CHAPTER 6: SADC Principles and Guidelines Governing Democratic Elections and Election Observation Missions: An evaluation
Zimbabwe Election Support C
SADC Principles and Guidelines Governing Democratic Elections and Election Observation Missions: An Evaluation1
Zimbabwe Election Support Committee (ZEZN)
Published in Monograph No 122, April 2006
From State Security to Human Security in Southern Africa
Policy Research and Capacity Building Challenges
Edited by Cheryl Hendricks
Genuine democratic elections are an expression of sovereignty, which belongs to the people of a country, the free expression of whose will provides the basis for the authority and legitimacy of government. The rights of citizens to vote and to be elected at periodic, genuine democratic elections are internationally recognised human rights. Genuine democratic elections serve to resolve peacefully the competition for political power within a country and thus are central to the maintenance of peace and stability. Where governments are legitimised through genuine elections, the scope for non-democratic challenges to power is reduced.2
The SADC Principles and Guidelines Governing Democratic Elections (hereafter referred to as ‘the SADC Principles’) provide a useful set of standards to judge whether a particular country has conducted elections that are free and fair. They reflect universally accepted standards for free and fair elections and state that they are based on standards contained in various regional and international instruments such as the African Charter on Human and People’s Rights and the human rights documents of the United Nations. They also provide guidelines for observation of elections to ensure that the standards are met.
This paper outlines and assesses the guidelines, especially the observation of elections in SADC countries by SADC observer missions and the duties and responsibilities of observers. This paper suggests some policy research areas and capacity building initiatives that should be undertaken. Zimbabwe is used as a case study for the application of the guidelines.
Principles governing democratic elections
The introduction to the SADC Principles posits that the constitutions of all SADC member states enshrine the principles of equal opportunities and full participation of the citizens in the political process. In some countries, such as South Africa, this is true. However, in the constitutions of other countries these principles are less explicit. For example, the Zimbabwean constitution only notes, in section 21, that “no-one shall be hindered from assembling freely and associating with other persons and in particular to form or belong to political parties.” The more detailed principles and values relating to elections are not enshrined in the Zimbabwean Constitution but are instead only listed in section 3 of the Electoral Act. These principles are of such crucial importance that they should be given enhanced status by incorporating them as constitutional provisions.
The SADC Principles set out the responsibilities of SADC member states holding elections. The states must do the following:
Take measures to ensure the “scrupulous implementation” of these democratic election principles;
Establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel;
Safeguard human and civil liberties of all citizens, including the freedom of movement, assembly, association, expression, campaigning and access to the media on the part of all stakeholders, during electoral processes;
Provide adequate resources for carrying out democratic elections;
Ensure that adequate security is provided to all parties participating in elections; and
Ensure the transparency and integrity of the entire electoral process by facilitating the deployment of representatives of political parties and individual candidates at polling and counting stations and by accrediting national and other observers/monitors.
Section 2 of the SADC Principles provides that SADC member states shall adhere to certain principles in the conduct of democratic elections, namely:
Full participation of citizens in the political process;
Freedom of association;
Regular intervals for elections as provided for by the respective national constitutions;
Equal opportunity for all political parties to access the state media;
Equal opportunity to exercise the right to vote and be voted for;
Independence of the judiciary and impartiality of the electoral institution;
Acceptance and respect of the election results by political parties proclaimed to have been free and fair by the competent national electoral authorities in accordance with the law of the land; and
The ability to challenge the election results as provided for in the law of the land.
Some of these principles are further elaborated in section 7, which sets out the responsibilities of member states holding elections. The principle with regard to the impartiality of the electoral institution must be read together with section 7.4 of the SADC Principles which obliges a member state holding elections to “establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel.” In Zimbabwe, the Registrar-General of Voters has often been accused of blatant bias in favour of the ruling party and the method of appointment the Electoral Commission does not guarantee the Registrar-General’s impartiality and inclusiveness.
