The Rule of Law and free elections in Africa: going beyond the rhetoric

A conference report 20-21 September 2012, Victoria Falls Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

Contents Introduction

The International Commission of Jurist • To provide African academics, Africa Programme convened a regional parliamentarians, political analysts, Introduction 3 meeting on the “The Rule of Law and election administrators, civil society Conference Objectives Free Elections in Africa: Going Beyond organisations, political parties Programme 4 the Rhetoric” on 20 September – 21 and government agencies with an September 2012 at the Elephant Hills opportunity to reflect upon the legal Day One 5 Hotel in Victoria Falls, Zimbabwe. The and regulatory framework affecting Keynote Address 6 meeting was attended by delegates from 7 elections, in Africa; Election Management Systems 13 countries, which included the Democratic • To provide the various stakeholders A review of Election Management Systems- South Africa 13 Republic of Congo, South Africa, Uganda, in Africa with the opportunity to A review of Election Management Systems- Zimbabwe 21 Zambia, Kenya, Tanzania and Zimbabwe. meaningfully engage with issues to do Legal and Regulatory Framework 27 Amongst the delegates included two with the rule of law and elections in a Analysis by Region of States compliance/adherence to constitutional cabinet ministers from Zimbabwe, heads context that is balanced and informed provisions and principle governing Elections - West Africa 27 of electoral commissions, academics, by the continents political realities; Analysis by Region of States compliance/adherence to constitutional members of parliament, political • To provide a platform upon which the provisions and principle governing Elections - Southern and East Africa 37 party representatives, civil society experiences of other African countries Regional trends on elections and democracy; Kenya 67 representatives, judges and practicing that have recently held, or are Abraham Mwansa 69 attorneys. preparing for, elections can be utilised Regional trends on elections and democracy 70 to promote democracy and good Unfortunately the meeting was unable to governance in Africa, and Day Two 76 have equal gender representation with • To evaluate challenges that have in the Democratic institutions 76 only 25% of the participants being female. past, cast doubt on the ability of the Towards strengthening and institutionalising civilian oversight: This quarter included the head of the courts to handle electoral disputes in reviewing the role of the sector in elections 76 South Africa electoral commission, deputy accordance with the principle of the Establishing democratic institutions through enactment of constitutions 86 chairperson of the Zimbabwean Anti- rule of law. In addition also review the Corruption Commission, the directors of role that has and can be played by the Conference Resolution 91 Local NGOs and a cabinet Minister. African Union and SADC in mediating Conference Objectives and/or resolving electoral disputes in Conclusion 94 Africa. The African Charter on Democracy, Tables Elections and Governance provided the A copy of the Conference Concept Note is List of Presidential Candidates 46 theoretical and structural framework upon attached hereto and marked as Annexure Provisional Results of the Presidential Elections 47 which the meeting was predicated. “A” Elections in Southern and Central Africa since 2000 61 The conference was convened with the following objectives:-

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Programme

The conference was convened over a • Legal and Regulatory Framework; period of two days with networking • Election Management Systems; events on both nights to allow for greater • Electoral Dispute Resolution, and engagement. The deliberations at the • Democratic Institutions. conference were be divided into four broad thematic areas that are informed NB: These also provided the framework by the conference objectives. These in which the conference resolutions were thematic areas are a translation and/or drafted. loosely based on Chapters of the African Charter on Democracy, Elections and There were two networking events where Governance. There were presentations delegates will be able to have a general made under each thematic rubric with an discussion on Elections in Africa and the open plenary session following thereafter. relationship that exists between Elections The last session then seek to consolidate and technology. A copy of the Programme the discussion and suggest possible is attached hereto and marked Annexure recommendation, going forward. The “B”. thematic areas to be covered are:- Day One Keynote address Professor MakauMutua1

1 Dean and SUNY Distinguished Professor SUNY Buffalo Law School The State University of New York

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Introduction We must ask the hard questions, and expect confounding answers This, in my view, is one of the sins of African thinkers and policy-makers We like mimic and copy, and to mediate our realities in languages that are not our own In a word, we like to produce dumb copies of the original First of all, let me thank Arnold Tsunga, the Director of the Africa This conference says that we must get away from mimicry and intellectual self- Program at the ICJ, and Brian Penduka, who asked me to give subordination this keynote address We must produce our own ideas, not simply the ideas of others It is my honor and privilege to address this august meeting, And that when we do receive the ideas of others, that we must adapt them to our especially during this turbulent time not only here, but circumstances, not simply implant them without acting on them for they will throughout the world surely be stillborn Nor can I think of a more fitting subject for public discourse than seemingly uncontroversial subject of “free elections” and the Universality “rule of law” on the African continent I say “uncontroversial” because it’s difficult, imagine who in At the outset, I want to level with you about the subject of intellectual bias or their right mind could look you in the eye and say that “free location, that is, even though objectivity is the name of our game, we are elections” and the “rule of law” were somehow not appropriate nevertheless products of the legacies and heritages that have forged our minds But yet that is precisely the question – the conduct of free and fair elections and In that sense, no one could be truly objective, and I therefore plead certain biases the respect for the rule of law are anything but uncontroversial in most African at the start states But I also want to warn you that with respect to the subjects at hand – those of In fact, free elections are so controversial that their conduct isn’t a matter of free the intersection of democracy and human rights – I think human rights scholars speech – as they should be – but a matter of life and death ought to adopt the view of an insider-outsider, that is, view the projects of So also for the rule of law – the idea would seem “natural” to most people human rights and political democracy with a certain degree of skepticism – that That’s what we are here for these two days to interrogate – how do we transform is not to say that I do not think that the projects have redemptive purposes; it our reality from one in which elections are deadly to one in which they are a is to say that academics ought to be able to distinguish between advocacy and routine part of the lives of ordinary citizens? scholarship Where the rule of law is taken for granted? In this respect, I see no contradiction in using both modern and post-modern categories while at the same critiquing them The subject of the conference suggests there is more than meets the eye when we I want to suggest, also, that we must approach all claims of universality with talk about the rule of law and elections in Africa caution and trepidation The topic suggests a metaphor – if it was a car we should kick the tires and look I say this because visions of universality and predestination have been intertwined under the hood to see whether it was functional throughout modern history That’s why the organizers thought we should go “beyond the rhetoric” And that intersection between universality and predestination has not always been I took this instruction to mean that we should not be cabined by either political a happy one: with an alarming frequency, such visions have been deployed to correctness or lip service to an ideal advance narrow, sectarian, and exclusionary ideas and practices I took the topic as an admonition from the organizers that we should reject the So at the purely theoretical level, we are chastised not look not once – but twice, tyranny of the intellect that forces us to sing songs we don’t understand or and again – at universalizing creeds, messages, phenomena, and ideas unthinkingly participate in projects we haven’t fully interrogated This is not to suggest that universality is always wrong-headed, or even devious, I think we should get away from treating ideas and ideologies as fashions to be although it has been frequently been those things as well – but it is rather to worn simply because they are in season assume that universality is not a natural phenomenon

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Universality is always constructed by an interest for a specific purpose, with a necessary to guarantee and protect them are now expressed in the human specific intention rights corpus Secondly, I want to suggest that all social truths are initially local – they are Some of the critical democratic rights are the rights to assembly, movement, contextual, cultural, historical, and time-bound speech, organize, etc. That is not to say that local truths cannot become universal truths But all of these are premised on the individual who is endowed with formal equality They can, and the question for me is how one gets from here to there and abstract autonomy If we do not understand this basic admonition, we risk repeating the incalculable Both political democracy and human rights would collapse as coherent doctrines if mistakes of yesteryear these two pre-eminent norms were subtracted from them It is with these caveats that I want to propose a new way thinking about the free Political democracy has evolved from a particular historical experience into a global elections and the rule of law civilizational norm There is growing evidence that political democracy – or the right of a people to Political democracy freely elect their own leaders in a political system undergirded by liberalism – is evolving into a customary rule of international law I think there can be no doubt that political democracy, and all that it incubates and But this evolution from the particular to the universal doesn’t tell us how Africa implies, is the most critical realization of the liberal tradition should adapt and practice political democracy, or as the focus of the conference At the center of this tradition are two basic fictions – abstract autonomy and formal puts it, create a society governed by the rule of law in which free elections are equality without which the bare republican state, popular sovereignty and the norm constitutional government would not exist It is vitally important that we process the state not as a master, or some These norms and the institutional structures they produce form a historical instrumentality for oppression, but a servant of the people, an enabler that continuum in which liberalism gives birth to political democracy which in turn is allows each one of us to realize our potential expressed morally in the human rights corpus and its movement You see, the state would not exist but for us – we are the foundation of the state I am not arguing that any of these phenomena are static or frozen in time; quite because we established it and gave it our consent to govern through us and on the contrary, but they have a basic character our behalf Political democracy describes a typology of government that is characterized by In other words, we give the state the RIGHT to govern – this is the concept of certain procedural and normative attributes, most of which are process-based popular sovereignty and not substantive or consequentialist In this concept, the state must not be tyrannical, and if it is we have the right to Political democracy is more of a method and a set of techniques than a fossilized smash it system that is frozen in place This means that the best state exists to enhance liberty and freedom, not to restrict These methods and techniques include free and open periodic elections, speech them and associational rights, the rule of law and an independent judiciary, the The default position of the best state is that things are permitted, not prohibited – separation of the three arms of government, and the principle of equality and that prohibition, a limitation on freedom or liberty requires a compelling logic the guarantee of individual rights, these are the minimum requirements of a and a high bar for the state to meet political democracy Incontestable principles and tenets The most important of these procedures is periodic, open elections in which the key political decision-makers are selected or anointed Today, there are core universal civilizational values that bind us no matter where we But this process of contestation and participation revolves around the individual as are, who we are, what we are, what we believe or who we worship, how we look the center of the moral universe who is endowed with democratic rights like, what we eat, what language we speak As it turns out, those democratic rights, and the norms, processes, and institutions In short, we are protected in our basic identities and human conditions

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But these protections – for the weak or strong, the poor or the rich, the big or the discrimination (think of treaties on children, women, race, etc) small, the male or the female, no matter what color, creed, sexual orientation, In fact, the whole question of rights and the rights regime would be meaningless race, and ethnicity you are – are not possible without two fundamental tenets of without them liberal theory and philosophy The Rule of Law and elections – An African context These are formal equality and abstract autonomy of the individual Yes, the individual (as the foundation of human civilization) Let me repeat, political democracy isn’t possible without the basic tenets of Abstract No modern society, as we know it today, is possible without these two key tenets Autonomy and Formal Equality (formal equality and abstract autonomy) The question that we must ask and answer is this – are these values alien to Africa, Think about what would not be possible without these two tenets – the conception and even if they are, so what? of political democracy would not be possible, the notion of human rights cannot Does it even matter where these norms came from? be constructed without them, in fact it would be impossible to defend the right In other words, are these moot questions? to life, or to be free from slavery without these two concepts It’s not possible to answer these questions without saying a thing or two about Formal equality ensures that each one of us has inherent and intrinsic worth as culture a human being (that no one human being is more important than another in As far as far I know, culture is the dynamic sum total of a people’s lived wisdom, terms of their inherent worth) that is, culture encompasses everything about a people Equality may be a legal fiction that liberal philosophy encodes, but whether fiction So culture isn’t something that belongs to the museum of antiquities or not, we cannot imagine – and do not want to live – in a society that is That’s why when you denigrate a culture, you denigrate its people – you say to explicitly based on the INEQUALITY of human beings them that they are subhuman Visualize states and conditions of explicit inequality – Apartheid South Africa, the That’s why the notion of a hierarchy of cultures is empirically indefensible, racially caste system in India, the Hutu/Tutsi dichotomy in Rwanda and Burundi, female bigoted, and totally unacceptable subordination all over the world, and the enslavement of people of African No one culture is superior to another and by the same token, no culture is pure – descent in the United States – and you get my point cultures grow out of penetration and counter-penetration It’s wrong for one culture to claim, as the West often does, that it produces ideas The second concept is that of Abstract Autonomy which means that as individuals while others only consume – but do not produce – ideas were are autonomous, that no one owns us – that we are sovereign beings in our own right My argument is that even though liberal thought and philosophy have their origin This is the foundational idea of democratic citizenship, that we are rational beings in the age of Enlightenment in Europe, they have become part and parcel of the who have the right to make individual choices about our fate fund of universal human knowledge Not only that – they have been enriched and transformed by human experiences It is based on these two tenets (formal equality and abstract autonomy) that and cultures outside of Europe and North America political society formulates two key principles (equal protection and anti- It’s true that liberalism is distinguished from other traditions by its two key tenets – discrimination) abstract autonomy and formal equality These principles are the flip side of one another – discrimination is prohibited But the spirit of those tenets wasn’t absent in other cultures because equal protection is required Nor was the notion or spirit of representative government It is these two principles which are the cornerstones of the human rights idea – That is why the peoples of Africa have largely embraced the concepts of the rule of remove them and the whole human rights idea completely collapses law and free elections Every human rights treaty or idea is based on equal protection and ant- Post-colonial states in Africa have done so, too, but with less enthusiasm and more

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trepidation for reasons we all know too well Conclusion However, the way Africans theorize and practice free elections and the rule of law – in democratic system – must have an African flavor Let me conclude Liberal democracy in Africa must germinate on this continent’s native soil, or it I don’t deny – in fact I accept – the fact that political democracy was alien to Africa surely will not be sustainable So was the rule of law in the forms in which they were practiced in the West But I believe that the spirit behind the free elections (representative government in Creating a democratic culture which the people participate in governance) and the rule of law (the exercise of public power without caprice by officialdom) are deeply African We all know that you can have free and fair elections and the rule of law and NOT The challenge of Africa is not to simply mimic Western forms of democracy have a democracy It is to find out how democratic values and processes – like free elections and the But we also know that you CANNOT have a democracy without free elections and rule of law – can be germinated on the continent’s native soil to give them an the rule of law African personality The suggestion is that DEMOCRACY is much more than free elections and the rule of Look at India – one of the most successful democracies in the world – they have law – these two are important variables but by themselves do not a democracy done it their way make So have the Japanese, the Turks, the South Africans closer to home, the Brazilians, Creating a democracy is a cultural process that incubates techniques, processes, and so on and norms into the cultural fabric of a society There isn’t a strait-jacket that fits all People must willingly submit themselves to these new norms which must have Different African states will have different FORMS of democracy so long as the a cultural purchase and legitimacy among the majority, the deep and broad underlying norms are true to notions of citizen empowerment and popular majority of the people participation free of tyranny and dictatorship either of an individual, party, or a It’s true that the political class must buy these ideals, but so must the professional class classes, working people, and the rural poor This is the bottom line – let’s grow something that works for different African states The bureaucratic state must support them within the framework of the constitution so long as it is genuine and deeply legitimate and just laws The judiciary must uphold them as the guardian of legality Political parties must abide by the rules of inclusion, openness, fair competition, Election Management Systems compromise, and the critical question of accepting defeat at the polls Pre-election campaigns and the media cannot be divisive along the society’s A review of Election Management Systems– South Africa sharpest cleavages (race, ethnicity, gender, disability, sexual orientation, social Adv. Pansy Tlakula2 and economic status, and religion) otherwise the political landscape will be completely broken Introduction Questions about the credibility and But above all, democracy is a system that pivots on compromise, moderation, and In the past decades, numerous elections legitimacy of elections are asked and there tolerance were held regularly on the continent are threats to the integrity of the electoral These are the unarguable intangible requirements in a democracy with no serious events or consequence. process on the continent. However, some elections in a few parts have been marred by violent conflict Safeguarding election integrity in Africa mainly due to the rejection of the electoral Multi-party elections are a vital component outcomes by the losing contestants. of democracy, as they are the only

