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22 April 2008
By Jameson Timba (MP)
ZIMBABWEANS have for the past 19 days been kept guessing as to who their President is. My cell phone rings almost every two minutes with members of my constituency wanting to find out when the results of the Presidential elections will be announced.
Those in business are saying they are holding onto major decisions because of the uncertainty created by the delayed results. Those in employment say they are having concentration problems at work and hence affecting their productivity.
Those unemployed and without food are hoping for a change in their fortunes if the candidate they voted for is declared the winner now and not tomorrow. I have no answers for my constituency. This is not healthy for either the nation or individuals. It is not healthy for me either. It is nerve wracking and frustrating to say the least.
The Zimbabwe Electoral Commission (ZEC) is a public body led by a learned fellow, and it is expected in the discharge of its duties to act reasonably in matters that affect the rights of others and in particular the rights of over 14 million Zimbabweans here and in the Diaspora.
Zimbabweans have a right to know the results of the presidential election now and not when it suits ZEC and ZANU-PF. The original reason given by ZEC for the delay in releasing the results was that they were collating and verifying the same. This reason was not believed by anyone including 14 year olds who are yet to qualify to vote. ZEC was dealing with 210 forms or data sets compiled and collated at the constituency centres countrywide.
Most of the data on these forms had by March 30, 2008 been agreed to by ZEC constituency and provincial election officers and all contesting candidates directly or through agents and signed for. The addition of total votes obtained by each of the four presidential candidates should not have then taken more than three hours with the help of Bill Gates's Microsoft excel.
At most, by Tuesday April 1 the results should have been announced. Alas! It wasn't to be. When the original reason for delaying the results could no longer be sustained, ZEC came up with another one. This time they said they had received complaints from ZANU-PF that they had been robbed in 21 constituencies and therefore they wanted a recount.
In Patrick Chinamasa's words, ZEC had rejected their request serve in 5 constituencies in which he alleges their complaint had been submitted within 48 hours of the announcement of the results as provided for by the law. This meant in all other constituencies ZANU-PF was expected if it so wished to file petitions in the Electoral court within 14 days of the Poll. Alas that was not to be. ZEC has gone ahead to publish a notice that they will do recounts in the same constituencies that ZANU-PF had raised complaints notwithstanding that this was done out of time.
This time ZEC's actions, in my view and that of any reasonable person, are implying that it can cover up for ZANU-PF's ineptitude by using its power to conduct recounts whether or not the participating candidates had lodged complaints on time. If that is the case, who wouldn't want to be ZANU-PF if a whole constitutional body can on paper and in practice appear to be acting for you.
The power given by the legislature to ZEC to conduct recounts must be based on a reasonable suspicion that there were miscounts or votes were stolen. The legislature in its wisdom never intended that this power be used to favour one group of people. The majority of the people that I have spoken to now believe rightly or wrongly that ZEC is biased in favour of ZANU-PF.
Bias does not necessarily have to be actual. Sometimes it is the sum total of the perceptions of those affected by the actions of a public officer or body. ZEC is therefore not doing itself any good in the eyes of Zimbabweans and the international community. The question on the minds of most Zimbabweans and the international community is that: Is there any reasonable suspicion that votes were stolen from (President) Robert Mugabe as suggested by Chinamasa and buttressed by ZEC's notice for recounts?
Never mind President Thabo Mbeki's day-dreaming that HIV does not cause AIDS and that there is no crisis in Zimbabwe when he is looking it in the eye. He (President Mbeki) seems not to see nor hear any evil when it comes to (President) Mugabe and ZANU-PF. No wonder he lost in Polokwane because he appears to always be fighting with reality and no one takes him seriously anymore.
In addition, both him and (President) Mugabe believe that their respective parties will crumble if they are not on their helm whilst the opposite is true. In addition, the two also have something else in common. Mbeki is determined to ensure that Jacob Zuma does not become South Africa's President while (President) Mugabe vowed that Morgan Tsvangirai will never be President of Zimbabwe irrespective of what the people of the two countries think.