Section 7.4 further provides that member states must “safeguard the human and civil liberties of all citizens including freedom of movement, assembly, association, expression, and campaigning as well as access to the media on the part of all stakeholders”. Even when read together with later sections of the SADC Principles, and with other documents referred to in the Principles, the principles are sometimes stated so tersely that it is difficult to see what detailed criteria the observation team should use to judge whether a principle has been satisfied. For example, the principle of providing voter education does not indicate whether or not this should be the exclusive preserve of an Electoral Commission. What if that Commission is not sufficiently independent and impartial or, even if it is, what if it does not have adequate resources to conduct a meaningful voter education campaign? The Zimbabwean Electoral Act provides that election monitors will be public servants appointed and deployed by the Electoral Commission. Many people have the perception that public servants will carry out their duties in a politically biased manner. It would therefore be far better if monitors were suitable persons drawn from civil society groups. These monitors would be trained in their duties and a code of conduct would be drafted to govern their behaviour. Another example is the principle that there should be equal opportunity for all political parties to access the state media. Given the key importance of access to the media for the purposes of campaigning, one would expect greater detail on the issue. For further guidance one has to look to other documents, such as the Guidelines and Principles for Broadcast Coverage of Elections in the SADC Region.
The SADC Parliamentary Forum Electoral Recommendations also contain useful commentary on the problems of equitable media coverage of elections. This document delves into the role of the private media, pointing out that,
In the majority of SADC countries the state-owned media is controlled by Government. This often causes imbalance in the playing field between the stakeholders, mainly the ruling party and opposition parties. It contributes to lack of transparency through selective reporting. Where the opposition parties are given air time, it is too short and the timing may be inappropriate. The recent emergence of a vibrant private media has greatly contributed to some balance in political coverage of both ruling and opposition parties.3
Election observation guidelines
Election observation can provide international validation of elections, which adds to the credibility of those elections. Election observation involves scrutinising and assessing an election to determine its impartiality in terms of organisation and administration. It invariably includes an assessment of the policy and actual formulation of the electoral law, and the role of electoral officials, security forces and politicians. Election monitoring is ongoing and is normally undertaken by local players. Thus, the SADC Parliamentary Forum recommends that government and political parties should recognise that observers are important for fostering transparency, integrity and institutionalising democratic processes.
When observing elections in member states, SADC observers are enjoined by the Principles to take into account the following criteria:
Whether there are constitutional and legal guarantees of the freedom and rights of citizens;
Whether there is a conducive environment for free, fair and peaceful elections;
The principle of non-discrimination in voter registration;
The existence of an updated and accessible voters’ roll;
The timeous announcement of the election date;
Transparent funding of political parties based on an agreed legal threshold;
The need for polling stations to be situated in neutral places;
Vote counting at polling stations;
The existence of a mechanism to help plan and deploy electoral observation missions.
Election observation is not mandatory
It is not obligatory for a SADC country holding elections to invite a SADC Electoral Observation Mission (EOM) to observe its elections. Section 3.1 simply provides that a SADC EOM will have an observation role only “in the event a Member State deems it necessary to invite SADC to observe its elections.” This is unsatisfactory. In the interests of consistent application of the electoral principles, all SADC countries holding presidential or parliamentary elections should be obliged to invite a SADC observation team to observe its elections.
In addition, little is said about how the EOM should be composed except:
The mission must be headed by an appropriate official from the Office of the Chairperson of the Organ on Politics, Defence and Security Cooperation (Section 6.1.10)
The mission must comply with SADC policies relating to gender balance (Section 3.4); and
Although members of the mission may come from different political parties, they should act together as a team (Section 3.4).