2 Chairperson: Electoral Commission of South Africa

12 13 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls effective and reliable instrument for • Fair, transparent and impartial The African Charter on Democracy, Constitution of the Republic of South citizens to choose their representatives administration of the elections; Elections and Governance (Charter) Africa (Constitution). This brought to a and the government to which they • political freedom to participate freely As far as elections are concerned, the close a long and bitter struggle against want to entrust their governance and and equally in an atmosphere without Charter provides that State Parties should apartheid. As stated in the preamble to administration of their social affairs. Thus fear; re-affirm their commitment to regularly this constitution, through its adoption, an election bestows legitimacy to any • accountability of all participants; hold transparent, free and fair elections the people of South Africa committed particular government. Elections are the • built in mechanisms, including in accordance with the African Union’s themselves to “heal the division of the most important tool to translate civic and monitoring by civil society and a free Declaration on the Principles Governing past and establish a society based on political rights into practice. However, media, to safeguard integrity and Democratic Election in Africa. In this democratic values, social justice and elections can only perform these critical ensure accountability; and regard, the Charter enjoins State Parties to fundamental human rights; lay the functions if they are credible and perceived • enforcement.1 do the following: foundation for a democratic and open as such by the vast majority of citizens. society in which government is based on Within the African Union, the African Heads • Establish and strengthen independent the will of the people and every citizen The lack of electoral integrity has become of State and Governments have sought and impartial national electoral bodies is equally protected by law; improve the a major challenge facing not only Africa to establish a set of normative guidelines responsible for the management of quality of life of all citizens and free the but the world as a whole. This includes for the conduct of “democratic” elections elections potential of each person…” flaws in the conduct of elections; often in the continent. The first of such norms • Establish and strengthen national raising questions on transparency, was the 2002 Declaration on the Principles mechanisms that redress election The Constitution is founded on the accountability, accuracy and ethical Governing Democratic Election in Africa related disputes in a timely manner following values 4: human dignity; standards. (the Declaration). • Ensure fair and equitable access by the achievement of equality and the contesting parties and candidates to advancement of human rights and Mechanisms for maintaining and In terms of the Declaration, democratic state controlled media during elections freedoms; non-racialism and non-sexism; implementing integrity need to be elections should be held under the • Ensure that there is a binding code of supremacy of the constitution and the established within the very organizations following principles; conduct governing legally recognised rule of law; universal suffrage, a national that administer elections. These mechanisms political stakeholders, government and common voters’ roll, regular elections must make it possible to monitor actions • free and fair; other political actors prior to, during and a multi-party system of democratic of the electoral administration. They must • under democratic constitutions and and after elections. The Code shall government to ensure accountability, ensure oversight of the electoral process in compliance with supportive legal include a commitment by political responsiveness and openness. by other government sectors or agencies, instruments; stakeholders to accept results of the civil society, and the media; and they • under a system of separation of elections or challenge them through The Constitution further establishes a must provide for enforcement of rules and powers that ensures in particular, the exclusively legal channels. 3 number of institutions to strengthen and regulations through administrative or legal independence of the judiciary; support constitutional democracy 5. These means. • at regular intervals, as provided for in The South African example institutions include the following: the National Constitutions; South Africa’s venture into electoral Public Protector, the South African Human Electoral integrity requires: • by impartial, all-inclusive competent democracy predates the adoption of the Rights Commission, The Commission for accountable electoral institutions Declaration on the Principles Governing the Protection of the Rights of Cultural, • A generally accepted code of ethical staffed by well-trained personnel and Democratic Election in Africa. Religious and Linguistic Communities, behavior in politics; equipped with adequate logistics. 2 the Commission on Gender Equality, • An electoral framework that is equitable On 10 December 1996, former President the Auditor-General and the Electoral and fair; Nelson Mandela signed into law the 1996 Commission. The independence of these

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institutions is guaranteed and protected the time of appointment is disqualified integrity of its electoral processes. Over Preferrably, the method of funding must be by the Constitution which provides in this from appointment as a member of the the years, guiding principles have been regulated by law.14 regard that they are independent, and Commission.7 The names of candidates developed internationally for election subject only to the Constitution and the law, are solicited from the general public and administration. These guiding principles Impartiality requires an EMB to function and that they must be impartial and must the selection process is managed by open include the following: 10 impartially by treating “all election exercise their powers and perform their and representative panel consisting of the participants equally, fairly and even function without fear, favour or prejudice. Chief Justice of the Constitutional Court, • independence handedly, without giving advantage to any who chairs the panel, representatives of • impartiality political tendency or interest group”.15 For The Constitution also calls upon organs the Commission on Gender Equality, the • integrity the purpose of establishing the integrity of the state to assist and protect these South African Human Rights Commission • transparency and credibility of electoral processes and to institutions to ensure their independence, and the Public Protector.8 The panel calls • Efficiency and effectiveness promote universal acceptance of election impartiality, dignity and effectiveness. for public nominations, compiles a short-list • Service –mindedness results, an EMB must operate without Furthermore, all persons and organs and conduct public interviews of the short • Professionalism interference and perceptions or allegations of state are prohibited from interfering listed candidates, and thereafter makes of manipulation or bias.16 with the functioning institutions. The its recommendation s to a committee of There is yet to be an agreement independence of these institutions is the National Assembly. The Committee internationally on what constitutes To enhance the credibility of the further strengthened by the fact that they will in turn make recommendations to the an independent EMB. This has been electoral process, an EMB must are accountable to the National Assembly National Assembly which must approve the attributed to the fact that independence function transparently but must do so and not to government. The separation recommended candidates by a resolution is normally viewed as consisting of in a manner that will always safeguard of powers between judiciary, the adopted with a supporting vote of a two elements, formal and substantive its independence. In this regard, it executive and the legislature is also firmly majority of members. The panel is required independence.11 Formal independence is important for EMB to consult and entrenched in the Constitution. by law to act in accordance with the requires the independence of an EMB to communicate with relevant stakeholders, principle of transparency and openness and be protected in the constitution or the in particular political parties, on the The Electoral Commission of South make its recommendations with due regard law. Such constitution or law should also electoral process.17 Africa to a person’s suitability, qualifications and provide for the size, composition and The Electoral Commission of South Africa experience.9 membership tenure of an EMB as well as Finally, an EMB must perform its functions (Commission) was established in 1997. It the appointment and removal procedure of efficiently, effectively and with utmost consists of five members, one of whom is The formal appointment is tehn made by its members.12 professionalism, and with due regard to a judge. Ton engender public confidence the President of the Republic, who also the needs of the electorate. This means in the Commission, the appointment designates the chairperson and deputy Substantive independence on the other that it should manage elections cost procedure of members of the Commission chairperson. A member of the Commission hand requires independence in decision effectively yet competently. Electoral is transparent. Moreover, the Constitution can only be removed from office by the making and functioning, in other words, staff must be properly trained in electoral recommends the involvement of civil President if the National Assembly has independence in action, which in my view processes. Inadequate training, coupled society in the recommendation process of adopted a resolution calling for that is more important than formal or structural with unprofessional behavior of electoral members of the Commission. 6 member’s removal. independence. Members of an EMB should officials lead to inefficiency in the perform their functions without being organization of elections and this is often The appointment procedure for the Guiding principles for an Electoral directed or influenced by any person, confused with corruption and fraud which members of the Electoral Commission Management Body authority or political party.13 Functional may lead to the whole electoral process also ensures the impartiality. A person Every EMB has the responsibility of independence also requires and EMB to being discredited.18 who holds a high political profile at ensuring the legitimacy, credibility and be adequately and timeously funded.

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The role of the Electoral System re[presentation system (PR) as its electoral both political parties and the electorate. It candidate nomination process but also There are many electoral systems system for national elections subject to also enables as many parties as possible the integrity of the entire electoral throughout the world and there is it being reviewed after the adoption of to participate in an election. This in turn programme particularly in jurisdictions little consensus as to which promotes the final constitution. In 2003, cabinet enhances voter turnout and enthusiasm that use the PR system. This challenge democratic governance and political appointed a task team to discuss and in the sense that voters are more likely can be addressed through the stability. It is preferable for each country to make recommendations whether this to participate in an election if there are following: the improvement of intra choose a model that best suit its particular system should be retained or not. I had parties that they can strongly identify with. party democracy, the adoption of and conditions, history and political context, the privilege of serving on the task team. For the reasons stated, our Parliament effective enforcement of intra party but that will also contribulte towards the The task team adopted criteria that served decided to retain the PR system. One of code of ethics and the development deepening of democratic governance. as guidelines for an appropriate electoral the questions that each country has to of intra party dispute resolution system, namely, inclusiveness, simplicity, confront when it embarks on constitutional mechanisms. It is held that very few states in Africa legitimacy, fairness and accountability. and legislative reforms is whether its have taken a deliberate effort to redesign Some members of the task team were of electoral system continues to serve its • The phenomenon of politics being their electoral systems in a manner the view that pure PR system meets all democratic interests and challenges. seen as a gateway to resources has that addresses immediate challenges these requirements except accountability. also resulted in the formation of weak of their democratic imperatives such as So as to improve the accountability of Conclusion political parties without any clear accountability, inclusiveness and political elected representatives, they suggested Most countries on the African continent ideology. This has resulted in the stability. that a component of multi-member have established independent EMBs electorate being cynical of politicians constituencies should be added to the and are also looking at the reform of which in turn leads to waning interest Some African states still use electoral current system. their electoral legislation and framework in politics and concomitant decline in systems that are part of the inherited inorder to enhance the credibility, voter turnout. political arrangements left behind by The choice of electoral system in 1994 integrity and legitimacy of their electoral the departed colonial regimes. Some was informed by the spirit and values of processes. These developments must be • The problem of money in politics of these systems, which result in the our constitution, namely equality, multi- encouraged and applauded. At the same especially as it relates to the absence lead to so called “winner takes all”, are party democracy and universal adult time however, there is an emergence of of legislation that regulates private very expensive and have no relevance suffrage amongst others. In my opinion new challenges which if not addressed, funding of political parties and to the contemporary social, economic the current system assists us to achieve will continue to bedevil elections on the disclosure of sources of funding. This and political challenges of a country. In these values. It assists us to achieve continent. These challenges include the has resulted in some political parties some cases, these systems have led our commitment to the value of equality following: or candidates being funded with so to the rejection of the election results in that it ensures that the formation called “blood money” and also using by the losing party and the subsequent of political parties is based on national • Elections in most parts of the continent money to “steal an election”. Tight establishment of a government of national concerns and shared constitutional values take place in an environment in which and enforceable legislation should be unity or a coalition government. These rather than entrenched ethnic or racially political office is seen as a means developed to address this problem. arrangements, whilst necessary for the exclusive interests. In a country with a to access resources. Due to this, restoration of peace in a highly volatile history such as ours, it is important to contenders for political power want • Most elections on the continent are situation, have often resulted in the have a system that will not exacerbate to win elections “at all cost” even if conducted in an environment that is not circumvention of the will of the people. the remnants of racial and ethnic divisions it means employing undemocratic conducive to a free and fair election. that still exist in our society. This system or even illegal means to do so. This An environment in which the ruling In the interim constitution of 1994, assists us to achieve the value of universal normally results in factionalism party often uses state resources to run South Africa adopted a pure proportional adult suffrage in that it is accessible to which in turn affects not only the its election campaign, an environment

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in which the ruling party often uses state resources to run its election campaign, an environment in which the state broadcaster is dominated by the ruling party to the exclusion of other contesting parties. Although some countries have laws that are supposed to regulate these matters, these laws are often ignored with impunity.

• Attacks on freedom of expression in general and press freedom in particular increase every time there an election on our continent. This takes the form of harassment, intimidation and unlawful arrest and detention of media practitioners and members of the opposition in the run up to an election. A review of Election Management Systems- Zimbabwe In a situation where the opposition Justice Simpson Victor Mtambanengwe is not allowed to operate freely, the media is normally clamped down since it is often viewed as a voice of the Introduction opposition. The flip side of this, which Regular free and fair elections are the be provided without conditionalities aimed is something that the media should cornerstone of democracy. For there at influencing the electoral process. The address, is whether it is ethically to be credible elections, it is essential management body’s administrative staff correct for the media to be politically that there is sound management of the must be properly trained to carry out aligned. entire electoral process. The public must their various electoral responsibilities have confidence that the body tasked in an efficient, professional and non- The challenges articulated above are by with running elections is an independent partisan manner. There must be proper no means exhaustive. Until and unless we institution that will carry out its mandate strategic planning and good operational address them, our elections will forever efficiently, effectively, transparently and systems, including effective procurement be riddled with unnecessary conflict and in a completely non-partisan manner management and proper tracking of violence. that is free of political interference. The sensitive electoral materials. There must management body must be adequately also be mechanism for disseminating resourced both in terms of staffing and useful information to participants in funding. Where the State is unable to a timely and systematic manner. The provide adequate financial resources to management body must operate in a the management body, non-State funding transparent manner. It must regularly may be sought but there must be an report to the public by holding meetings assurance that the non-state funding will and using the media to release factual

20 21 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

information on the election process. It to him by the Parliamentary Standing Delimitation of electoral boundaries Voter education must also hold regular meetings with Rules and Orders Committee. The present ZEC must determine boundaries ZEC must conduct voter education and political parties and candidates to provide eight commissioners had to apply to for polling stations, wards (for local must approve voter education materials for information, answer procedural and other become Commissioners and they were only government elections), House of Assembly use by other organisations. questions. appointed after shortlisted candidates were constituencies and Senate constituencies. subjected to rigorous public interviews in Conflict resolution There must be effective systems for Parliament by an assessment panel and Voters roll ZEC must set up multi-party liaison conflict avoidance and dispute resolution. Parliamentarians. The Registrar-General of Voters registers committees at national, provincial and voters but the Constitution provides that district level to try to avoid conflict. Obviously there must be proper financial Legal framework for elections and ZEC must supervise registration of voters management and audit mechanisms for referendums by the Registrar-General of Voters. Section Media monitoring accountability in respect of the use of The law governing elections is the Electoral 18 of the Electoral Act further provides ZEC must monitor the print and electronic public resources. Act [Chapter 2:13] and regulations that in exercising his functions, the media during the election period to ensure made under this Act. The law governing Registrar-General of Voters will be subject that the media provides fair and accurate Appointment and Composition of referendums is the Referendums Act to the direction and control of ZEC. coverage of political campaigning. the Zimbabwe Electoral Commission [Chapter 2:10] and regulations made The body responsible for the management under this Act. The Constitution also provides that ZEC Accreditation of observers of elections in Zimbabwe is the Zimbabwe must compile voters’ rolls and registers ZEC decides which organisations and Electoral Commission (“ZEC”). ZEC is Functions of ZEC and ensure the proper custody and individuals to accredit to act as observers established in terms of section 100B of the The duties and functions of ZEC are set out maintenance of these rolls and registers. during elections and referendums. Constitution of Zimbabwe and operates in the Constitution, the Electoral Act, the in terms of the Zimbabwe Electoral Zimbabwe Electoral Commission Act and ZEC must make voters rolls available to Research Commission Act [Chapter 2:12]. the Referendums Act. candidates, political parties and others on ZEC conducts research into electoral request. matters and make recommendations for Parliament played a key role in the ZEC’s main function is to prepare for, reform of the electoral laws. appointment of the current ZEC conduct and supervise Presidential, Ballot papers and ballot boxes Commissioners. In terms of section 100B Parliamentary and Local Government ZEC must design, print and distribute Public information of the Constitution, the President appoints elections and referendums. It has the ballot papers and must publicly disclose ZEC must keep the public informed about the ZEC Chairperson after consultation obligation to conduct these elections and numbers of ballot papers that have been the entire electoral process including the with the Judicial Service Commission and referendums “freely, fairly, transparently printed. registration process of voters registration, the Parliamentary Committee on Standing and in accordance with the law”. delimitation of electoral boundaries, the Rules and Orders. The Chairperson must It must approve the form of ballot boxes location of polling stations, when voters be a Judge or former Judge of the High The Zimbabwe Electoral Commission Act and procure these ballot boxes. rolls can be inspected, which political Court or the Supreme Court or a person provides that Commissioners and the parties and candidates are contesting qualified to be appointed as such a Judge. Commission’s employees and agents must Polling stations elections and the voting process. exercise their functions in a manner that In consultation with the contesting political The other eight Commissioners, at least promotes conditions conducive to free, fair parties and independents, ZEC must Financing of political parties four of whom must be women, are and democratic elections. decide on numbers and location of polling ZEC must make recommendations to appointed by the President from a list of stations. Parliament on appropriate ways to provide not fewer than twelve nominees submitted It has various other functions as follows: public financing for political parties.

