High Court’s Suspension Of Elections Casts Doubt On ZEC's Independence - ERC

The Election Resource Centre (ERC) has said the High Court’s decision to sanction to the suspension of elections done by the Government of Zimbabwe under the guise of fighting COVID-19 casts doubt on the independence of the Zimbabwe Electoral Commission (ZEC). In a statement seen by Pindula News, ERC and Women’s Academy for Leadership and Political Excellence (WALPE) also opposed “government interference in the administration of elections.” Reads the statement dated 13 July 2022:

STATEMENT ON THE HIGH COURT’S DECISION TO DISMISS BY-ELECTION CHALLENGE

The Election Resource Centre (ERC) and Women’s Academy for Leadership and Political Excellence (WALPE) have reacted to the judgement of the High Court of Zimbabwe giving judicial sanction to the suspension of elections done by the Government of Zimbabwe under the guise of fighting COVID-19 as a lost opportunity by the Courts to reinforce the independence of the Zimbabwe Electoral Commission (ZEC) and reaffirm Zimbabwe’s commitment to the separation of powers.

The independence of ZEC is a foundational principle to Zimbabwe’s democracy, and the High Court’s decision to sanction the suspension of elections casts doubt on the independence of the Commission in terms of election administration and certainty in the electoral calendar and its abilities to conduct and manage elections as provided for in the country’s constitution, which is the supreme law of the land.

The judgement delivers a blow to the constitutional independence of the Electoral Commission and potentially exposes the Commission to continued infringement of its independence and will embolden the Executive and Governmental branches to override the constitutional mandate of ZEC and unilaterally suspend elections under the guise of a health emergency.

The ERC and WALPE have long opposed government interference in the administration of elections. The High Court’s decision in Ellah Tayengwa & Ors v Zimbabwe Electoral Commission & Ors 1 potentially exposes ZEC to interference. Certainty of process and timelines and uncertainty of outcomes should be the principle that drives government policy. This decision reinforces the suspicion that ZEC’s independence is compromised and casts significant doubt on the certainty of electoral timelines prescribed by the Constitution. ERC and WALPE are concerned that this decision will impact on the future independence of ZEC and the certainty of electoral timelines as outlined in the Constitution. The interpretation by the Court unfortunately opens up the Electoral Commission to usurpation of its administrative functions and independence in terms of section 239 of the Constitution.

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The overturning of the Electoral Commission’s decision to hold by-elections in December 2020 by the Minister of Health through SI 225A of 2020 raised a number of concerns chief among them the independence of the Electoral Commission and prescribed timelines to hold elections which are integral to representative democracy. The particular nature of the Electoral Commissions’ duties in terms of preserving democratic principles means that there should be safeguards built to protect the independence of the Commission.

While the Honourable Judge interprets that SI 225A/2020 was necessary in the interests of public safety and public health, the interpretation, unfortunately, fails to answer and protect the independence of the Electoral Commission in terms of election administration in line with sections 158 of the Constitution and sections 39 and 121A of the Electoral Act. Section 235 of the Constitution guarantees that in their operations, independent Commissions are not subject to the direction or control of anyone and no person may interfere with the functioning of the independent Commissions. In pursuit of guaranteeing the credibility and integrity of electoral processes, the independence of the Electoral Commission and electoral integrity must be preserved. Lack of constitutionalism in elections can severely destabilise the relationships between key electoral actors and thus undermine the value of elections to democratic governance.

We call upon all electoral stakeholders to take all necessary measures to mitigate the potential consequences of the High Court’s decision. What has happened is a setback to the credibility and independence of the Commission. The excessive use of executive power to restrict the Electoral Commissions’ independence rather than to expand it and the failure by the Court to correct the anomaly, signals a deeply troubling erosion of ZEC’s democratic values and principles.

Given the potential severely negative consequences of the High Court’s decision, it is necessary that the matter is appealed at a higher court. If not successfully challenged, the Government’s interference in elections, their management and administration could have unforeseen results as the country gears up for the 2023 elections. The independence of ZEC must be upheld at all times and this can only be guaranteed if the Supreme Law of the land is respected accordingly.

Pindula News