The predominant pattern thus far for the composition of SADC EOMs is that they are composed primarily of state actors and members of political parties from various SADC countries. In his paper entitled “Legal Questions in the harmonisation of Norms, Standards and Approaches to Electoral Observation in Southern Africa”,Tawanda Mutasah makes these important observations:
. . . to be meaningful, electoral principles have to be checked by impartial Observers. The Principles, in the way they are framed, restrict the power of identification of Observers to the Organ on Politics, Defence and Security Cooperation. Since the Executives are key players in electoral contests, it cannot be right for them to choose the referees for their own contest against opposition in their countries. Moreover, it remains a concern that this comes in the context where SADC leaders have either tended to maintain deafening silence regarding abuses of human rights in their neighbouring countries, or, when they have spoken, they have done so with water in their mouths.4
There is therefore a need to broaden the composition of such missions to include a far wider cross-section of people, for example, civil society groups from other countries, especially those that specialise in election-related matters, media experts and academics. This broadening of the expertise will enable specialist sub-committees to be set up to probe specific areas, for example, access to the media by political parties, thus enhancing the quality and credibility of the observation process.
Impartial and professional observation
It critically important that the persons appointed as observers act impartially and are generally perceived as impartial. Section 5.1.2 thus provides that the election observers must maintain strict impartiality in the conduct of their duties, and must at no time express any bias or preference in relation to national authorities, parties and candidates in contention in the election process. Section 5.1.3 provides that observers must not accept or attempt to procure gifts, favours or inducements from any person involved in the electoral process. Section 5.1.4 stipulates that observers must disclose immediately any relationship that could lead to a conflict of interest with their duties or with the process of the observation and assessment of the elections.
Clearly, observers must refrain from making premature judgements about the freeness and fairness of the elections before the elections have taken place.5 In this regard, section 5.1.13 provides that election observers “will refrain from making personal or premature comments or judgements about their observations to the media or any other interested persons, and will limit any remarks to general information about the nature of their activities as observers.”
It is important that final judgements about elections are based on carefully gathered, accurate information. Thus, in section 5, election observers must base all reports and conclusions on well-documented, factual and verifiable evidence from multiple credible sources as well as their own eye-witness accounts. They must seek a response from the person or organisation concerned before treating any unsubstantiated allegation as valid. In their reports they must identify the exact information and the sources of the information they have gathered and used as a basis for their assessment of the electoral process or environment. Finally, observers are enjoined to report all information gathered or witnessed by them honestly andÂ accurately.
The observation period
The relevant electoral institution of the country holding the election is supposed to invite the SADC observation mission 90 days before the voting day in order to allow adequate preparation for the deployment of the mission. Section 4.1.10 merely provides that SADC EOMs should be deployed at least two weeks before the voting day. Although the deployment is supposed to be at least two weeks in advance of the voting day, given the lack of resources presently available for such missions, it is unlikely that the mission will arrive much before the two-week minimum period specified. This period of time is inadequate for any meaningful process of election observation. Elections are a process and the period leading up to the actual voting day is of criticalÂ importance.
Section 4 of the SADC Principles provides some guidelines for the observation of elections. These are supposed to be taken into account by SADC states in determining the nature and scope of election observation. (author’s emphasis.) Some of these guidelines are:
Constitutional and legal guarantees of freedom and rights of the citizens;
An environment conducive to free, fair and peaceful elections;
Non-discrimination during the voters’ registration;
The existence of an updated, accurate and accessible voters’ roll.
These factors can only be assessed over a period of time. For example, in Zimbabwe, there has often been widespread violence and intimidation, such as threats to withhold food relief. These tactics may be employed for several months and then may cease, or be toned down, when an observer mission arrives two weeks before the election. Thus, the damage to the freeness and fairness of the elections may have been done prior to the arrival of the observer mission and it then becomes difficult for the mission to investigate properly allegations of past violence and intimidation. This is especially true if the local police force have deliberately failed to investigate such complaints.