22 23 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

Use of technology of the Commission, in the exercise or supporting or opposing any question Assembly and the Minister; and each of ZEC must develop expertise in the use of performance of their functions. put to a referendum. the political parties that contested the technology for electoral processes. (3) The State and anyperson, body, organ, election or referendum; agency or institution, belonging to or Funding of Commission • As soon as possible after the end of Promotion of co-operation employed by the State, shall afford the ZEC is funded by the State but it does not each financial year the Commission ZEC must promote co-operation between Commission such assistance as may be receive a direct grant from the Ministry must submit to the Speaker of the Government, political parties and civil reasonably required for the protection of Finance; instead it receives an annual House of Assembly, the President and society in regard to elections. of the independence, impartiality and grant through the Ministry of Justice and the Minister of Justice and Legal Affairs dignity of the Commission. Legal Affairs. The approval or the Minister a report on its activities during that Independence of ZEC of Justice and Legal Affairs is required in financial year. There is presently no specific constitutional It should also be noted that both the order to receive donations or grants from provision providing for the independence Constitution and the Zimbabwe Electoral any local or foreign source. The Minister’s In terms of the Third Schedule to the of ZEC except that section 100H provides Act contain provisions barring involvement approval is required before ZEC can Zimbabwe Electoral Commission Act: that the State must make adequate and of Commissioners and its staff in political engage in various transactions such as • Not later than three months after the suitable provision, through legislation activity. raising loans. end of each financial year ZEC must and other appropriate means, to ensure prepare and submit to the Minister of that ZEC is able to exercise its functions The Constitution provides that Thus ZEC is accountable to the Minister of Justice and Legal Affairs a statement under the Constitution efficiently and Commissioners who were members Justice and Legal Affairs and Parliament for of accounts in respect of that financial independently and that ZEC’s staff carry of political parties at the time of their the conduct of its activities. However, ZEC year or such other period as the out their duties conscientiously, fairly and appointment must relinquish that operates as an independent Commission in Minister may direct; independently. membership with fourteen days of their the sense that it must remain scrupulously • It must have its accounts audited and appointment. impartial when running elections and is the auditors must submit its report to Under proposed electoral amendments not subject to political interference or ZEC and the Minister of Justice and the following clause will be inserted in the The Zimbabwe Electoral Commission Act pressure. It must ensure that elections are Legal Affairs; Electoral Act: provides further that no Commissioners conducted in a manner that ensures that • The Minister of Justice and Legal Affairs and no full time employees of ZEC may: those elections will be accepted as being may also require ZEC to obtain from 10A Provisions guaranteeing free and fair. its auditors such reports, statements independence of Commission • hold, or seek appointment, election or or explanations in connection with (1) Every Commissioner and member of nomination to, any elective or political Accountability of ZEC ZEC’s operations, funds and property staff of the Commission shall perform office; In terms of section 12 of the Zimbabwe as the Minister considers expedient and their functions independently. • except in the exercise of his or her Electoral Commission Act ZEC has the ZEC must forthwith comply with this (2) The State and any private person functions as a Commissioner or as an following reporting obligations: requirement. (including a private voluntary employee of the Commission, perform organisation), and any other person, any work for a political party or • As soon as possible after the result The Electoral Environment and the body, organ, agency or institution candidate in connection with an election of any election or referendum has Rule of Law belonging to or employed by the State or referendum; been announced, and in any event no Elections do not take place in a vacuum. or any private person, a local authority • knowingly wear any badge or article of later than six months thereafter, ZEC The conditions prevailing in the country or otherwise, shall not interfere with, clothing that is or is reasonably likely must submit a report on the conduct must be such that it is possible for a hinder or obstruct the Commission, its to be associated with a political party of the election or referendum to the free and fair election to take place. For Commissioners or any member of staff or candidate contesting any election or President, the Speaker of the House of instance, where there is widespread

24 25 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

political violence and intimidation, political parties will not be able to campaign freely and voters will not be able to freely exercise their right to vote. Thus it can be said that violence is a grave threat to free and fair elections. It is incumbent upon the law enforcement agencies and the courts to rigorously and impartially enforce the laws prohibiting the use of violence and intimidation so that peaceful conditions can be restored to enable free and fair elections to take place. The rule of law requires that all the laws relating to impermissible forms of conduct in relation to elections be properly and impartially enforced against all miscreants, immaterial of the political affiliations.

Effective mechanisms for conflict avoidance and conflict resolution are extremely important.

Legal and Regulatory Framework

Analysis by Region of States compliance/adherence to constitutional provisions and principle governing Elections - West Africa.

By Kwame Karikari3

In November, 2011, The Gambia held report of a fact-finding mission as well presidential elections as prescribed by as reports of a regular monitoring of the the country’s constitution. However, in an political situation and preparations towards action that was rare in the history of the the elections undertaken by the regional ECOWAS, the Commission of the regional body’s Early Warning System. inter-state organization boycotted sending to the Gambia an Observer Mission to The Commission’s statement, issued two monitor the elections. The ECOWAS days before the elections on 24 November, Commission took the action following the said the body had taken this drastic action

3 Executive Director, Media Foundation for West Africa, Accra, Ghana.

26 27 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

“because the preparations and political farcical and contemptuous of norms of YahyaJammeh led a military coup to oust “Demand for a Level Ground For Multi environment for the said election are practice established by the regional body, the government of President Jawara. party Contest in the Gambia to Prevent adjudged by the Commission not to be ECOWAS. Moreover, while particular events Political Exclusion of the Opposition” conducive for the conduct of free, fair and in elections in different countries in the Two years later the military regime in the national assembly elections.(2) transparent polls.”(1) region may not attract the wrath of the initiated processes of restoring democratic The four-page statement, proposing a ECOWAS or rebuke from any international multi-party system of government. It 14-point recommendation for reforms to According to the Commission, agency, they do provide examples of lifted partially the ban it had imposed the Independent Electoral Commission “Unfortunately, the reports of the fact- challenges to the maintenance of and on political parties, by allowing some of (IEC) and the ruling party, sums up the finding mission and the Early Warning adherence to the rule of law. the pre-coup existing parties to contest atmosphere of frustration: “That the System paint a picture of intimidation, but banning others from the elections. opposition has been pushed into a vicious an unacceptable level of control of the This paper attempts to provide an In the meantime, Lt. Jammeh, following corner to either boycott elections and be electronic media by the party in power, overview of some of the key issues of the the example of other former junta damned or participate in elections and the lack of neutrality of state and para- challenges to the upholding of the rule of leaders turned “democrats” in the region be damned and caught in this loss-loss statal institutions, and an opposition and law in elections in West Africa. The paper (Rawlings in Ghana, Obasanjo in Nigeria, situation it would be disingenuous to an electorate cowed by repression and uses the 2011 Gambia elections and some etc.), formed his own political party to continue to contest every election with our intimidation. In the circumstance, the event or cases from other countries as an contest the elections and legitimize his hands and feet tied and then come out ECOWAS Commission is of the view that example of the problems of the rule of law political authority. Since 1996 the Gambia complaining of electoral misconduct.” the conditions prevailing in the country in elections and electoral processes in a has had, as prescribed by the 1997 do not meet the minimum standards fledgling democratic environment. constitution, four five-yearly presidential According to the opposition parties, in set under the (ECOWAS’s) Protocol on and Parliamentary elections under the the Gambia, “the greatest threat to the Democracy and Good Governance for the The Gambia incumbency of President Jammeh. building of a genuine electoral system is conduct of elections, and has, therefore, The Gambia became independent from the abuse of incumbency and the complete decided to exercise the discretionary Britain on 18 February, 1965 under Each of these elections has been merger between party and state that powers conferred on the Commission’s a constitutional monarchy within the conducted under circumstances that have enables the ruling APRC party to exercise President under the Protocol to stand down Commonwealth until 1970 when it became skewed the rules and processes to the complete monopoly over state resources the ECOWAS Observer Mission.” a republic with Sir DawdaJawara of the benefit of Jammeh’s Alliance for Patriotic and the media and their utilization to its People’s Progressive Party (PPP) as the Re-Orientation and Construction (APRC) political advantage.” The Commission’s damning vote of no- first president. Though Jawara’s rule party, and to the abject disadvantage of confidence in the Gambian electoral was characterized by a virtual one-party the opposition parties. These are the general conditions, and the system and processes, exposes eloquently dominance of political life, governance government’s contemptuous dismissal of the fundamental condition of an absence was widely considered to be humane The Gambia has separate presidential and the opposition parties’ petition for reforms of the rule of law and the prevalence of and devoid of the brutish repression parliamentary elections. Following the in the electoral system, including measures arbitrariness that characterize the rule that predominated politics in most of November 2011 presidential polls which to curb the incumbent’s arbitrariness of the Gambian government of President contemporary Africa. It was in recognition the ECOWAS Commission boycotted, the and disrespect for the rule of law, that YahyaJammeh. Though it may be said of the country’s political stability and, national assembly elections were also held informed the opposition parties’ boycotting that elections in the Gambia, unlike above all, the human rights record of the on 28 February 2012. Apprehensive that the National Assembly elections in elsewhere in the region, have not ended government that the OAU decided to locate the government would once again not February 2012. in wholesale violent conflicts and civil war, in Banjul, the capital, the headquarters follow laid down rules, as it had shown in the conditions painted by the ECOWAS of the African Commission on Human and previous elections, the seven opposition In an observation report of the November itself, render elections in that country Peoples’ Rights (ACHPR). But in 1994, a Lt. parties issued a joint declaration to 2011 presidential election issued by a

28 29 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

21-member coalition of Gambian civil by the arbitrariness inherent in the arbitrary act meant to weaken the policies and actions, and the right to know society organizations (3), the non- impunity with which the country is ruled, opposition’s campaign and ability to debate what alternative perspectives and ideas governmental organisations affirmed that: than by just the blatant violations of the government positions to the electorate. the opposition parties and other groups “The Coalition is concerned that the legal, laws on elections. In other words, the The Commonwealth Expert Team cited outside government have to offer. The policy and institutional environment in disregard for democratic norms and rule complaints by Gambians indicating cases in Gambian voter is in fact denied the right to the Gambia advertently or inadvertently of law in elections (or in other aspects which “the Public Order Act’s requirements choose freely from among the contesting favours the incumbent than the of national and public life) is founded on for permits from police authorities for parties. Opposition, thus do not generate a level the creation of an environment of fear a range of activities had been unfairly playing field for a free and fair elections.” nurtured over the years by the Jammeh applied and overly restricted the ability of The Gambia represents a case of abject government’s systematic abuses of human the opposition political parties to play and undermining of democratic electoral The catalogue of issues raised by the civil rights, including state-sponsored extra- effective part in public life.” system and process through the society coalition that renders Gambian judicial murders. executive’s open disregard for the rule elections unfair and not transparent, In the 2011 presidential election, the IEC of law. On paper, the legal and policy reiterates the same complaints by the The arbitrariness with which the regime declared just 11 (eleven) days for the framework for elections do not present opposition parties. They include: disregards rules and procedure on campaigning period. Considering the IEC’s much fundamental disagreement, elections issues can be seen in its perceived lack of independence, it is not overall. In practice, however, the system i) Access to public (state-owned and treatment of the so-called Independent strange that many believed the IEC had is denuded of any democratic essence controlled) media; Electoral Commission (IEC). Sections acted on the orders of the president so as and the incumbent ensures that its fine ii) Use of state resources to back the 42-45 of the Constitution provide for to encumber the activities of the opposition principles are made useless. Having incumbent; the establishment of the IEC, and the parties and candidates. The government compromised the independence of the iii) Involvement of armed forces and procedures for the appointments or ensures, against all norms of the right of judiciary, and having subjected the security services (and not the police removal of the commissioners. The freedom of expression and in violation of population at large to a state of abject alone) in the security details of the authority to appoint members is vested in the Constitution’s provisions to give space fear and political impotence, opposition process, even as there have been no the head of state. Members are appointed to all views and shades of opinion on the parties have nearly no room to protest emergency security situations; for a term of seven years renewable for national Gambia Radio and Television and no hope of exacting justice and iv) Use of local government and one more term only. But since 1996three Service (GRTS), that in-between elections fair play. The “loss-loss” situation into traditional structures to influence the chairpersons of the IEC have been opposition parties and voices other than which the opposition has been pushed, voting population in communities; removed and three members have also the government’s own are allowed on the is a near perfect condition for the kind of v) Lack of state funding of parties; been removed. The IEC’s independence state-owned and controlled broadcasting desperation that can tempt an opposition vi) Disregard for the principle of is doubted by many. The Commonwealth service. Moreover, the regime of President to resort to non-democratic (especially separation of powers, thus making observer team for the 2011 Presidential YahyaJammeh has over the years silenced violent) methods for change. the judiciary for instant subservient election stated in its report that, “the all independent media outlets through to the executive; manner of past dismissals of IEC members arbitrary closure of private newspapers Other examples in the region vii) Biases of the electoral commission strongly suggests that Commissioners and radio stations, arrests, detention, Whereas the Gambia represents a toward the incumbent president; and do not enjoy the security of tenure criminal prosecution, and persecution, generalized disregard for rule of law and viii) The blurring of the distinction guaranteed by the Constitution.” (4) including some extra-judicial murders abject incumbent arbitrariness, cases between state functions and (ruling) and forced exile, of independent-minded elsewhere provide examples of attempts party functions. The government’s selective invocation journalists. The regime has thus succeeded at manipulating the law to exclude others. of criminal legislation, such as sedition in denying the electorate the right to Some cases provide examples of the rule The Gambian case is characterized more laws and the Public Order Act, is another debate freely and in public government of law at work in ensuring just resolution

30 31 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

of election-related disputes, while others aggravate – already growing political By the stroke of a pen, a piece of the new constitution. The opposition forces present a complex problem of the rule of tensions, divisions and a general legislation narrowly conceived essentially held otherwise. law versus public/popular sentiment. atmosphere of chaos. with the intent to exclude one person from, and ensure the ascendancy of another This aside, Wade and his party sought (a) Cote d’Ivoire “The political divisions and regroupings to, power through elections serves as a to change the electoral law to lower the Cote d’Ivoire’s well-known descent that follow [the death of Houphouet- catalyst to a convulsion that threatened margin of first-round victory in elections into civil war as a result of problems of Boigny] lead to the emergence of the stability of a whole region. Cote from 51% to a mere 25%. They also succession and electoral disputes raises ethnonationalism which, in its turn, d’Ivoire is yet to recover from the violent sought to introduce, for the first time, so many questions of rule of law and the aggravates the cleavages between Ivorians consequences. the position of vice president. All of these commitments of the political class in an and foreigners and, domestically, between raised suspicions that President Wade and African society to the values and principles the North and the South. The multi-party (b) Senegal his government planned to manipulate the of the rule of law. In the first place, the system, that opens the door to a pluralist Legislation designed to abort fair electoral law and process to perpetuate lack of precision and clarity in the country’s press and an increasingly important public competition threw Cote d’Ivoire into violent their rule. 1960s constitution regarding presidential opinion, is marked by the progressive shift crisis. In Senegal, however, a combination succession, gave rise to an unhealthy of the distinctions between political parties of respect for the rule of law and popular Thus emerged a popular protest contest between the two topmost political towards regional and ethnic identities, mobilization utilizing the rights of freedom movement (Movement du 23 Juin) against office holders that in two decades which is a serious drift from politics.” (5) of expression, saved the country from Wade’s candidacy for the February 2012 developed into myriad and complex descending into arbitrariness and violent presidential election. But in the scheme political difficulties for the country. Bedie wins, with the support of France, conflict in a dispute over the interpretation of things, the dispute over Wade’s the contention for the succession to of constitutional provisions regarding the eligibility to contest for a second term Felix Houphouet-Boigny, the father of the the presidency. To consolidate his grip eligibility of the incumbent president to under the new constitutional provisions nation, ruling under a one-party system on power and hoping to eliminate his contest for another term of office. was submitted to the interpretation of over which he exercised near absolute biggest opponent in the 1995 elections, the Constitutional Court. This course of rule, made no clear arrangements for Bedie resorts to various maneuvers that In 2001 Senegal’s constitution was action was encouraged by the Senegalese succession. In 1990, however, when he compelled all the other major parties changed to reduce the mandate of the people’s confidence in the independence concedes to popular demands and the to boycott the elections. Towards the president from seven to five years. The of the judiciary. Therefore, when the Court continent-wide movement for political next elections in 2000, Bedie passes new provisions also limited the president’s ruled that Wade qualified to contest, the openness, by changing the constitution a law to exclude others: a law that tenure to only two terms. President only recourse that the opposition parties and introducing multi-party political limits qualification for candidacy to the Abdoulaye Wade, elected under the old and the popular protest movement could system. At the same time he creates the presidency to only persons who can prove constitution, served a seven-year term. resort to was to campaign to defeat position of Prime Minister and appoints that both parents are Ivorian. (6) The new Under the new one, he served a five-year Wade. Wade contested, and the popular AllasaneDramaniOuattara to the post. But law is backed in political terms by a notion term ending in early 2012. Wade and his movement, in an informal alliance with the it was also perceived that the President of “Ivorite”, a concept originally supposed Senegalese Democratic Party interpreted opposition parties and under the slogan (Speaker) of the National Assembly, at the to encourage a cultural and political the constitutional changes to mean that “Y’en a Marre” (We’re fed up, in Wolof, the time Henri Konan Bedie, would succeed the nationalism, but now turned into a slogan the president was then eligible to contest dominant language) campaign to defeat presidency in case of a vacancy. for “authentic” nationality and exclusion and serve for another 5-year term, arguing the incumbent president in a free and fair of all other Ivorians who were citizens by that his first seven-year term should be election. Following the death of the first president means other than birth to a native-born discounted because it was under the old in December 1993, the conflict between mother and father. constitution and therefore it did not count That the dispute in Senegal ended in the two top leaders add to – and even against his seeking another term under a peaceful election without the kind of