Zimbabwe has an Electoral Commission (ZEC) still appointed entirely by (President) Mugabe, from a shortlist picked predominantly by his party, which until March 28 2008 was the majority party in parliament. Zimbabwe Police have started arresting ZEC election officials countrywide, alleging they fraudulently deprived (President) Mugabe of votes during vote counting or compiling in the recent harmonised elections. If so, they robbed (President) Mugabe in front of police and numerous other witnesses - without it being detected for a week.
Whatever red herrings people may try to draw now across the trail, all the counting was done in front of numerous witnesses including the police and ZANU-PF's polling agents at every polling station and completed by lunchtime on Sunday 30th March 2008. And over the next couple of days, all the compiling was done in front of numerous witnesses including the police and ZANU-PF's polling agents at every polling station, in every ward and every constituency and the result there in each of the four elections was recorded and put up outside.
No complaints were publicly made, until last Friday when ZANU-Pf allegedly had to explain to (President) Mugabe -on the basis ostensibly and allegedly only of their own polling agents returns, as the official ones are still officially secret - why he lost, and even did so much worse than his party candidates in many areas.(vakarovera bhora musango). In terms of the results published by ZEC at polling stations and collated by MDC, Tsvangirai won the highest number of votes in 123 constituencies and ZANU-PF President Robert Mugabe in 87 constituencies. That is a 58 percent win of the 210 constituencies against (President) Mugabe's 41 percent.
What it means is that based on constituency results and the first past the post system, (President) Mugabe was also defeated by his own party, which won in 97 constituencies, while Tsvangirai defeated (President) Mugabe, Simba Makoni, the other presidential candidate, ZANU-PF and MDC parliamentary candidates in some areas.
The counting was done at each polling station. Present at every count were 11 ZEC officials, accredited observers (all approved by a government minister first) agents for each candidate (with a ZANU-PF agent, inside and out) - and police - as (President) Mugabe had personally and single handedly changed the electoral law just before the election to put his police inside the polling stations. I say "his" police since the Commissioner General publicly said he can only salute (President) Mugabe and not anyone else the people of Zimbabwe in their sovereign wisdom would have chosen as their president.
Other agents, observers, the public etc watched from a short - distance outside. Nobody was allowed in or out during the count. Then six copies were made of every result, from each of the four ballot boxes in turn (presidential, senate, house of assembly, local authority). They were signed not just by ZEC officials, but by party agents - including ZANU-PF.
One signed copy of each return was then put up publicly outside. All 5 others were sent on to the ward centre, then the constituency centre, then the command centre. How could any theft from him have happened so publicly, and been undetected, unreported for so long?
Individual ZEC officials are being arrested by police from around the country for having unlawfully robbed (President) Mugabe of votes, before any official result is released. Everything was done at every level with many other people watching - the counting of the ballot papers and the collating. For any theft or fraud to have occurred at any stage, many other people would have needed to be accomplices, including ZANU-PF party agents and police.
Why have they not all been arrested? Every result was recorded in multiple copies, and signed by ZANU-PF agents. Every polling station result was put up publicly. Five copies were kept for ZEC. Can anyone hope to defraud (President) Mugabe in quintuplicate?
The number of copies made of every Constituency return is unknown, but can be easily discovered. One was put up outside for the public for each election. Winners were announced. The time when all this happened at the constituency level can also be proved. Most, if not all, were finished by Sunday or Monday.
Long after each local announcement of the Parliamentary seats, ZEC also announced the results at its National Command Centre. It said its delay was while it checked each one. So they checked the parliamentary results and announced the winners. So what has happened now? ZEC is well staffed and has computers.