The SADC Guidelines should make provision for a monitoring team to be sent to the country concerned two months before the voting day to check whether the general conditions are in place for the holding of free and fair elections. Their mandate might include such things as unimpeded campaigning and an accurate, and up-to-date voters’ roll. The main observation team should then arrive a few weeks before the voting day to observe the process during the period immediately prior to voting day, the process on the day, the vote counting, and the announcement of the results. This team should remain in the country for at least two weeks after voting day to check to ensure there are no reprisals exacted against voters for having voted in a particular fashion. If, after its departure, credible reports are received that voters are being subjected to violence because of the way in which they voted, the original observer mission should be obliged to investigate these reports.
Financing of observer missions
The necessary finance will have to found to mount a two-stage process of monitoring and observation, and to extend the period of time that the main observation team spends in the country. However, the country in which the election is being held should be obliged to contribute at least a major share of the travel and accommodation expenses of the teams sent by SADC. All other SADC countries should also be required to contribute to an observer mission fund in accordance with their respective financial capacity. During Zimbabwe’s March 2005 general election, South Africa and Mauritius appeared to provide the bulk of the finance.
All observer missions must be provided with a proper secretariat to service the whole range of needs of such a mission, including co-ordination and communication with the media and with the various political parties.
To be credible, observers must be deployed throughout the country. It is particularly important that there should be proper observation conducted in remote rural areas, and that observers should not confine themselves to main urban centres. It is in the remote rural areas where there is the greatest scope for electoral irregularities. In order to achieve this dispersed deployment, it is imperative that there be a large delegation of observers who are properlyÂ funded.
Given SADC’s resource limitations, it is important that SADC countries be encouraged to invite other regional and international election observation teams. In this way, the pool of observers will be increased. This is implicit in section 5.1.16 of the SADC Principles, which states that the SADC observers should work harmoniously with each other and with observers from other organisations in their area or deployment. International and regional observers should also communicate and liase with local Zimbabwean monitors. Local monitors, with their intimate knowledge of local conditions, will be able to provide valuable insights.
SADC countries should not be permitted to extend invitations only to countries and organisations that they believe will rubber stamp their elections as being free and fair. For the March 2005 parliamentary elections in Zimbabwe, the government refused to invite observers from countries and organisations that had given negative reports on previous elections.6 Thus, no observer teams were allowed from the SADC Parliamentary Forum7, the United States, the Commonwealth, Australia, Japan, the European Union, Britain and other European countries that were critical of Zimbabwe’s last parliamentary election in 2000 and the subsequent 2002 presidential election. The Congress of South African Trade Unions, Cosatu, was also not invited. On the other hand, invitations were extended to friendly states such as Tanzania, Namibia, China, Iran, Venezuela and Russia, as well as friendly organisations such as the Non-Aligned Movement and the African National Congress of South Africa.
There are inherent dangers if SADC countries can restrict election observation to just one observer mission sent by the Organ on Politics, Defence and Security Co-operation. One danger is that it becomes a rather incestuous process. It will also create the suspicion that such an observer mission will not be impartial because it may not want too exactingÂ standardsÂ toÂ beÂ applied in its own country when elections are held there.
Reports by SADC states
As part of the process of ensuring that SADC countries are equipped to conduct free and fair elections, states could submit written periodic reports to the SADC OPDS. These reports would outline which constitutional provisions, electoral laws and administrative structures had been put in place to meet the standards of the SADC Principles.
Consolidation and re-formatting of guidelines
The SADC Principles state that they are informed by SADC legal and policy instruments, but also by the major principles and guidelines emanating from the OAU/AU Declaration on the Principles Governing Democratic Elections and the AU Guidelines for African Union Electoral Observation and Monitoring Missions. There is also reference in the introduction to instruments such as the Charter and Conventions of the African Union and the United Nations. It is confusing to have to refer to instruments other than the main document and it is recommended that an attempt should be made to produce a single consolidated document incorporating the relevant sections from the various documents to which reference is made. It would also be useful to harmonise this consolidated document with other documents produced by other organisations that have had extensive experience in this field. For example, the Electoral Institute of Southern Africa and the Electoral Commissions Forum have published the Principles for Election Management, Monitoring and Observation in the SADCÂ Region.