32 33 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

outcome characterising elections with Two cases arising from the April 2011 validity of gubernatorial elections held a commitment by the political class to similar conditions elsewhere, can be presidential elections give an example of for the choice of governor and deputy the rule of law in the management of attributed essentially to the prevalence the mechanisms established to ensure the governor of Zamfara state in the North- the multi-party political system. It is of the rule of law. That the rule of law rule of law prevails in resolving elections- west part of Nigeria. The Peoples instructive that no petitioner to the courts prevailed in the country is also the related disputes and thereby reinforcing Democratic Party (PDP) “was not satisfied has flouted the decisions of the courts and outcome of a number of factors including: peaceful resolution and prevention of with the result of the election as declared. resorted to extra-legal means to express conflicts.(7) The first case, being a matter … The appellant made allegations of their dissatisfaction or to insist on the i) the independence of the judiciary; concerning the federal presidency, had non-voting in several polling units, righteousness of their case or cause. ii) the strong tradition of freedom of been a petition filed at the Appeals Court, disruption of election, non-conclusion of association; as the law provides. The second, arising election, thumb-printing of ballot papers, Conclusion iii) the strong tradition of freedom of out of a state gubernatorial election, falsification of election results, widespread Nigeria, like many other West African expression, including media freedom; had been a petition filed at the state disruptions of election, irregularities and countries, has in its body politic many iv) a dynamic and active civil society; Governorship Election Petition Tribunal. malpractice.” complex factors and issues with potential v) opposition parties that, even for self- They were thus filed in appeals to the for serious and even violent disruption of interest, show commitment to the rule Supreme Court of Nigeria, as the law At the state level, other cases contending the electoral process, with devastating and of law; and requires, after their respective elections allegations of various kinds of impropriety, destabilizing consequences for “normal” vi) security forces that manifest neutrality tribunals had dismissed the petitions on had been resolved by the courts since the social, cultural, and economic life. The from the political forces. various grounds. current republican constitution came into electoral system, however, has succeeded force. The resort to the legal mechanism in establishing mechanisms of rule of (c ) Nigeria In the first of the two cases, “The appellant for election dispute resolution indicates law to minimize the potential for such By appearance, election contests in Nigeria was aggrieved with the conduct of the both confidence in the independence of developments. Similarly, the Senegalese tend to produce an image of distressful election” and the INEC’s declaration of the judicial system of the country and experience shows that the antidote to the signals full of elements that always GoodluckEbele Jonathan and Mohammed threaten to turn the country into a huge NamadiSambo “as the candidates elected mass of chaos. Reports and rumours of as President and Vice-President of the corruption and other factors inimical to Federal Republic of Nigeria respectively.” the conduct of free and fair elections are The Congress for Progressive Change, the always rife. appellant, whose presidential candidate was former military ruler General Whereas the veracity of such allegations MuhammaduBuhari, contended that, “The are usually not easy to be made, what election was invalid by reason of corrupt is certain is the critical role the judicial practices and substantial non-compliance system of Nigeria plays in resolving with the provisions of the Electoral Act, elections dispute and therefore averting 2010 which substantially affected the resort to illegality by forces with result of the election”’ and that therefore grievances resulting from or related to the winners of the election “were not duly elections. In Nigeria the Appeals Court elected by majority of lawful voters cast at of the Federation sits as the election the election.” tribunal in respect of petitions arising from elections to the presidency. The second case was contending the

34 35 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls tendencies for political actors resorting to Analysis by Region of States compliance/adherence arbitrary and undemocratic methods of to constitutional provisions and principle governing conducting elections and undermining the elections - Southern and Eastern Africa rule of law, lies in confidence in the rule of law and the commitment of civil society in Andre MbataMangu4 the defence of the rule of law. 1. Introduction Notes Since the late 1980s, as the Cold War took advantage of the revolt of the masses 1. ECOWAS Statement on the 24 was closing to an end, the Soviet Empire against the colonial masters to access to Novemeber 2011 Presidential Election collapsed and the masses of African people power and rule to the detriment of the in The Gambia, 22 November 2011. embarked on a relentless struggle against same people who brought them in power.7 Abuja, Nigeria. leaders who had come to power by the 2. Joint Declaration of the Opposition use of force and for decades enjoyed the During the first two decades of Africa’s Parties in the Gambia on the 2012 support of some Western governments independence, the bulk of the conventional National Assembly Elections.” and international financial institutions such Western political and even scientific 3. CSO Coalition on Elections, The as the World Bank and the International discourse favoured the “dictatorships of Gambia. Final Election Observation Monetary Fund (IMF). development” in Africa and argued that a Report. Presidential Election, 24 truly “developmental state” had to be an November, 2011. After decades of military or one party rule authoritarian state led by a modernising 4. Commonwealth Secretariat, Report of in many African countries, the “wind of oligarchy.8 Yet, a truly developmental state the Expert Team on the 24 November change”5 finally came to Africa. Across the was seen to require what Sklar called a 2011 Presidential Election in The continent, especially in some Sub-Saharan “developmental democracy”.9 Gambia. countries, African people got to the streets 5. Jean-Louis Chaleard, Cote d’Ivoire’s and demanded democracy as much Unlike political liberalisation, which is top- Shattered Unity. African Geopolitics, vigorously as they did for independence. down process of change that results into a No. 9. Winter 2003. To quote from Colombian singer Shakira’s formal, cosmetic or superficial democracy, 6. Article 35 of the Constitution of 2000. words at the opening of the first soccer democratisation designs a bottom-up process 7. Supreme Court of Nigeria, Congress world cup held in Africa in 2010, this was of change which is initiated and controlled by for Progressive Change versus “time for Africa” or, as Bourgi and Casteran the masses of the people, and brings about Independent National Electoral labelled it, this was the “Spring of Africa”,6 a genuine democracy.10 The liberalisation Commission (INEC) and 41 Others. which then spared North Africa. Appeal No: SC. 426/2011, Wednesday, 7 On the concept of “second independence”, seeNzongola-Ntalaja, G., The DemocraticMovement in Zaïre 1956-1994, Harare : AAPS, 1994, 1, 13-14; 28th December, 2011; and Supreme Idem “Le mouvement pour la seconde indépendance au Congo/Kinshasa”, Democracy was then considered a “new in Anyang Nyong’o, P., (ed), Afrique: la longue marche vers la démocratie. Etatautoritaireetrésistancespopulaires, Paris: Publisud, 1988, 208-251; Court of Nigeria, Peoples Democratic Ake, Cl., Democracy and Development in Africa, Washington, DC: The independence” or at least a genuine one Brookings Institution, 1996,139. 8 See Gregor, A.J., Italian Fascism and Developmental Dictatorship, Party versus Independent National Princeton: Princeton University Press, 1974, 3-4; Nicol, D., “African as compared to the “first independence”, Pluralism and Democracy”, in Ronen, D., (ed), Democracy and Pluralism Electoral Commission (INEC), en Afrique, Boulder: Lynne Rienner Publishers, 1986, 165; Sandbrook, which happened to be for the elites who R., “Liberal Democracy in Africa: A Socialist-Revisionist Perspective”, in Nyang’oro, J.E., (ed), Discourses on Democracy: Africa in Comparative Abdul’AzizYariAbubakar, Alhaji Ibrahim Perspective, Dar-es-Salaam: Dar-es-Salaam University Press, 1996, 40; Sklar, R.L., “Developmental Democracy”, in Nyang’oro op cit 1-30; 4 Research Professor, College of Law, University of South Africa &Professeur, Sorensen, G., “Democracy and the Developmental State”, in Nyang’oro op Wakkala, and All Nigeria Peoples’ Party Faculté de Droit, Université de Kinshasa cit 31-60. 5 On the “wind of change” in Africa, the “wind of the East”, the “wind (ANPP). Appeal No: SC. 6/2012, Friday, of the West” or the “wind of Africa”, see Mangu, AMB, The Road to 9 Sklar op cit 1-30. Constitutionalism and Democracy in Post-colonial Africa: The Case of the Democratic Republic of Congo, LLD Thesis, Pretoria, University of South 10 For an account of the debate on democratisation and political liberalisation, 17th February, 2012. Africa, 2002, 297-306. see Rijnierse, E., “Democratisation in Sub-Saharan Africa? Literature Overview”, Third World Quarterly, Vol.14, No 3, 1993, 652-653; Qadir, 6 Bourgi, A. &Casteran, C., Le Printemps de l’Afrique, Paris, Hachette, 1991. S., Clapham, C. & Gills, B., “Democratisation in the Third World: an

36 37 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

or democratisation process consisted of Corruption in Africa (ACPCC),13 the African has been growing slowly. The regional norms and constitutional provisions and different phases. The first phase required Charter of Democracy, Elections and “market of constitutionalism, rule of principles governing democratic elections constitutional and legal reforms aimed at Governance (ACGED),14 the Declaration law, and democratic elections” is largely in Southern and central Africa. Almost half promoting human rights and institutionalising on Democracy, Good Political, Economic underdeveloped since these “goods” (24) of the 54 African countries are located the rule of law. During the second phase, the and Corporate Governance (DDGPECG)15 remain “rare” and their lowest “offer” in Southern (15) and Central Africa (9). one party state that dominated the African that governs the African Peer-Review cannot meet the highest “demand” Southern and Central African countries are post-colonial landscape was dismantled and Mechanism (APRM), and the APRM Country expressed by all the people of the regrouped into two main regional economic multipartyism established. The third phase self-assessment.16 Some other norms, continent despite an alarming “inflation” communities, namely the Southern African was characterised by the organisation of principles, standards and guidelines were of norms, principles, standards, and Development Community (SADC) and the regular, free and fair elections in line with adopted by different African regional guidelines. Instead of the “rule of Economic Community of Central African international and constitutional norms, economic communities (RECs). Regional law” being proclaimed in many legal States (ECCAS). principles, guidelines, and standards. Political and sub-regional norms and principles instruments, whether regional, sub- developments that recently unfolded in governing democratic elections in Africa are regional or domestic ones, there has Every year since 2000, at least one Tunisia, Libya, and Egypt in the aftermath of examined somewhere else. Accordingly, been “rule” without “law” in many African country has been going to elections in the “Arab Spring” tend to confirm these three I will not dwell on them. Nevertheless, countries. The “constitutional or normative Southern and Central Africa.22 In 2011, main phases of the process. these norms and principles are generally inflation” rather resulted into what Okoth- Cameroon, the DRC, Chad, Central African incorporated into domestic law. Ogendo labelled “constitutions without Republic, Seychelles, and Sao Tome A number of regional and sub-regional constitutionalism”.17 On the other hand, & Principe went to general elections. norms, principles and standards were African states adopted several the numerous and costly elections held This year, Congo, Lesotho, and more adopted and guidelines developed to constitutional and legal provisions in in Africa have hardly contributed to recently Angola have also held their promote the rule of law and democratic order to promote the rule of law and democratic consolidation. Due to states’ elections. Malawi is expected to go to elections. Some are embodied in democratic elections in Africa. However, non-compliance with norms and principles polls by the end of the year while South conventions and therefore legally binding to borrow an expression well used in governing democratic elections, people Africa, Madagascar and Zimbabwe will on states parties. Some others are international economics, Africa is still have been “voting without choosing” and be voting in 2013. Unfortunately, this contained in declarations that are also struggling to become an “emergent the result of these “elections without paper cannot assess each Southern and morally and politically binding on states state”. The “economy of democracy” democracy” has been “choiceless”, central African state’s compliance with that adopted them. “impoverished”, “cosmetic” democracy, norms and principles governing democratic 13 This Convention was adopted on 11 July 2003 and came into force on 5 August 2007. It promotes free and fair elections and excludes popular “démocratie sans le peuple”, “particracy”, elections. Accordingly, the focus will be on manipulations, corruption, and vote-rigging by ensuring transparency, equity, and efficiency in the management of tendering and hiring The major regional instruments containing procedures in the public service (Article 7 (4)), by providing for the “plutocracy”, or “electocracy”, to borrow the Democratic Republic of Congo (DRC) confiscation of proceeds or property derived from corruption or related offences (Article 16 (1) (b)), for the incorporation of the principle of 18 these norms, principles and guidelines are transparency into funding of political parties (Article 10(b), the proscription from Thandika Mkandawire, Claude with regard to the combined presidential of the use of funds acquired through illegal and corrupt practices to finance 19 20 21 the African Charter on Human and Peoples’ political parties (Article 10 (a), and by promoting the right of access to any Ake, Duverger, and Barack Obama and parliamentary elections held on 28 information required to assist in the fight against corruption and related 11 offences (Article 9,5). Rights (ACHPR), the Constitutive Act 14 This is the most important regional instrument with norms, principles and respectively. November 2011. The DRC is the largest standards governing elections. The ACDEG was adopted on 30 January 12 2007 and came into force on 15 February 2012. Of its 15 states that of the African Union (AU), the African had deposited their instruments of ratification when it came into force, and most densely populated country in three were from Southern Africa (Lesotho, South Africa, and Zambia) Convention on Preventing and Combating and another three from Central Africa (Cameroon, Chad, and Gabon) Against this background, this paper the region. Apart from belonging to both Africa. These countries were therefore formally bound to comply with its provisions when organising their elections. 15 This Declaration was adopted by the AU Assembly of Heads of State and reflects on States’ compliance with regional Southern and Central Africa as a member Government in Durban, South Africa, in July 2002, to govern the work Introduction”, Third World Quarterly, Vol. 14, No 3, 1993, 416-436; Mangu of the APRM. The APRM was established later as a voluntary mechanism op cit 294-297. to assess and make recommendations to improve governance among of SADC and ECCAS respectively, the DRC 11 Adopted in June 1981 in Nairobi, Kenya, and entered into force in October 1986. AU member states participating in the New Partnership for Africa’s 12 In the Preamble to the AU Constitutive Act, Heads of State and Development (NEPAD) and that had also adhered to this mechanism. All 17 Okoth-Ogendo, H.W.O., “Constitutions without Constitutionalism: also belongs to Eastern Africa as a member Government of the Member States of the AU held that they were these instruments contained norms, principles and standards on democracy Reflections on an African Political Phenomenon”, in Shivji, I.G., (ed), State “determined to promote and protect human and peoples’ rights, to and good political governance and therefore to free and fair elections. AU and Constitutionalism: An African Debate on Democracy, Harare: SAPES, consolidate democratic institutions and culture, and to ensure good member states participating in the NEPAD and that adhered to the APRM 1st Edition, 1991, 3-25. of the Common Market of Eastern Africa governance and the rule of law”. A relationship was therefore made are also required to comply with them. Some of these countries belong to 18 Mkandawire, T., “Crisis management and the Making of ‘Choiceless between democracy, human rights and the rule of law. This also derives the Southern and Central African sub-regions. In support of good political democracies’”, in Joseph, R., (ed), State, Conflict and Democracy in Africa, from the AU objectives and principles. The AU objectives are inter alia governance, they agreed to ensure the effective functioning of parliaments Boulder & London: Lynne Rienner Publishers, 1999, 119-135. (COMESA). to “promote democratic principles and institutions, popular participation and other accountability institutions, including parliamentary committees 19 Ake op cit 130, 132, 137. and good governance” (Article 3 (g)) while one of its major principles is and anti-corruption bodies, and the organisation of regular, free and fair 20 Duverger, M., La démocratie sans le peuple, Paris: Armand Colin, 1976. “respect for democratic principles, human rights, the rule of law and good elections. Regional guidelines were also developed to govern elections. 21 Obama, B., The Audacity of Hope. Thoughts on Reclaiming the American governance” (Article 4 (m)). 16 Adopted in 2004. Dream, New York: Vintage Books, 1st edition, 2008, 375. 22 See the table at the end of the paper.

