean Zec should willy-nilly declare the dates of by-elections, which it has no power to do, then I would say your question is premised on a lack of understanding of our role.

Q: Can you then explain the role Zec plays?

A: My role starts and ends with making recommendations, I did that, they were taken into consideration. I have no further role to call upon the executive to ask why they disregarded my recommendations.

Q: Under such circumstances can you, therefore, say you are sufficiently independent to run credible elections?

A: We need to be clear by what we mean by independence. Zec is purely an administrative body in terms of the constitution. It is not a policy making body.

We went to South Africa on a working visit after 2018. We studied their constitution and Electoral Act, we studied the Kenyan Electoral Act and we realised the wording of the electoral commissions is different.

In South Africa, the independent electoral commission has power to make its own regulations, introduce legislation into Parliament through its line ministry, that is Home Affairs.

Now you find people here saying Zec is not independent because it reports to the ministry of Justice, but there is no electoral commission that goes to Parliament by any means other than through the line ministry.

An electoral commission is a stranger in Parliament. Only people who sit in Parliament can introduce legislation, so it has to be, in our case, the Justice minister because he is an MP.

Going to Parliament through a line ministry is not an indication of lack of independence. If you say we should be empowered to make our own rules and regulations, we have to accept that currently we don’t have power to do that.

I expect Parliament to give me those powers and I will use them. Don’t blame me for not doing things that I have no power to do. I am doing everything within my power.

Q: After your recommendation to hold by-elections in December was disregarded, did you propose another date given that in line with the Electoral Act, the vacancies must be filled?

A: Firstly our recommendations were that if it is the view of other stakeholders that we cannot hold by-elections could we at least be allowed to be designated as an essential service with regards to other electoral activities which are not by-elections.

That recommendation was followed. All along since the Covid-19 regulations were put in place we were not designated an essential service.

We were then subsequently designated with regards to all other electoral activities other than by-elections, which is why you find that voter registration is now going on and we are having this workshop.

I should also point out that all these things we are discussing about by-elections are sub judice because we have stakeholders who have taken these issues before the Electoral Court so that it can make a pronouncement, so it would be inappropriate for me to discuss in intricate detail matters which the court is currently seized with.

However, the only thing I want to say is that our Constitution recognises that the right to vote is not absolute and that it is subject to limitations in a democratic society.

In fact, we have a constitutional court judgement which was brought about by people in the diaspora who argued that denying them the right to vote was unconstitutional.

The Con-Court pronounced itself to say the restrictions on Zimbabweans in the diaspora to vote emanated from the residence requirement which itself was a necessity because the 2013 constitution made our voting system polling station specific.

What the Con-Court said is that if you are registered to vote in Mutare and you are in Chivhu for a funeral on the voting day you will not be able to vote.

Equally, if someone is in Botswana they will not be able to vote because they don’t have a polling station in Zimbabwe.

They said the restriction on the right to vote based on the residence requirement is not unconstitutional because it affects Zimbabweans who will be here on election day.

The question which the courts must answer is whether the suspension of a by-election for reasons of a pandemic is an appropriate restriction on the right to vote in a democratic society.

I will allow the Electoral Court to answer that question and we are also waiting to stand guided by the court. I am not the Electoral Court and I cannot comment and I will not comment further.

Q: As an electoral body, you have an obligation to uphold the Constitution through promoting the right to vote. What are you doing in this regard seeing that the right is being violated?

A: I am aware of that obligation but like I said, the right to vote is not absolute, it is not like the right to life.

Like I said earlier, we wait for the court to decide whether suspension of elections owing to a pandemic is a violation of the right to vote or otherwise.

Q:  When an election has been held, in terms of the Electoral Act, results are pasted outside the polling station, meaning they are in the public domain yet we have seen people being arrested for announcing them. How does it become an offence?

A: Whoever said that it is an offence did not say the truth. When results are pasted outside the polling station, it is a notice to the whole world.

Title deeds to your house are a notice to the world that you are the owner of the house.

However, suppose you have bought your house and you sign papers to have it transferred into your name, but in-between the signing of the papers and the title deed actually being put in your name; if you tell someone that you are the owner of the house; it is wrong even though the process has started. You can only wave the title deeds in the face of the whole world when your name has been put on the title deeds.

Likewise, when we put the results on the polling station you can announce that so and so has won at that polling station, but you cannot announce that he has won in the ward when we have not verified all polling stations.

Q: There have been reports that some parties were transferring voters, registering them in constituencies where by-elections are supposed to be held to improve their chances. What are you doing to curb that?

A: We do not meddle in politics. What we do is when someone comes to a voter registration centre, we just ask for the basic minimum requirements to say are you 18 years or above; do you have proof of residence.

If they say they want to transfer from this polling station to the other because they are now staying there, we transfer them.

If they come two weeks later saying that they have been transferred again to Chirundu, for example, we will transfer them again because our role is purely administrative.

Whether they will help another party to win by elections or not does not concern us. We do not look at the merits or demerits of the case or listen to media reports that there are people who want to rig. It is up to you as stakeholders to go to court if you suspect that there is that intention.

Q: You have been a subject of criticism, including attacks on your person. How do you describe your relationship with stakeholders, including political players?

A: A lot of things have been said about me in my personal capacity. I even have relatives who do not like me who think I am too clever, but those opinions don’t affect how I do my work.

They are opinions and I accept them as such. When it comes to my personal life, all of us have people who like us and some who don’t.

Some are not liked by their husbands and wives, but they are staying together, regardless. 

However, when we are doing work, we do our work.

It does not matter that there are people who don’t like us.

When it comes to the current relationship with stakeholders, I don’t want to say political players because they are just one aspect of stakeholders — I have excellent relationships with stakeholders.

We are in good books with our suppliers, the Treasury where we get money. When it comes to political parties, I have an open door policy.

Those who want to engage me can do so, those who want to engage social media and hope it reaches my ear can do that and hope it reaches my ear, but I can tell you that it is not going to affect anything in the conduct of my duties.

Q: After the 2018 elections, various observers made recommendations for future elections. Going into the 2023 elections, have you taken them on board?

A: We made recommendations having studied recommendations from all electoral observer missions.

We decided to take recommendations from domestic, regional, continental and international observer missions.

We respect all our observers. We made the best recommendations we could. We particularly made the best from local observers.

I like them because they are the ones who know exactly how we live here. I took the recommendations seriously, not that I don’t respect others.

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