It is also recommended that the consolidated document should seek to emulate the style adopted in the SADC Parliamentary Forum Electoral Recommendations. In March 2001, the SADC Parliamentary Forum8 developed and publicised a series of recommendations for elections. These were a result of the forum’s observation of elections in Mauritius, Mozambique, Namibia and Zimbabwe. The document was adopted by the plenary on 25 March 2003 in Windhoek, Namibia. These recommendations reflect contributions by each member state and enable a country’s election process to be measured locally, regionally and nationally. Under each topic, the Parliamentary Forum document clearly sets out problems that can arise and then goes on to make detailed suggestions about how these can be avoided. For instance, it points out that doubts have been expressed about the independence, impartiality and professionalism of some national electoral commissions. It suggests this problem might be overcome asÂ Â follows:
By affirming the independence and impartiality of the electoral commission in the constitution;
By entrenching commissioners’ security of tenure in the constitution;
By ensuring the commission has its own budget voted by parliament; and
By allowing the commission to appoint its own professional staff rather than seconding its staff from ministries.
Most crucially, it suggests a method of appointment of commissioners:
The commissioners should be selected by a panel of judges set up by the Chief Justice or the equivalent, on the basis of the individual’s calibre, stature, public respect, competence, impartiality and their knowledge of elections and political development processes. The selection of commissioners should be done in consultation with all political parties and other interested stakeholders. The selected commissioners are to be approved by Parliament.9
This is helpful in explaining why independence and impartiality of electoral commissions is of such importance. It is also helpful to an EOM team in deciding whether the electoral commission in a particular country operates in a politically impartial manner.
Dissemination of SADC Principles to ordinary people
It is important that the SADC Principles be widely communicated to people in the various SADC countries. They should be translated into local languages and there should be radio programmes publicising them. In this way, ordinary citizens will be made aware of the principles that should be adhered to in order to ensure that elections are free and fair. They will also know the criteria that will be applied by a SADC EOM.
Are the SADC Principles legally binding?
Many authors have argued convincingly that the SADC Principles are not binding10 because they are subject to domestic law and only require observation by request. For the SADC Principles to have a meaningful impact, their status must be elevated and consequences of their infringement spelt out.
Tawanda Mutasah makes the interesting suggestion that consideration should be given to setting up “an African Electoral Commission that could assume a role as prestigious as the setting up of the African Court of Justice”. This, he says, could bring together and strengthen “the voice of election management bodies and civil society at the continental level.”11 He also advocates the establishment of a pan-African specialist database on electoral standards and best practice.
The SADC Principles are potentially a useful set of standards to judge whether a particular country has conducted elections that are free and fair. They will, however, only be useful if SADC governments ensure that they are fully implemented in practice. They should be made legally binding on all SADC states and should not be able to be watered down by domestic legal provisions. An audit of national laws to assess gaps should be lobbied for which should lead to electoral reforms and capacity-building activities that are tailor-made to suit member states’ different needs. The OPDS has a very important role to play in this regard. It should ensure that SADC states actually measure up to these standards. It should be compulsory that all SADC countries invite a SADC EOM whenever they conduct national elections. If the observation process is to be credible, however, the election observation needs to be done thoroughly and professionally by people seen as impartial. The mounting of such observation missions will obviously require considerable financial and human resources. Such expenditure can be fully justified, however, because if election observation is conducted superficially, without any proper probing of the conditions on the ground, the whole process will be discredited and SADC governments will be able to flouting the SADC Principles. Properly conducted free and fair elections would remain merely a pipe dream in at least some of the countries in the SADC region.