38 39 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

The DRC went to polls in a particularly Ronen pointed out that “Defining inclusive suffrage, and right to run for Shivji regretted that democracy was difficult political, economic and financial democracy is a challenge”.25 Many writers office, freedom of expression, alternative frequently, if unconsciously, conflated context. It is currently confronted by a have spent their scholarly lifetimes information and associational autonomy.31 with its liberal form, parliamentary complex armed conflict, which is due to a teasing out the subtleties and nuances In a polyarchy, “citizenship is extended or multiparty-system and with multifaceted rebellion on the one hand and associated with democracy. The result of to a relatively high proportion of adults, constitutionalism, individual rights and a foreign aggression on the other hand. those endeavours remains the absence and the rights of citizenship include the freedoms rather than interrogated as a of universally accepted definitions and opportunity to oppose and vote out the form of struggle and the mode of politics of This is not definitely a case of a good a concept that is still highly contested highest officials in government”.32 the large majority of the working people.37 practice to be emulated with regard in analytical, political, and ideological to respect for the rule of law and discourse.26 In Sorensen’s view, Dahl’s notion Whilst minimalist scholars define democratic elections. Nevertheless, it of polyarchy has three elements: democracy as a process and a set is a representative case of the region’s Depending on the scope of democracy, competition for government power; of institutions and focus on political experience with elections and there may two major conceptions of democracy may political participation in the selection of democracy emphasizing individual and be more to learn from the rule than from be identified, namely the minimalist and leaders and policies; and civil and political political rights, maximalist conceptions those exceptions that exist. Lessons and maximalist conceptions.27 The clue to rights.33 In minimalist terms, democracy concentrate on the substance and values findings as well as recommendations in understanding democracy is based on this is synonymous with competitive, of democracy, the most prominent relation to DRC’s compliance with regional vital distinction.28 multiparty democracy, and elections. among them being social equality, and on norms and constitutional principles It is representative democracy, also collective and socio-economic rights.38 governing democratic elections may Minimalist conceptions are based on labelled “Western” or “liberal” democracy”. be relevant to other African countries institutions of government and related According to Sandbrook, it is “a political Maximalist scholars such as Ake advocate and contribute to the promotion and institutions such as political parties and system characterized by regular and free a social democracy that places more consolidation of democracy in Africa. pressure groups, elections and the rule elections in which politicians organized emphasis on concrete political, social, However, prior to embarking on this of law. They are basically procedural, into political parties compete to form the collective and economic rights, as opposed reflection, it is worth revisiting briefly the formal, and institutional. Democracy is government, by the right of virtually all to a liberal democracy that emphasises key concepts of democracy and elections defined as a specific political machinery of adult citizens to vote, and by guarantees abstract individual and political rights.39 and the relationship between them. institutions, processes and roles.29 of a range of familiar political and civil Social democracy is a popular, participative The notion of procedural or institutional rights”.34 and substantive democracy.40 The 2. Democracy and Elections in democracy is of the sort found in Robert concept of “popular participation”, which Africa Dahl’s concept of polyarchy.30 According Amin argues that in minimalist terms, is associated with civil society, became Democracy and elections are interrelated to Dahl, polyarchy in a political order democracy privileges individual and central to the discourse on democracy concepts. Nwabueze pointed out that is characterised by seven institutions, political rights over collective and socio- and development in Africa.41 Maximalist “No word is more susceptible of a variety all of which must be present. These are economic rights and the rights of the definitions of democracy are in many ways of tendentious interpretations than elected officials, free and fair elections, minority (bourgeois) over those of the attractive and contain a far broader notion democracy”.23 There is a widespread people.35 Glaser also blamed the Western of “good government” or “good society” 42 agreement that it is “a good thing”. 25 Ronen, D., “The Challenges of Democracy in Africa: Some Introductory “formal democracy” for being “irretrievably than the minimalist ones. However, Observations”, in Ronen op cit 1. 26 See Hoffman, J., State, Power, and Democracy: Contentious Concepts in The adjective or epithet “democratic” Practical Political Theory, Sussex, Wheatsheaf Books, 1988, 31; Wiseman associated with individualism, formalism they too are not immune to criticism. op cit 7-8. 36 almost inevitably connotes praise, while 27 See Nyang’oro, J.E., “Discourses on Democracy in Africa: an Introduction”, and reformism. in Nyang’oro op cit X; Wiseman op cit 7-14; Sklar op cit 166; Shivji, I.G., Commentary”, in Nyang’oro op cit 270. 24 “State and Constitutionalism: A New Democratic Perspective”, in Shivji op 37 See Shivji, I.G., Fight My Beloved Continent: New Democracy in Africa, “undemocratic” implies censure. cit 27-69. Harare: SAPRES Books, 2nd Edition, 1992, 2; Idem “Contradictory Class 28 Hinden, R., Africa & Democracy, Encounter, 1963, 6-8. 31 See Dahl Democracy and Its Critics op cit 220-224; Wiseman op cit 8. Perspectives in the Debate on Democracy”, in Shivji op cit 254-255. 29 Ronen, D., “The State and Democracy in Africa: Some Introductory 32 Idem. 38 Glaser op cit 251. Observations”, in Ronen op cit 200. 33 Sorensen op cit 42. 39 Ake op cit 132-134. 23 Nwabueze, B.O., Constitutionalism in the Emergent States, London: C. 30 See Dahl, R.A., Polyarchy: Participation and Opposition, New Haven CT, 34 Sandbrook op cit 137-138. 40 See Ake op cit 137, 139; Shivji “Contradictory Class Perspectives” op cit Hurt & Co, 1973, 1. Yale University Press 1971, Idem Democracy and Its Critics, New Haven 35 Amin, S., “The Issue of Democracy in the Contemporary Third World”, in 254-255; Idem Fight My Beloved Continent op cit 2. 24 Wiseman, J.A., Democracy in Black Africa. Survival and Revival, New York, & London: Yale University Press & New Delhi: Orient Longman Ltd, 1989, Nyang’oro op cit 64-70. 41 Nyangor’o op cit XII-XIII. New York: Paragon House Publishers, 1990, 4. 220-224; Sorensen op cit 42; Wiseman op cit 8. 36 Glaser, D., “Discourses of Democracy in the South African Left: A Critical 42 Wiseman op cit 9.

40 41 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

Wiseman argues that “there is no prospect Cold War, democracy was reduced to the and elections no matter how they were 3.1 Legal and Institutional Framework whatsoever of any African state fulfilling crude simplicity of multiparty elections to organised would not take long to be The legal framework of the DRC 28 the total range of aspirations contained in the benefit of some of the world’s most disappointed.51 In Africa as Asia and South November 2011 elections consisted of the a maximalist conception of democracy”.43 notorious autocrats who were able to America, for instance, experience has Constitution, the Electoral Act, Guidelines parade democratic credentials without shown that elections can co-exist with from the National Independent Electoral Glaser also criticises the maximalist reforming their repressive regimes.47 systematic abuses of human rights and Commission (NIEC) as well as international conceptions of democracy for their disenfranchisement of large segments norms, principles and standards. emphasis on social equality, substantive According to Olukoshi, the embrace of the population and authoritarianism democracy, and collective rights to the of dubious electoral and political may tie the knot with elections and According to the 2006 DRC Constitution, detriment of formal, legal equality, formal arrangements on the grounds that, at this multipartyism and even often does so.52 the president is elected directly by the democracy and individual rights. stage of Africa’s development, it is the only African people are not interested in any people for a 5-year term renewable once. outcome that can be realistically expected kind of elections, but in competitive, free The election is held at least 90 days before According to Glaser, civil liberties and is very problematic.48 and fair or democratic elections. These the end of the term of the incumbent political pluralism are indispensable to any elections, which would allow legitimate president. If no candidate obtains an social order claiming to be democratic and As for Bratton and Posner,49 formal leaders to govern, should be based on outright absolute majority (more than should not be judged or jettisoned on the procedures for elections do not create international as well as in domestic legal 50%) of the total number of the votes, basis of instrumental criteria. 44 Therefore, a democracy. It would also be wrong norms, principles and standards. They a second round is organised. Only the democracy as a system of government to reduce democracy to multipartyism. should be held in a context respectful two candidates who obtained the highest includes institutions, principles, individual, This is not to suggest that elections of human and peoples’ rights and their number of the votes participate in this civil and political rights championed by and multipartyism would not matter for outcome should also be the promotion of run-off election and the winner is elected minimalist scholars and also values, democracy. these rights. It is against this background president. This provision was amended on collective, and socio-economic rights that the DRC 28 November 2011 elections 20 January 2011 to allow for the election defended by maximalists. In our modern era, one can have elections may be assessed. of any presidential candidate who would or multipartyism without democracy, but obtain the majority vote during the first In the Western conventional intellectual it is difficult, if not impossible, to consider 3. The 28 November 2011 elections and only round. and political discourse, democracy is that modern democracy can go without and Democratic Republic of Congo (DRC)’s compliance with inter- very often and abusively reduced to them.50 The presidential election takes place on the national, constitutional and legal two components, namely elections norms, standards and principles same day as the election of the members and multiparty system. Elections and To coin a metaphor from Ben Yahmed, governing democratic elections of the National Assembly also called democracy have become virtually elections and multipartyism are necessary On Sunday 28 November 2011, for the “National Deputies”. Like the president, synonymous in Western political thought ingredient of democracy like salt is to the second time under the Constitution which they are elected for 5 years. However, and analysis.45 meal in the kitchen. However, salt alone was adopted by referendum from 18 to there are directly elected by proportional does not make a meal. Ben Ahmed warned 19 December 2005 and promulgated on representation by the people in their In the liberal conception, “elections are that those African peoples who would 18 February 2006, the DRC organised a different constituencies, as determined the defining institution of democracy”.46 content themselves with multipartyism presidential election and the election of the by the Electoral Act although they hold a More recently, in the hurry to globalise members of the National Assembly, which national mandate. 47 Ake op cit 130. democracy in the after the end of the 48 Olukoshi, A., “State, Conflict, and Democracy in Africa: The Complex is the second house of Parliament. Process of renewal”, in Joseph op cit 456. 49 Bratton & Posner op cit 378-379. 50 See Bauer, G., “Challenges to Democratic Consolidation in Namibia”, Article 1 of the Constitution also provides in Joseph op cit 439-441; Bratton & Posner op cit 379; Conac, G., 43 Idem. “Introduction”, in Conac, G., (ed), L’Afrique en transition vers le 44 Glaser op cit 251. pluralismepolitique, Paris : Economica, 1993, 5; Idem “Etat de droit et that the DRC is a democratic state. Article 45 See Joseph op cit 9-11; Bratton, M. & Posner, D.N., “A First Look at Second démocratie”, in Conac op cit 492; Glaser op cit 249-250; Mangu op cit 199; Elections in Africa with Illustrations from Zambia”, in Joseph op cit 378; Nzongola-Ntalaja, G., “The State and Democracy in Africa”, in Nzongola, 51 Gonidec, P.F., “Démocratie et développement en Afrique: Perspectives 7 recognises multipartyism and the Haberson, J.W., “Rethinking Democratic Transitions: Lessons from Eastern G. & Lee, M., (eds), The State and Democracy in Africa, Harare: AAPDS internationales ou nationales, Afrique 2000, No 14, 1993, 57-58. and Southern Africa”, in Joseph op cit 39. Books, 1997, 15; Pelletier, J., “L’Afrique en movement”, in Conac op cit 52 Conac “Etat de droit et démocratie” op cit 492. 46 Bratton & Posner op cit 378. 477.

42 43 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

opposition. Sovereignty belongs to the Elections are national, provincial, urban international or national, and candidates’ candidates and parties have equal access people who exercise it through elections and local. They are governed by the or parties’ witnesses in the voting stations to the public media. It is governed by a or referendum. The vote is secret. Every Electoral Act passed by Parliament in are registered with and accredited by the specific Act of Parliament. adult Congolese citizen (aged 18 at least) accordance with the Constitution. The NIEC, which provides guidelines regarding is entitled to vote on condition that he is a Electoral Act determines the number of the conduct of elections and the electoral Electoral guidelines are adopted by the regularly registered voter. Citizens who are the members of the National Assembly campaign. NIEC in relation to the management of the imprisoned, mentally ill, abroad and those and the Senate that are the two houses of electoral process. They should comply with who have been deprived of their political Parliament, the number of the members of Provisional results of the elections are the Constitution, the Electoral Act, and the rights are not entitled to vote. the provincial, rural and local assemblies announced by the Bureau of the NIEC. Act of Parliament that governs the NIEC. and their respective constituencies. The NIEC is autonomous and apolitical and Election is also provided for the Senators, should report on its work to the National In line with Article 4 (p) of the AU the members of the provincial assemblies As far as the institutional framework is Assembly. It replaced the Electoral Constitutive Act, Article 64 of the (Provincial Deputies), and the governors concerned, apart from the administration, Independent Commission (EIC) which Constitution outlaws the coup d’Etat and and vice-governors of the 10 provinces of police, army and the security services organised the first elections under the any unconstitutional change of government the Republic. Kinshasa, which is the capital that also play a role during the elections, current DRC Constitution in July 2006. while enshrining the “right to revolution” or city, has the status of a province. Like the Constitution provides for three major rebellion against anyone who would seize the president and the National Deputies, institutions to ensure democratic elections, In terms of Articles 160 to 163 of the power and rule the country in violation of the Senators, the Provincial Deputies, namely the National Independent Electoral Constitution, the Constitutional Court is the Constitution. Any attempt to overthrow the Governors and vice-Governors are Commission (NIEC) (Article 211), the the highest court in the country. It deals the constitutional regimes constitutes an elected for a five-year term. The Senators, judiciary (Article 161) and to some with all constitutional matters and is also imprescriptible crime of high-treason. Governors and Vice-Governors are elected extent the High Council for the Media and entitled to resolve electoral disputes and by the Provincial Deputies who are Communication (Article 212). confirm the provisional results proclaimed 3.2 28 November 2011 Elections themselves elected for the people. They by the Bureau of the NIEC. The decisions A number of steps were taken in may be independent or nominated by their The NIEC is mandated to manage the of the Constitutional Court are final and preparation for the 28 November 2011 parties. electoral process from voters’ registration binding. Prior to elections, the Court elections. The first step was the adoption to the proclamation of the provisional confirms the list of the provisional lists of the Act of Parliament related to the The Senators represent the provinces results. An Act of Parliament provides for of the candidates established by the NIEC, its organisation and functioning.53 but enjoy a national mandate unlike the the organisation and the functioning of Bureau of the NIEC and deals with related This Act took a long time to be adopted by Provincial Deputies whose mandate is a the NIEC. In terms of this Act, the NIEC is disputes. According to Article 223 of Parliament as both the majority and the provincial one. The governor presides over organised at the national, provincial and the DRC 2006 Constitution, pending the opposition disagreed on the composition of the provincial government and appoints local levels. It is presided over by a Bureau establishment of the Constitutional Court, the Bureau of the NIEC. its members. He is assisted by a Vice- consisting of seven members elected for its functions are exercised by the Supreme Governor elected on the same ticket. The 6 years by the National Assembly, four Court of Justice. The second step was the constitutional provincial government is accountable to from the majority and three from the amendment of 20 January 2011 that the provincial assembly in the same way opposition. The Bureau is responsible Another institution that is established provided for the election of the president as the national government is accountable for the determination of the number and to promote democracy and plays an by a simple majority of the votes. The to the National Assembly. The provincial places of voting and counting stations important role in the organisation of third step was the inauguration of the assembly may vote out the provincial and also appoints their members. It democratic elections is the High council NIEC. The majority in Parliament rejected government or one of its members by publishes the list of registered voters and for the media and communication (Article Senator Jacques Djoli who was among adopting a motion of no-confidence. candidates. Electoral observers, whether 212). The Council is to ensure that all the 53 Act No 10/013 of 28 July 2010.