If a local official cheated or perhaps made a mistake in entering or adding any returns - undetected by all those others watching him-ZEC would have discovered this before it made its own public announcement for that seat. Yet it is ZEC's public announcements that are being disputed now by ZANU-PF and ZEC itself. If there was any fraud or error in any tally by some official, it was an error ZEC also made; yet no-one from its National Command Centre has been charged.
While every constituency result has been broadcast, all ZEC presidential results remain secret. Like ZANU-PF, the police should not have any official records of that vote yet. Can they explain on what evidence therefore are they now arresting and dragging before the courts any ZEC official for theft of votes or defrauding (President) Mugabe? Are they too relying on the results reported by ZANU-PFs own agents? Has ZEC laid a complaint against some officials, rather than merely rectifying any errors? Or are these arrests stage managed to justify the so called recounts?
Being such a public process, there surely can be no reasonable suspicion that (President) Mugabe has been robbed by anyone. Why now open the ballot boxes? I speak for several members of my constituency and I believe several other Zimbabweans who feel that there seems to be no credible grounds to do so, but there is every reason to fear that the real reason for doing this is to suddenly "find" more votes for (President) Mugabe inside, in boxes kept guarded only by his officials and police, sealed with only their seals. They believe that this is being done to create a run-off, which people believe does not exist. There is also a genuine fear by members of my constituency and several other people that the other reason is to find more "votes" for ZANU-PF in order to rob MDC of its parliamentary majority.
Others believe that the delays by ZEC are designed to buy time for ZANU-PF to regroup before a run-off and close Zimbabwe's democratic space by intimidating and beating up our fathers, mothers and grandmothers in the countryside to create an unfair advantage over MDC. This they believe is being done to give ZANU-PF a psychological advantage in an unlikely presidential run-off, for it will be difficult for them to campaign with a double loss in presidential and parliamentary elections. What do you tell the electorate that we lost in the parliamentary and first round of the presidential elections so please vote for our president who will then govern with a minority in parliament. Give us a break and stop insulting the intelligence of Zimbabweans. Muri kunyangira yaona.
Before ZEC does its recounts, (and I pray that no reasonable court under the sun would allow them) it must inform every accredited observer, and let them also attend. It must show these observers all the polling station returns, and let them take copies of that, and explain why it thinks there are any grounds to reopen and recount, when ZANU-PF was present at the time and made no complaint for so long.
In addition, it must tell observers that notwithstanding Chinamasa's public pronouncement that a recount in the presidential election to recover about 4 900 votes will not change the fact that Tsvangirai defeated President Mugabe. Or it must tell observers it received complaints within the allowed time of 48 hours, but ignored them and announced the results anyway; and explain why neither it nor ZANU-PF told observers that they had any complaints. Regardless of any recount, every winner announced at the constituency centre remains the winner unless and until that result is set aside by the Electoral Court after petition and trial. ZEC cannot change it by setting aside its own declaration.
A recount in itself cannot change it either. Section 66 (4) of the Electoral Act Chap 2:13 specifies that.
66 Determination and declaration of result of poll
(4) A declaration by the constituency elections officer or the Chief Elections Officer under this section shall be final, subject to reversal on petition to the Electoral Court that such declaration be set aside or to the proceedings relating to that election being declared void under subsection (1) of section fifty.
If the intention of ZEC in conducting the recounts is to change the result of the parliamentary results and immediately declare new MPs different from what they have already declared as implied in their notice then that in my view will be unlawful. They can only change the winner by filing a petition in the electoral court with the affected candidate and party having a right to oppose it. No reasonable court anywhere in the world would accept that. Our courts would have failed in their responsibility if they allow ZEC to change people's elected representatives any time and as they wish without due process. That due process entails conducing recounts in terms of the law and the law is specific in that regard.
Section 67 A of the electoral act states that
67A Recounting of votes
(1) Within forty-eight hours after a constituency elections officer has declared a candidate to be duly elected in terms of section 66(1), any political party or candidate that contested the election in the ward or constituency concerned may request the Commission to conduct a recount of votes in one or more of the polling stations in the constituency.