The SADC Observer mission should not, however, be the only body allowed to observe elections in SADC countries. SADC countries should be encouraged to invite a variety of other observer missions, including from the United Nations, from acknowledged non-governmental organisations with professional expertise in election observation such as the Electoral Institute of Southern Africa, and from a variety of other countries inside and outside Africa. What SADC countries must not be permitted to do is to cherry-pick observer missions, choosing only those that are likely to endorse the election even when gross irregularities have occurred.
Review of the SADC Principles document should be supported so that more details might be included which have a bearing on contentious SADC elections. Details which might be added include independence of the election management body, freedom of assembly, association, expression, citizenship, media freedom, political party funding, policing and the role of security forces in elections, and succession issues.
Lastly, conflict transformation mechanisms needs to be included in the document to deal with election-related disputes. Innovations like setting up a SADC Electoral Tribunal made up of independent judges should be lobbied for. This would expedite the impartial resolution of election-relatedÂ disputes.
An earlier version of this paper was presented by Rindai Chipfunde on behalf of Zimbabwe Election Support Network (ZESN) at the ISS Policy Research and Capacity Building Workshop, Cape Town, December 1-2, 2005.
Excerpt from a document entitled Declaration of Principles for International Election Observation and Code of Conduct for International Election Observers commemmorated at the United Nations on 27 October 2005.
SADC Parliamentary Forum, Norms and Standards for Elections in the SADC Region, adopted on 25th March, Windhoek, Namibia, 2001, pÂ 9.
T Mutasah, Legal Questions in the Harmonization of Norms, Standards and Approaches to Electoral Observation in Southern Afric, Paper presented at the SADC Parliamentary Forum Conference on the Review of Norms and Standards for Elections in the SADC Region, Maputo, November, 2005.
Before the March 2005 Zimbabwean Parliamentary elections, the South African President virtually endorsed, in advance, Zimbabwe’s poll as free and fair. He told reporters that he could see no reason to think that “anybody in Zimbabwe will act in a way that will militate against elections being free and fair”. Previously, Mr Mbeki’s deputy, Mr Jacob Zuma had told the South African Parliament that he could not understand why some opposition parties were predicting that there would be problems when Zimbabweans go to the polls on March 31. “I really don’t know why we think there are going to be such problems in Zimbabwe,” said Zuma. Thirty minutes after arriving in Zimbabwe, Mr Membathisi Mdladlana, the South African Labour Minister and leader the official South African observer mission, said that everything was “calm and smooth” and that the ballot would be conducted properly. Mdladlana also said that many people had drawn the conclusion that elections in Zimbabwe would not be free and fair. “Those people are a problem and a nuisance,” he said. “But nobody attacks them. Some of us are fed up with their lies.” Cited in the Sunday Herald, 27 March, 2005. See .
The Zimbabwean Electoral Act provides that observers have to be accredited by a committee dominated by nominees of various government ministers, including the President’s Office, and only persons invited by a minister or by the Electoral Supervisory Commission (not the Electoral Commission) will be eligible for accreditation. This will mean that the ruling party will be able to control who is invited to observe the elections and it will probably try to invite only people who are likely to ‘rubber stamp’ the March 2005 election as being free and fair.
The SADC Parliamentary Forum has observed other elections in the SADC region. It observed the Zimbabwean presidential elections in 2002 and reported that they were not free and fair. The Zimbabwean government denies that it has refused to invite the Forum because of its negative report on the 2002 election. However, the Forum was refused permission to send a mission because the Zimbabwean government alleges the Forum is biased because it receives funding from Western governments.
The SADC Parliamentary Forum (SADC PF) is a regional organisation of 12 parliaments in the SADC region with 37 parliamentarians (men and women, and from both ruling and opposition parties).
SADC Parliamentary Forum, op cit, p 10.
See for example A Tsunga, “SADC Principles and Guidelines governing Democratic Elections Analysis: A bird’s eye view”, unpublished, ; and Mutasah op cit, 2005.