44 45 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

the three people nominated by The fourth step in preparation for the 28 November Attempts for the opposition to rally observers announced the victory of opposition the opposition to serve on the 2011 elections was the passing of the Electoral around a single presidential candidate leader Etienne Tshisekedi. The contestation Bureau. Senator Djoli was a Act by Parliament.54 The Bureau of the NIEC could against the incumbent president had begun. Despite several reports on massive member of the MLC (Mouvement then adopt and publish its guidelines, appoint the failed. electoral irregularities in many areas, the NIEC de Libération du Congo), which members of its personnel at all levels, register provisionally announced the results of the 28 was the leading opposition the candidates, publish their lists prior to their As for the elections of the National November 2011 presidential election on Friday party. The majority rejected his confirmation by the Constitutional Court, order the Assembly, 18478 candidates (2244 9 December 2011. Without any surprise, the nomination, as they thought he electoral material, and supervise its dispatching to female candidates only) were incumbent President Joseph Kabila was declared 56 would be an obstacle to the re- the voting stations in the country. registered. Most candidates were the winner with 48, 95%. He was followed by election of their leader, President nominated by the 423 political parties opposition candidates Etienne Tshisekedi (32, Joseph Kabila. The fifth step was the confirmation by the Supreme that were then registered in the 33%), Vital Kamerhe (7, 74%), and Léon Court of the lists of the candidates to the presidency DRC. The Electoral Act provided for KengowaDondo (4, 95%). The remaining On the other hand, the opposition and the National Assembly. Some were independent a 30-day electoral campaign that candidates scored less than 2%. rejected the nomination of candidates but the overwhelming majority ended a day before the election on 28 Reverend Daniel NgoyMulunda represented their political parties. November 2011. PROVISIONAL RESULTS OF THE who was likely to lead the NIEC. An interesting development was PRESIDENTIAL ELECTION57 LIST OF PRESIDENTIAL CANDIDATES55 They alleged that he originated that shortly before the beginning of No Candidates’ Names Votes Percentage Cand. No Candidates’ Names Political Affiliation from the same province the electoral campaign, President 01 Kabila Joseph 8.880.944 48, 95% 01 AndekaDjamba Jean ANCC (Alliance des (Katanga) as the incumbent Nationalistes Croyants Joseph Kabila appointed the 02 Tshisekediwa Mulumba 5.864.775 32, 33% Congolais) Etienne president Joseph Kabila who judges of the Constitutional Court 02 BomboleIntole Adam Independent 03 KamerheLwaKanyinginyi 1.403.372 7, 74% was running for a second term. without consulting with the judicial Vital 03 Kabila Joseph Independent (But They further alleged that he Leader of Presidential commission as provided by Article 04 KengowaDondo Léon 898.362 4, 95% Majority) was a founding and remained 82. These judges were sworn in later 05 MbusaNyamuisi Antipas 311.787 1, 72% 04 KakeseMalela François URDC (Union pour an influential member of the Nicefort le Réveil et le by the president during the electoral 06 Mobutu 285.273 1, 57% Développement du NzangaNgbagawe presidential party, namely the Congo) campaign. François Joseph 05 KamerheLwaKanyinginyi UNC (Union 07 AndekaDjamba Jean 128.820 0, 71% PPRD (Parti pour le Progrès, la Vital NationaleCongolaise) 08 BomboleIntole Adam 126.623 0, 70% Reconstruction et la Démocratie), 06 KashalaLukumwena URC (Union pour la 3.3 Results of the 28 November Oscar Reconstruction du 09 KakeseMalela François 92.737 0, 51% the leading party of the ruling Congo) 2011 elections Nicefort majority. For the opposition, 07 KengowaDondo Léon UFC (Union des Forces According to the schedule established 10 MukendiKamanaJosué 78.151 0, 43% du Changement) Alex elections would be rigged in by the Bureau of the NIEC, the results 08 MbusaNyamuisi Independent 11 KashalaLukumwena 72. 260 0, 40% favour of the president and the Antipas of the presidential election were to Oscar majority and the NIEC would lose 09 Mobutu UDEMO (Union be announced before those of the The decision of the Bureau of the NIEC NzangaNgbagawe des Démocrates any autonomy and impartiality if François Joseph Mobutistes) parliamentary elections to avoid any was referred to the Constitutional Court for 10 MukendiKamanaJosué Independent Reverend Mulunda was to preside Alex crisis of legitimacy in the highest confirmation and contesting candidates were over its Bureau. Finally, both 11 TshisekediwaMulumba UDPS/Tshisekedi (Union office in the Republic. urged to lodge their complaints with the highest Etienne pour la Démocratie sides agreed to compromise by et le Progrès Social/ Court. On the basis of the reports from the adopting their respective lists and Tshisekedi) 3.3.1 Presidential Election witnesses of his party and several independent the Bureau of the NIEC could be A day after the election, many observers, including those of the Catholic inaugurated and start its work opposition leaders and independent Church, Etienne Tshisekedi rejected the results 54 Act no 11/003 of 25 June 2011 amending Act no 06/006 of 9 March 2006 related to the after weeks of stalemate. organisation of presidential, parliamentary, provincial, urban, municipal, and local elections, RDC Official Journal no 13 of 1st July 2011. 55 See http://www.ceni.gouv.cd (accessed on 30 June 2012). 56 See http://www.ceni.gouv.cd (accessed on 30 June 2012). 57 See http://www.ceni.gouv.cd (accessed on 30 June 2012).

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announced by the Bureau of the NIEC and denied imperium and recognition by the A team of American and British which is accused of invading the DRC, declared himself president. Accordingly, international community. independent observers was invited to help recently pretended to obtain the “truth of he declined to challenge them in the the NIEC retain some credibility of the the ballots” supposedly rigged by President Constitutional Court which the opposition The 28 November 2011 DRC elections elections, especially the parliamentary Kabila and his coalition. The question that already accused of lacking independence ended up creating new political problems elections as the results were still pending. arises is whether the DRC 28 November and being in the service of candidate or aggravating the pre-existing ones rather They were prevented from working on 2011 elections complied with norms and Joseph Kabila. than resolving them. One of the problems their arrival and quickly left the country. principles governing democratic or whether being raised is whether elections still these elections were democratic, free and The only legal challenge came from Vital matter and why people should continue The NIEC denied inviting them as they fair. Kamerhe (Candidate no 5) who also to bother participating in a game which feared that their findings could reinforce rejected Joseph Kabila’s election and seems to be won in advance by the or corroborate the accusations of frauds 4. DRC’s compliance with norms, principles, standards and guidelines congratulated Etienne Tshisekedi on his incumbent president and the ruling party. during the presidential election which was governing democratic elections and victory. According to the Electoral Act, the held the same day as the parliamentary international, regional, and sub- challenge was brought by Mr Kamerhe’s 3.3.2 Elections of the National Assembly elections. This prompted (self-proclaimed) regional responses party, namely the UNC, on Monday 12 Accusations of vote-rigging, corruption of President Tshisekedi to nullify the Any assessment of DRC’s compliance December 2011.58 Without any surprise, the members of the NIEC, subordination parliamentary elections. with regional, sub-regional, and domestic the Court unanimously and unreservedly of witnesses, falsifications of results, norms and principles governing democratic dismissed the UNC’s application on 16 violence, destruction of ballot papers in Nevertheless, the NIEC went on to elections during its 28 November 2011 December 2011.59 The Court went on areas favourable to the opposition and announce the provisional results. PPRD elections can be made in the light of the to confirm the decision of the Bureau of their multiplication in those favourable (President Kabila’s initiated party) and the comments from the Congolese political the NIEC. It proclaimed Joseph Kabila to incumbent President Joseph Kabila, Presidential Majority (MP, Kabila’s coalition) leaders, the findings of many independent the winner of the 28 November 2011 his party and coalition that were aired were proclaimed the winners of these observers, and the attitude of the NIEC presidential election before receiving his before the announcement of the results parliamentary elections with more than and the Supreme Court of Justice. The oath of office as DRC president on 19 of the presidential election intensified and the two-thirds majority in the National main cases of non-compliance will then December 2012. A week later, Etienne aggravated while the nation awaited the Assembly. UDPS, Tshisekedi’s party, came be highlighted as well as international, Tshisekedi addressed the people from his results of the election of the Members of second after PPRD. However, Tshisekedi regional and sub-regional responses to residence in Kinshasa-Limete for his own the National Assembly. These allegations of ordered the elected members of his party those irregularities. official swearing in as “DRC legitimate frauds were confirmed by the overwhelming to resign from the National Assembly president”. majority of independent observers, including or face expulsion. The majority argued 4.1 Congolese leaders and the 28 No- those from the Carter Foundation and the that they could not resign as they would vember 2011 elections Since then, the DRC has two presidents, European Union (EU). They contributed to betray the people who elected them. They The winners, President Joseph Kabila, namely Joseph Kabila, the official and discrediting further the electoral process and therefore decided to keep their seats and his party (PPRD) and his coalition (MP) effective president proclaimed by the the NIEC. At some stage, President Kabila ended up being excluded for remaining in accepted the results of these elections NIEC, confirmed by the Constitutional himself acknowledged that a number of an “illegitimate parliament” dissolved by while the opponents, who were the losers, Court and recognised by the international irregularities had been committed that could the “President”. rejected them as not being free and fair. community on the one hand, and Etienne not, however, impact on his victory. The However, both parties agreed that these Tshisekedi, the self-proclaimed “elected” situation worsened when the NIEC delayed This crisis continues to have its negative elections were fraudulent. and “legitimate” president who has been the announcement of the results in violation consequences on the Congolese politics. of the Electoral Act and its own guidelines. “M 23”, a rebellion movement launched in President Kabila was among the first to 58 UNC v Kabila Kabange Joseph & Electoral National Independent Eastern DRC with backing from Rwandan Commission, 12 December 2011. concede that there were irregularities but 59 Idem.

48 49 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

he was quick to add that they were not of (Reseau national pour l’Observation et la Deputy-President Jacques Djoli came 4.4 The Constitutional Court and the such magnitude as to render the elections Surveillance des Elections au Congo), ROC close to admitting these irregularities 28 November 2011 elections non-credible, especially the presidential (Reseaud’Observation des Confessions when he confessed that he was forced More than 500 disputes were brought election. More recently, responding to Religieuses), CAFCO (Cadre Permanent de to agree with his colleagues within the before the Constitutional Court in the press, the president announced that Concertation de la femme Congolaise) and Bureau to avoid a looming political crisis. relation to the parliamentary elections. a reform of the NIEC was in the pipeline CNJ (Conseil National de la Jeunesse). Many people were disappointed that this 32 members of the National Assembly since a bill had already been tabled in the constitutional law professor and opponent already proclaimed by the NIEC were National Assembly. NOM deployed 12688 observers in 9074 who had given them the image of a man invalidated. This fuelled criticism already voting stations across the country.60 ROC of integrity during his term as a senator levelled at the NIEC. However, the Court Among the political leaders and parties deployed an additional 17.000 observers. finally endorsed fraudulent electoral results did not end there and added to the supporting the president, there were NOM published four documents related and believed what was publicly rumoured irregularities of the 28 November 2011 mutual accusations that ended up in the to these elections. These included a he and his colleagues had taken millions elections by proclaiming some candidates Constitutional Court which had to deal statement on 7 November 2011 assessing of US dollars as a bribe to proclaim of the presidential coalition who were not with the majority of disputes opposing the the pre-electoral situation, a report on the incumbent president the winner of retained by the NIEC and who did not even members of the MP. They too admitted the political environment during the the election. They found his statement appeal to the Court. that the 28 November 2011 elections were presidential and parliamentary elections irresponsible for a man of his calibre and not free and fair and failed to comply with 27 November 2011, an interim report on he himself did not repeat it. After the NIEC, the Court was also blamed norms and principles governing democratic 16 December 2011, and a final report for corruption and unconfirmed reports elections. on 15 January 2011. The overwhelming Another moment when the Bureau alleged that the Court had been ordered majority of observers concurred that the indirectly acknowledged its wrongdoing to dismiss as many applications from 4.2 Independent observers and the 28 electoral process managed by the NIEC in running the elections was during the the opposition as possible and to ensure November 2011 elections was not credible and by 28 November presentation of their annual report to that the president get the majority in Even before the proclamation of the 2011 elections were marred with the National Assembly on 14 June 2012. the National Assembly in order for his results by the NIEC and their contestation numerous irregularities and could hardly Responding to critics on behalf of the government to easily apply his programme by opposition presidential candidates, be considered free and fair by international Bureau, Deputy-President Djoli held that of action. international and national independent and domestic standards. the quality of the Congolese leaders and observers had started ringing the politics was reflected in the November The Bureau of the NIEC also criticised bell about the massive irregularities 4.3 The NIEC and the 28 November 2011 elections. He added that no elections the Supreme Court for proclaiming the that affected the credibility of the 28 2011 elections were perfect and the NIEC was not the candidates in constituencies where they November 2011 elections. Among Despite all the reports pointing on the only institution to be blamed for failure. had proposed the nullification of the these observers were the delegates irregularities that spoiled the presidential election due to several irregularities. from the Carter Foundation, the EU, and the parliamentary elections, the NIEC The National Assembly was also This resulted in a conflict between the the powerful Catholic Church, which is went on to announce the results. responsible for passing the Electoral Act two institutions and confirmed that the present in the entire country and had and inaugurating the NIEC late and for 28 November 2011 elections were not deployed several thousand observers, Responding to a question from a not providing them with the necessary democratic. The NIEC had nevertheless to and Congolese non-governmental reporter of a French Radio, Radio France resources to succeed. This was typical of bow down before the Court on the ground organisations (NGOs), especially the four International (RFI) a few days after political leaders in Africa in general and that its decisions are final and binding. The that formed the National Observation the announcement of the provisional in the DRC in particular where mistakes attitude of the DRC Supreme Court in this Mission (NOM), namely RENOSEC results of the presidential election, NIEC are hardly acknowledged but generally case and many others gives rise to the justified. question whether and why the rule of law 60 NOM, Observation de la Compilation des Elections Législatives du 28 Novembre 2011, Kinshasa, Décembre 2011, 2.