(2) A request in terms of subsection (1) shall:
(a) be in writing, signed by an appropriate representative of the political party or candidate making the request; and
(b) state specifically the number of votes believed to have been miscounted and, if possible, how the miscount may have occurred; and
(c) state how the results of the election have been affected by the alleged miscount.
(3) On receipt of a request in terms of subsection (1) the Commission shall order a recount of votes in the polling stations concerned if the Commission considers there are reasonable grounds for believing that the alleged miscount of the votes occurred and that, if it did occur, it would have affected the result of the election.
(4) The Commission may on its own initiative order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election.
(5)Where the Commission orders a recount of votes in terms of this section, the Commission shall specify:
(a) the polling stations whose votes are to be recounted and, where appropriate, the votes that are to be recounted; and
(b) the date on which, and the place and time at which the recount is to take place; and
(c) the procedure to be adopted for the recount; and shall take all necessary steps to inform accredited observers and all political parties and candidates that contested the election of its decision and of the date, time and place of the recount.
(6) Accredited observers and representatives of candidates and political parties that contested the election shall be entitled to be present at any recount ordered in terms of this section.
(7) The Commission's decision on whether or not to order a recount and, if it orders one, the extent of the recount, shall not be subject to appeal.
In the case of the current recounts, ZEC had initially indicated that they were recounting the votes based on the complaints made by Zanu-Pf in terms of Section 67 A (1) of the Electoral Act. This is notwithstanding the public acknowledgement by ZANU-PF through Chinamasa that they were late in submitting their complaints on the majority of the constituencies i.e. 16 out of 21.Meaning they had submitted their complaints outside the 48 hrs prescribed by section 67 A (1) above.
MDC through its lawyer Selby Hwacha challenged this in court and ZEC;s lawyer George Chikumbirike consented to an order before Justice Guvava at 8.30pm on Friday 11, April 2008 that the recounts were unlawful and therefore will not proceed. Before the ink on this consent order had dried ZEC published a notice in the Sunday mail and the Standard of 13 April 2008 that they were proceeding with recounts on the 19th April,2008 in the same constituencies complained about by Zanu-PF out of time because they were empowered to do so by law whether or not they have received a complaint from a candidate.
Yes they are empowered to do so but only under Section 67 A (4) of the Electoral Act. In their notices published widely in both independent and so called state newspapers they do not say that they are proceeding in terms of Section 67 A (4) of the Electoral Act. They instead cite the general empowering constitutional clause 64 (1) (d) that created them and Section 67 A of the Electoral Act. That is not good enough. Unless their notice specifies that they are conducting the recounts in terms of the cited relevant section of the Electoral Act 67 A (4) then these recounts are in my view blatantly unlawful.
It would not be unreasonable for anyone including a first year law student to conclude that they are proceeding to conduct recounts in defiance of a High court order. No reasonable court in my view would not conclude that the recounts that they intend to proceed with are the same recounts that Zanu-PF asked for out of time. No reasonable court in my view will also not arrive at the conclusion that the notice issued by the Justice Chiweshe led Commission is defective for want of correctly citing the empowering clause in the electoral act to make its actions lawful.
In addition, it is my view that by attempting to proceed with the same recounts purportedly under Section 67 A of the Electoral Act, ZEC's actions have the effect of frustrating a High court order and that should not escape the mind of an A Level student intending to study law after the delayed results of ZIMSEC in August this year. Whilst the decisions of ZEC in recounts are not subject to appeal, they are reviewable. Hon Justice Uchena made this point clear in his recent judgement on the release of results that the courts will intervene if ZEC strays from the law. They have in my view just done that. I know that justice particularly in our country is sometimes blind in matters that affect the political power of ZANU-PF but I don't believe that it is stupid. It shouldn't be.
Jameson Timba is the newly elected MP for Mt Pleasant constituency in Harare.
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