The Election Resource Centre acknowledges the appointment of the new Chief Election Officer (CEO), Mr Utoile Silaigwana with effect from July 1, 2019.
The appointment fills a vacancy left after the departure of the former CEO, Mrs Chigwamba in March 2018. Mr Silaigwana had been acting as interim CEO following the departure of Mrs Chigwamba.
While the appointment is in terms of the current legal framework for elections, the ERC reminds the Executive, Parliament and the Zimbabwe Electoral Commission (ZEC) that several provisions in the Electoral Act relating to the independence of ZEC remain in contravention of section 235 of the Constitution which states that independent commissions are not subject to the direction and control of anyone.
The unconstitutional provisions limit the capacity of ZEC and its officials to deliver election processes that are credible.
As an example paragraph 4 of the 6th Schedule of the Electoral Act gives the President, unilateral powers to set the conditions of service of the Commissioners.
The independence of the appointment of the CEO remains questionable if the President, an interested party in electoral processes, determines the condition of service of the commissioners who appoint the CEO.
Furthermore, the Electoral Act used in the appointment of the new CEO violates Section 235 of the Constitution by constituting a ten-member Accreditation Committee comprising of five members from the commission and five members nominated by the Executive from the Ministry of Justice, Legal and Parliamentary Affairs, Ministry of Foreign Affairs, Ministry of Home Affairs, Ministry of Women’s Affairs and from the Office of the President and Cabinet.
Section 40i (1) of the Electoral Act undermines the independence of ZEC in deciding who can observe elections in Zimbabwe. Appointing a new CEO whose administration of accreditation of observers will be heavily influenced by the executive has a negative bearing on the credibility of future elections.
In running the Zimbabwe Electoral Commission, the new CEO will have to operate within the confines of Section 192 of the Electoral Act which gives ZEC regulatory powers in the administration of electoral processes.
However, in contravention of the constitutionally guaranteed independence of commissions, these regulatory powers are subject to Ministerial approval as highlighted by Subsection 6 which states that:
Regulations made in terms of subsection (1) and statutory instruments made in terms of subsection (4) shall not have effect until they have been approved by the Minister and published in the Gazette.
A CEO of ZEC who will need the approval of the Minister on Regulations to govern how electoral processes are conducted will definitely suffer confidence deficits from election stakeholders competing for public office with the party from which the Minister is appointed.
In terms of termination of the appointment of the CEO, Section 9 (4) of the Electoral Act makes reference to provisions in the 6th Schedule of the Act which have since been repealed.
Furthermore, Section 9 (5) states that the Commission shall not terminate the services of the CEO on a ground other than one referred to in subsection 4 without Ministerial approval.
In essence, it means that ZEC has hired a CEO that it cannot fire without the Minister of Justice, Legal and Parliamentary Affairs’ approval in contravention of Section 235 of the Constitution on the independence of commissions.
The appointment of a substantive Chief Election Officer, while important for purposes of bringing stability, highlights the need to institute inclusively, electoral reforms.
The Chief Election Officer is assuming a position governed by the very same legal framework for elections that was questioned by observers and election stakeholders.
Changing people while the infrastructure for elections remains unchanged would be an act in futility.
The jury is out on whether the appointed CEO will lead the fight to reinforce the independence of the ZEC and adhere to the constitutional principles of inclusivity and accountability in the administration of all electoral processes.
As the ERC we wait to see if the appointment of the ZEC CEO will transform ZEC into a responsive, service-minded public body that enjoys the confidence of all election stakeholders.
An appointment of the nature made by ZEC must be accompanied by an honest commitment by the body to uphold, protect and abide by the supreme law of the land by disregarding legal provisions that are ultra vires the Constitution.
The ERC encourages government, Parliament and ZEC to embark on exhaustive electoral reforms in an inclusive manner as an urgent matter.
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