50 51 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

also requires respect for unjust but final • Violation of Articles 6 and 8 of the the number of ballot papers largely • Witnesses of candidates and parties decisions made by the highest court in the Electoral Act by the NIEC for failing to exceeded that of registered voters were prevented from entering some land. publish the lists of registered voters in areas favourable to presidential voting and counting stations. The aim by province and by constituency at candidate no 3 (Joseph Kabila); was to facilitate frauds. The absence 4.5 Cases of non-compliance with least 30 days before the beginning of of witnesses was not a ground for norms governing democratic elections the electoral campaign. In each voting • Possession of unregistered ballot papers nullification of the vote, except if it Numerous cases of irregularities of the station, the lists of registered voters, by some candidates and unauthorised was intentional, which unfortunately DRC 28 November 2011 elections and including their names, places and dates persons. These papers were later seemed to the case in many voting non-compliance with international and of birth, sex, addresses of domiciles or introduced in the system and benefited stations and counting centres; constitutional norms and principles habitual residences had to be published some candidates and their parties, governing democratic elections were at least 30 days before the election especially those of the ruling coalition; • Falsification of ballot papers and reported by political leaders, parties’ day; election results in many areas; witnesses and independent observers. • Thousands of ballot papers were These irregularities included the following: • Intimidation of voters and electoral already earmarked in favour of • Reception of the parcels containing officers as well as destruction of presidential candidate no 3 and some the ballot papers and the results of • Lack of independence of the highest electoral material by some candidates candidates of his party or majority in a the voting in some counting stations court as well as the NIEC despite it and their parties; number of voting stations; several days after the election and being named “independent”. These manipulation or falsification of the institutions remained subject to the • Late opening of the voting stations on • In some areas of his province of origin results during their transfer, in violation incumbent president and to the ruling the election day; (Katanga), presidential candidate of the Electoral Act; party and majority. The majority of Joseph Kabila obtained 100% as if no the members of the NIEC Bureau were • Unavailability of some voting stations registered voter had been sick, dead • Non-publication of the results in the nominated by the president who also where voters were expected to cast or unavailable while the 10 remaining voting stations; appointed the judges of the Supreme their votes and unannounced change candidates scored 0%. The Supreme Court among his supporters in the of venues of some voting stations. As Court61 dismissed Vital Kamerhe’s • Lack of independence and judiciary, without a proper consultation a result, many registered voters were complaint on the ground that the professionalism of public servants in with the Judicial Commission as disoriented and could not cast their Constitution did not prevent any the administration and security services provided by the Constitution. This votes despite the fact that Article 47 of candidate from scoring 100%; (army and police) who felt duty bound appointment also took place in tempore the Electoral Act provided that the NIEC to work for the re-election of the suspecto, just before the electoral should publish the list of voting stations • Some candidates were allowed to outgoing president, the ruling party or campaign, and they were sworn in by a and their addresses 30 days before the campaign after the deadline and around majority; president who was not longer entitled election. This did not allow candidates the voting stations, in violation of the to do it, as he was a presidential and parties to accredit their witnesses Electoral Act; • Lack of independence and impartiality candidate among others. Such judges in time; of the public media, which campaigned were aware that they owed him. • The minutes of vote counting in some for the outgoing president, his party Therefore, they were accountable to • Insufficient ballot papers as compared areas were not signed by competent and coalition while closing their doors the president and to the ruling majority. to the number of registered voters in electoral officers and by the witnesses to the opposition, in violation of the They could not afford to “betray” them many voting stations favourable to of the candidates or parties, in violation Constitution and the Electoral Act; and the only way to pay back was to opposition candidates, in violation of of Article 38 of the Electoral Act; announce their victory; Article 56 of the Electoral Act. However, 61 UNC v Kabila Kabange Joseph & Electoral National Independent Commission, 12 December 2011.

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• Utilisation of state material, financial Against this background, the DRC 28 Cote d’Ivoire. President Kabila was not 14th Summit of Francophone countries to resources and state personnel in the November 2011 elections did not comply Laurent Gbagbo and there was no Security be hosted by the DRC in October 2012. He campaign of the outgoing president, with constitutional provisions and Council permanent member like France therefore proved wrong most Congolese the candidates of his party or coalition, principles governing democratic elections. to push for such an extended mandate of people in the opposition who had predicted also in violation of the Constitution However, how did the international MONUSCO. President Kabila had also learnt that the French president would boycott and Article 36 of the Electoral Act. community, the AU, and regional bodies from Gbagbo’s experience that this could the summit because the DRC failed This could lead to the invalidation of such as SADC and ECCAS react to these amount to political suicide with possible to comply with norms and principles a candidate or a party list. Instead of irregularities? deferment to the International Criminal governing democratic elections. Former enforcing this provision and invalidating Court (ICC). He therefore opposed and French President General de Gaulle is the lists of the ruling party or majority, 4.6 International, regional and sub-re- succeeded in keeping MONUSCO out with reported to have once said that states had the NIEC rather decided to advise gional responses to DRC’s non-compli- the assistance of all UN member states no friends but interests. them without even obtaining their ance with norms, principles, standards represented in the Security Council. compliance; and guidelines governing democratic In a globalised world where the French elections Despite the fact that they were not language was losing to English and other • Posting of campaign messages on Instead of condemning DRC’s non- represented at the highest level during his major foreign languages, it was naïve to public buildings, in violation of Article compliance with international norms inauguration, the world major powers were believe that the French president would 30 of the Electoral Act; and principles governing democratic not interested in having President Kabila not participate in the summit aimed at elections, after a false moment of out as a result of the presidential election preserving or reinforcing the leadership • Destruction of many ballot papers, suspense, the international community and in getting him replaced by some of his country that also required the especially in areas suspected of led by some Western “democratic” leaders nationalist leader who could not preserve promotion of French. The scene was favouring the opposition; and governments rather welcomed the their interests. The Belgian government then set for the UN, the EU, and the results and congratulated President Kabila was the first Western government to visit rest of the international community to • Discordance between the results and his government on successful and the DRC and to congratulate President recognise President Kabila’s re-election which were published by the NIEC exemplary elections, disappointing millions Kabila on his re-election. China, which had despite the fact that the DRC ailed to and confirmed by the Constitutional of democrats worldwide and denying concluded lucrative deals with the DRC meet international and domestic norms, Court with those published in the themselves any authority to give lessons government, did not need to wait as it was principles, standards and guidelines voting stations in order to favour of the on democratic elections. among the first countries to be interested governing democratic elections. The outgoing president, the ruling party or in the continuation of the Kabila regime. observers of the Carter Foundation and the coalition and their candidates; The first response was expected to EU had prepared the ground and left the come from the UN Mission for the DRC, On the other hand, the US under the door open to such a worldwide recognition • Presence in the voting stations of non- MONUSCO, which deployed around 20000 Obama administration did not take long when they held that notwithstanding their authorised persons such as local heads blue helmets in the country, the largest to forget about the reports of independent irregularities, there was nothing suggesting of the administration, and the members UN contingent in Africa since the Cold War. observers, including those from the Carter that there could be change in the results of the security services; The UN declined from playing a crucial Foundation, and pledged to reinforce giving Joseph Kabila the winner of the role in preventing and combatting frauds. its cooperation with his government. presidential election. • Corruption of electoral officers or The Security Council did not even bother French President François Hollande kept their collusion with some candidates, to listen to opposition leaders who wanted the Congolese people in an agonising As for the observers of the AU and sub- particularly those of the ruling party or MONUSCO to be mandated to authenticate feeling of suspense. In August 2012, he regional organisations such as SADC, coalition in many areas. the results published by the NIEC, as finally announced his decision to support ECCAS, COMESA, and ICGL (International this happened with the UN Mission in President Kabila by participating in the Conference on the Great Lakes) concluded

54 55 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

that the 28 November 2011 elections were 28 November 2011 elections. The DRC was have been governed more by the rule to democracy, free and fair elections, and globally free and fair. Accordingly, African therefore considered a case study. of politics and the law of the rulers than good governance. SADC also adopted sub- leaders congratulated President Kabila Since the wind of change brought the by the rule of law. The DRC is a case in regional norms and principles governing and the DRC on such successful elections. one party state to an end in the late point. The country did not comply with democratic elections while ECCAS is still The opposite could be surprising from 1980s, multiparty elections have been international and regional norms as well as lagging behind. Moreover, individual those African organisations that are still regularly held in Africa. If a peaceful power its own constitutional and legal provisions countries did the same at the domestic dominated by authoritarian leaders who do transfer from an incumbent president and principles governing democratic level by adopting constitutional and legal not really believe in democratic elections or a ruling majority to a new one as a elections when it held its presidential and provisions in order to achieve the same while the few democratically elected ones result of an election is not a sine qua parliamentary elections on 28 November objective. The problem is that these keep quiet and tend to compromise. non for democratic consolidation since 2011. However, a number of useful lessons instruments are hardly enforced and there the incumbent may also retain power, can be learnt from these elections in order does not seem to be any effective sanction Yet, democracy cannot prosper in Africa if it nevertheless testifies to the fairness to promote and consolidate democracy for non-compliance. the leaders of the international community, of elections, as Huntington rightly through the organisation of free and fair the governments of some key Western suggested.62 elections not only in Southern and central Second, democratic elections cannot take states, the EU, the AU, and African sub- Africa, but also in the entire continent. place in a context where corruption is regional organisations remain indifferent Southern Africa offers more good practices rampant in the administration, the public to African states’ non-compliance with than Central Africa in this regard. Since First, democratic elections are governed media, the army, police, and other security international and domestic norms and the beginning of the 21st century, elections by law. The organisation of such elections services and where these institutions principles aimed at promoting democratic have already led to regime change in requires a state to comply with general tend to operate as sections of the ruling elections. Southern African countries such as and impartial norms and principles. Such party or majority and remain subject to Lesotho, Mauritius, Malawi, and Zambia. norms and principles already exist at the the incumbent leader and inimical to the Conclusion Even in Namibia, Botswana, and South regional, sub-regional and domestic levels. opposition. Since independence, African people Africa where the power is still exercised The latter cannot feel secured and abide have being participating in elections by an ultra-dominant party, elections have At the regional level, they are embedded by the results when demanding democratic even though democracy did not been free and fair. in the AU Constitutive Act and the change amounts to fighting the state and consolidate on the continent. Elections DDPECG which governs the APRM. The all its institutions and not just contesting are democratic when they enable the Accordingly, not everything or everywhere regional framework related to democratic the ruling party or the incumbent leader. people to be governed by their legitimate is “darkness” in Africa, as Joseph elections in Africa includes the AUCPCC, representatives who will also remain Conrad63 once suggested to the point of the AU Charter on Values and Principles Three, two institutions are critical accountable to them. Such elections are wrongly denying democracy to Africa. of Public Service and Administration,64 for democratic elections. These are to be governed by norms, principles, Unfortunately, good practices are still and mostly the ACDEG. These treaties the Electoral Commission and the standards and guidelines that may be outnumbered by bad practices in some should be ratified and domesticated across Constitutional (Supreme) Court. Both adopted at the international, regional, sub- parts of the continent, especially in Central the continent. Unfortunately, a critical should be autonomous, independent, regional and domestic levels. Africa. Sao Tome & Principle is the only instrument like the ACDEG has so far been impartial and above parties’ politics. Public Central African country with a tradition of ratified only by three states in Southern media should also remain “public”, and The paper reflected on states’ compliance democratic elections. Africa (Lesotho, South Africa, and Zambia) equally accessible to all candidates and with norms and principles governing and three in Central Africa (Cameroon, parties. Arguably, there is no way elections democratic elections in Southern and In Central Africa perhaps more than Chad, and Gabon). This speaks volume can be democratic, free and fair when the Central Africa with reference to the DRC anywhere else on the continent, elections about African leaders’ lack of commitment Electoral Commission and the highest court

62 See Bratton & Posner op cit 378; Joseph op cit 11. 63 Conrad, J., Au Coeur des Ténèbres, Paris: Edition Mille et Nuit, 1999. 64 Adopted on 31 January 2011, but not in force as yet.

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in the land lack independence vis-à-vis all the same old story or recorded message will never be democratic in Africa as community. State’s compliance with norms the candidates and parties, especially the that is music to those African leaders who elsewhere. Any violation of the norms and and principles governing elections is likely incumbent president and the ruling party have specialised in vote-rigging. All of us principles governing democratic elections to spare Africa political violence and to or coalition that tend to use them in order have memorised the verses and chorus of should therefore be vigorously opposed contribute to peace and development to retain power. The privatisation of the the favourite song of these special choirs: and condemned as a war crime or a crime on the continent. Furthermore, despite public media also constitutes a serious “apart from some minor irregularities, against humanity in the African context. the veneration that we might and we violation of the norms and principles elections have been free and fair”. On the In the DRC, as in many other African do have as lawyers for the rule of law, governing democratic elections. basis of these “songs” and even without countries, democratic elections really we should acknowledge that general waiting from them, African leaders are matter for democracy, development and and impartial norms, principles, and Four, elections cannot be democratic when quick to congratulate their peers on their peace. In the long and even short run, standards alone do not make democratic the parties are not on an equal footing. re-election as the old “club” mentality vote-rigging, electoral manipulations and elections or constitute a panacea to all The rules of the game are violated when survived the organisation of African Unity frauds are not beneficial to the winners of electoral problems we are faced with in the incumbent or outgoing president and (OAU) and still prevails within the AU and an election. Africa. Norms, principles, standards, and the ruling party or coalition confiscate African sub-regional organisations. Yet, guidelines and institutions to enforce them state material, financial and human complacency and even indifference should State’s compliance with norms and are definitely required. However, no matter resources in order to run their campaign not be tolerated towards vote-rigging principles governing democratic elections is how perfect and critical it may be, no and retain power. and fraudulent elections which should be in the interest of the people who will then legal framework will ever suffice to make assimilated to “unconstitutional change of be governed by their legitimate leaders. democratic elections. Five, foreign democratic governments, the government” and dealt with accordingly. On the other hand, it does not serve the EU, the AU and sub-regional organisations Foreign and African democratic leaders interests of those who win by vote-rigging, Africa needs political leaders (both in the such as ECCAS, ECOWAS, COMESA, SADC, should find it degrading to compromise electoral frauds or violence. majority and the opposition) who are and ICGL may play an important role in with those who cling to power and refuse committed to democracy, understand the ensuring that African states comply with to be their accomplices in vote-rigging, As a result of “cosmetic” and “choiceless” rules of the electoral game, and accept norms and principles governing democratic electoral manipulations or frauds in elections65 and fraudulent elections to abide by them. Such commitment to elections. Unfortunately, they have so order to defend or preserve their selfish without change, the people may end up democracy and democratic elections is far contributed to undermining them by interests. feeling tired of voting with ballot papers also needed from political leaders at the recognising the leaders who acceded to and rather resolve to vote with their feet, international, regional and sub-regional power or retained it through vote-rigging Six, with the adoption of the African AK47, and machetes as this happened in levels, especially the leaders of the most and violence. Charter on Democracy, Elections and African countries such as Burundi, Cote powerful democratic nations who generally Governance, a new right was added d’Ivoire, Egypt, Liberia, Libya, Kenya, tend to compromise and endorse the Except for Cote d’Ivoire and Zimbabwe to peoples’ rights under the African Rwanda, Sierra Leone, Sudan, Uganda, results of fraudulent elections as long as probably due to the influence of former human rights system, namely the right and Tunisia. This is currently witnessed their serve their national interests. colonial powers (France and Britain) who to democracy, free and fair elections, in the DRC, Mali, and Sudan. People tend were unhappy with incumbent leaders, and good governance. A right is to be to resort to rebellions and wars to make Moreover, critical institutions such as the no election held in an African country has asserted and continuously championed. change in the government since violence administration, security services, electoral been declared undemocratic by the EU and Otherwise, it will be forfeited. In a seems to be the language that most commission and the judiciary are in Western democratic governments. On the democracy, the people are sovereign African authoritarian leaders understand urgent need of competent, professional other hand, electoral observation missions and not the leaders. Without the people and which has the support of the public servants and judges committed to from the AU and African sub-regional positioning themselves at the forefront prominent members of the international democracy, free and fair elections, and organisations have always ended up with of the struggle for democracy, elections 65 See Mkandawire op cit 119-135; Ake op cit 130, 132, 137

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good governance. They should be women matter or not, but what to do to make Elections in Southern & Central Africa since 2000 and men of integrity above parties’ politics. them democratic. No Country Sub-region Dates of Elections Results (Candidates and their parties/ since 2000 coalitions) Finally, it is worth stressing that democracy 01 Angola Southern Africa 31 August 2012 Pres Eduardo dos Santos (MPLA) being the government of the people for the 05-06/09/2008 Pres Eduardo d dos Santos Peoples’ people and by the people as US President Movement for the Liberation of Angola Abraham Lincoln defined it in his famous – Labour Party (MPLA) Gettysburg Address delivered on 19 02 Botswana Southern Africa 16/10/2009 Pres Ian Khama (BDP) November 1863, no one will ever champion 30/10/2004 Pres Festus Mogae democracy and democratic elections better Botswana Democratic Party (BDP) than the people themselves. 03 Lesotho Southern Africa 26/05/2012 King Letsie III (Parliamentary Prime Minister Tom Thabane Elections, All Basotho Convention(Coalition) African people, including those in Constitutional PM PakalithaMosisili civil society organisations, academic Monarchy) (LCD) 17/02/2007 PM PakalithaMosisili institutions, churches, unions, political Lesotho Congress for Democracy (LCD) parties, the private sector, and the media, 25/05/2002 should continuously stand ready to fight 04 Madagascar Southern Africa 03/12/2006 Pres Marc Ravalomanana (TIM) for democracy and even die for it as Forced to resign on 16/03/2009 following popular uprisings and one of their fundamental rights. They replaced by opposition leader should ensure that norms and principles 16/12/2001 AndryRajoelina promoting democratic elections are Pres Marc Ravalomanana Tiako i Madagascari entrenched in their national constitutions (I Love Madagascar) (TIM) and legislation and states’ institutions 05 Malawi Southern Africa 19/05/2009 PresBinguwaMutharika Democratic and political leaders abide by them. They Progressive Party (DPP) (died in should oppose any vote-rigging and April 2002 and replaced by Ms Joyce Banda (Peoples’ Party, PP) as Interim electoral frauds as a crime against their President) humanity. This is where Article 64 of the 20/05/2004 PresBinguwaMutharika United DRC 2006 Constitution may inspire other Democratic Front (UDF) 06 Mauritius Southern Africa 05/05/2010 Alliance for the Future (Coalition) people on the African continent. This PresKailashPurryag (MLP)(Since article makes a duty for every Congolese July 2012) & Prime Minister citizen to oppose any individual or group NavinRamgooolam (MLP) (since July 2005) of individuals who seize power by the Alliance Sociale (Coalition) use of force or rule in violation of the Pres Sir AneroodJugnauth (MSM) Constitution. It provides that any attempt 05/07/2005 (2003-2012) & Prime Minister Paul Berenger (Mauritian Militant to overthrow the constitutional regime Movement, MMM) (2003-2005) constitutes an imprescriptible crime Pres Karl Offmann (MSM) (2002-2003) of high treason. Elections are costly, Alliance MSM-MMM (Coalition) PresCassamUteem (MSM) (1992-2002) but their importance in our modern & Prime Ministers AneroodJugnauth democracy is beyond dispute. Accordingly, (Militant Socialist Movement, MSM) the question is not whether elections 11/09/2000 (2000-2003) &NavinRamgoolam (Mauritius Labour Party, MLP) (1995-2000)

60 61 Conference Report “The Rule of Law and Free Elections in Africa: Going Beyond the Rhetoric” 20 September – 21 September 2012 Victoria Falls

No Country Sub-region Dates of Elections Results (Candidates and their parties/ No Country Sub-region Dates of Elections Results (Candidates and their parties/ since 2000 coalitions) since 2000 coalitions) 07 Mozambique Southern Africa 28/10/2009 Pres Armando Guebuza (FRELIMO) 01 Burundi Central Africa 23/07/2010 Pres Pierre Nkurunziza Pres Armando Guebuza (CNDD-FDD) 01-02/12/2004 Liberation Front of Mozambique Pres Pierre Nkurunziza (FRELIMO) 19/08/2005 (National Council for the Defense of 08 Namibia Southern Africa 27-28/11/2009 PresHifikepunye Lucas Pohamba Democracy – Forces for the Defense of (SWAPO) Democracy, CNDD-FDD) PresHifikepunye Lucas Pohamba (South 02 Cameroon Central Africa 09/10/2011 Pres Paul Biya 15-16/11/2004 West Africa Peoples’ Organization, (RDPC) SWAPO) 11/10/2004 Pres Paul Biya 09 Seychelles Southern Africa 19-21/05/2011 Pres Jean Michel (2011) People’s Party Cameroon People’s Democratic (PP) Movement (RDPC) Pres Jean-Michel (2006) (SPPF) 03 Central African Central Africa 23/01/2011 Pres François Bozize National 28-30/07/2006 Pres France-Albert René Republic Convergence Kwa Na Kwa Seychelles People’ Progressive Front Pres François Bozize 31/08- (SPPF) National Convergence Kwa Na Kwa 02/09/2001 08/05/2005 10 South Africa Southern Africa 22/04/2009 Pres Jacob Zuma (ANC) 04 Chad Central Africa 25/04/2011 PresIdrissDebyItno PresThaboMbekiAfrican National (MPS) 14/04/2004 Congress (ANC) 03/05/2006 PresIdrissDebyItno 11 Swaziland Southern Africa 19/09/2008 King Mswati III Patriotic Salvation Movement (MPS) (parliamentary Prime Minister appointed by the King. 05 Congo Central Africa 12/07/2009 Pres Denis SassouNguesso (PCT) elections) No political parties allowed Pres Denis SassouNguesso Congolese Swaziland 10/03/2002 (Congolese Labour Party, PCT) 18/10/2003 06 Equatorial Central Africa 22/11/2009 Pres Teodoro Obiang Nguema (PDGE) 12 Tanzania Southern Africa 31/10/2010 PresJakayaKikwete Guinea Pres Teodoro Obiang Nguema (CCM) 15/12/2002 Democratic Party of Equatorial Guinea 14/12/2005 PresJakayaKikwete (PDGE) (CCM) 07 Gabon Central Africa 30/08/2009 Pres Ali Ben Bongo 29/10/2000 Pres Benjamin Mkapa (PDG) ChamaChaMapinduzi (CCM) 27/11/2005 Pres Omar Bongo 13 Zambia Southern Africa 20/09/2011 Pres Michael Sata Patriotic Front (PF) Gabonese Democratic Party(PDG) Pres Rupiah Banda (MMD) (after the 08 Sao Tome & Central Africa 07/08/2011 Pres Manuel Pinto da Costa 19/08/2008 death of PresMwanawasa) Principe (Independent) Pres Levy Mwanawasa (MMD) 30/07/2006 Pres Fradique de Menezes 28/09/2006 Pres Levy Mwanawasa Movement for Force for Change Democratic 27/12/2001 Multi-Party Democracy (MMD) Movement-Liberal Party

14 Zimbabwe Southern Africa 29/03/2008 Pres Robert Mugabe (ZANU/PF) 09-11/03/2002 Pres Robert Mugabe Zimbabwe African National Union – Patriotic Front (ZANU-PF) 15 Democratic Central/Southern 28 November Pres Joseph Kabila Republic of Africa 2011 (Alliance for the Presidential Majority, Congo AMP) Pres Joseph Kabila 30 July 2006 (Presidential Majority, MP)

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References Hinden, R., Africa & Democracy, Encounter, 1963.

Ake, Cl., Democracy and Development in Africa, Washington, DC: The Brookings Hoffman, J., State, Power, and Democracy: Contentious Concepts in Practical Political Institution, 1996. Theory, Sussex, Wheatsheaf Books, 1988.

Amin, S., “The Issue of Democracy in the Contemporary Third World”, in http://www.ceni.gouv.cd (accessed on 30 June 2012). Anyang Nyong’o, P., (ed), Afrique: la longue marchevers la démocratie. Etatautoritaireetrésistancespopulaires, Paris: Publisud, 1988. Mangu, AMB, The Road to Constitutionalism and Democracy in Post-colonial Africa: The Case of the Democratic Republic of Congo, LLD Thesis, Pretoria, University of South Bauer, G., “Challenges to Democratic Consolidation in Namibia”, in Joseph, R., (ed), Africa, 2002. State, Conflict and Democracy in Africa, Boulder & London: Lynne Rienner Publishers, 1999. Mkandawire, T., “Crisis management and the Making of ‘Choiceless democracies’”, in Joseph, R., (ed), State, Conflict and Democracy in Africa, Boulder & London: Lynne Bourgi, A. &Casteran, C., Le Printemps de l’Afrique, Paris, Hachette, 1991. Rienner Publishers, 1999.

Bratton, M. & Posner, D.N., “A First Look at Second Elections in Africa with Illustrations Nicol, D., “African Pluralism and Democracy”, in Ronen, D., (ed), Democracy and Pluralism from Zambia”, in Joseph, R., (ed), State, Conflict and Democracy in Africa, Boulder & en Afrique, Boulder: Lynne Rienner Publishers, 1986. London: Lynne Rienner Publishers, 1999. NOM, Observation de la Compilation des Elections Législatives du 28 Novembre 2011, Conac, G., “Introduction”, in Conac, G., (ed), L’Afrique en transition vers le pluralisme Kinshasa, Décembre 2011. politique, Paris : Economica, 1993. Nwabueze, B.O., Constitutionalism in the Emergent States, London: C. Hurt & Co, 1973. Conac “Etat de droit et démocratie” in Conac, G., (ed), L’Afrique en transition vers le pluralisme politique, Paris : Economica, 1993. Nyang’oro, J.E., “Discourses on Democracy in Africa: an Introduction”, in Anyang Nyong’o, P., (ed), Afrique: la longue marche vers la démocratie. Etat autoritaire et Conrad, J., Au Coeur des Ténèbres, Paris: Edition Mille et Nuit, 1999. résistances populaires, Paris: Publisud, 1988.

Dahl, R.A., Polyarchy: Participation and Opposition, New Haven CT, Yale University Press Nzongola-Ntalaja, G., The DemocraticMovement in Zaïre 1956-1994, Harare: AAPS, 1971. 1994.

Dahl, R.A., Democracy and Its Critics, New Haven & London: Yale University Press & New Nzongola-Ntalaja, G., “Le mouvement pour la seconde indépendance au Congo/ Delhi: Orient Longman Ltd, 1989. Kinshasa”, in Anyang Nyong’o, P., (ed), Afrique: la longue marche vers la démocratie. Etatautoritaireetrésistancespopulaires, Paris: Publisud, 1988. Duverger, M., La démocratie sans le peuple, Paris: Armand Colin, 1976. Nzongola-Ntalaja, G., “The State and Democracy in Africa”, in Nzongola, G. & Lee, M., Glaser, D., “Discourses of Democracy in the South African Left: A Critical Commentary”, (eds), The State and Democracy in Africa, Harare: AAPDS Books, 1997. in Nyang’oro, J.E., (ed), Discourses on Democracy: Africa in Comparative Perspective, Dar-es-Salaam: Dar-es-Salaam University Press, 1996. Obama, B., The Audacity of Hope. Thoughts on Reclaiming the American Dream, New York: Vintage Books, 1st edition, 2008. Gonidec, P.F., “Démocratie et développement en Afrique: Perspectives internationales ou nationales, Afrique 2000, No 14, 1993. Okoth-Ogendo, H.W.O., “Constitutions without Constitutionalism: Reflections on an African Political Phenomenon”, in Shivji, I.G., (ed), State and Constitutionalism: An Gregor, A.J., Italian Fascism and Developmental Dictatorship, Princeton: Princeton African Debate on Democracy, Harare: SAPES, 1st Edition, 1991. University Press, 1974. Olukoshi, A., “State, Conflict, and Democracy in Africa: The Complex Process of renewal”, Haberson, J.W., “Rethinking Democratic Transitions: Lessons from Eastern and Southern in Joseph, R., (ed), State, Conflict and Democracy in Africa, Boulder & London: Lynne Africa”, in Joseph, R., (ed), State, Conflict and Democracy in Africa, Boulder & London: Rienner Publishers, 1999. Lynne Rienner Publishers, 1999.

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Pelletier, J., “L’Afrique en movement”, in Conac, G., (ed), L’Afrique en transition vers le Regional trends on elections and democracy: Kenya pluralisme politique, Paris : Economica, 1993.

Qadir, S., Clapham, C. & Gills, B., “Democratisation in the Third World: an Introduction”, Ken Nyaundi Third World Quarterly, Vol. 14, No 3, 1993. Role of elections in a democracy political organizing. Freedom of assembly, Rijnierse, E., “Democratisation in Sub-Saharan Africa? Literature Overview”, Third World expression and association are liberally Quarterly, Vol.14, No 3, 1993. Elections are at the heart of democracy. Elections offer the citizen an opportunity to practiced unlike the situation in the Moi Ronen, D., “The Challenges of Democracy in Africa: Some Introductory Observations”, in evaluate, assess and scrutinize leaders for era. It is hoped that this may lead to Ronen, D., (ed), Democracy and Pluralism en Afrique, Boulder: Lynne Rienner Publishers, their ability to offer guidance in the social further democratization and a realization of 1986. and economic spheres. To reflect the will full democracy. Ronen, D., “The State and Democracy in Africa: Some Introductory Observations”, in of the voters, elections must be free and Ronen, D., (ed), Democracy and Pluralism en Afrique, Boulder: Lynne Rienner Publishers, fair. If elections are not free; if they are Elections in Kenya 1986. not based on a political philosophy offering Since independence in 1963, Kenya a defined political direction or if the has consistently held periodic elections. Sandbrook, R., “Liberal Democracy in Africa: A Socialist-Revisionist Perspective”, in Nyang’oro, J.E., (ed), Discourses on Democracy: Africa in Comparative Perspective, Dar- management of elections is not focused, Kenya’s elections are severely competitive. es-Salaam: Dar-es-Salaam University Press, 1996. elections become a curse and not a cure A combination of factors informs the voting for social ills. They produce hate, violence pattern and shapes the resultant character Shivji, I.G., “State and Constitutionalism: A New Democratic Perspective”, in Shivji, I.G., and collective disintegration. of the government. The antagonism which (ed), State and Constitutionalism: An African Debate on Democracy, Harare: SAPES, 1st characterize our elections are reflected Edition, 1991. It is now a mantra to say that democracy in many instances; the first being in Shivji, I.G., “Contradictory Class Perspectives in the Debate on Democracy”, in Shivji, is about more than the holding of the establishment of the structures I.G., (ed), State and Constitutionalism: An African Debate on Democracy, Harare: SAPES, elections. Democracy looks at good which manage the elections. Often, the 1st Edition, 1991. governance, rule of law, accountability nomination and selection of the persons Shivji, I.G., Fight My Beloved Continent: New Democracy in Africa, Harare: SAPES Books, and transparency in the conduct of state who oversee the electoral processes 2nd Edition, 1992. affairs. Democracy requires that elected is contentious with each political party leaders utilize state resources efficiently striving to infiltrate and influence the Sklar, R.L., “DevelopmentalDemocracy”, in Anyang Nyong’o, P., (ed), Afrique: la longue and transparently so as to realize social eventual nominees. Parties are of the marche vers la démocratie. Etat autoritaire et résistances populaires, Paris: Publisud, 1988. development. Inevitably then, elections unfortunate belief that their nominees do not of necessity and on their own can sway the precepts and procedures of Sorensen, G., “Democracy and the Developmental State”, in Anyang Nyong’o, P., (ed), guarantee democratic progress. You may the elections in favor of the nominating Afrique: la longue marche vers la démocratie. Etat autoritaire et résistances populaires, have elections, which do not produce a entities. The fear and possibility of Paris: Publisud, 1988. democracy. In this paper I argue that rigging is a permanent feature of Kenya’s UNC v Kabila Kabange Joseph & Electoral National Independent Commission, 12 in Kenya, elections have not stimulated elections; pointing out the absence of December 2011. a full growth to democracy. They have a commitment to a fair process by all not produced the power that propels the political parties. Parties proclaim the Wiseman, J.A., Democracy in Black Africa. Survival and Revival, New York, New York: government to good governance principles. virtues of independent political organs but Paragon House Publishers, 1990. Elections have however facilitated the desire to have a control over the electoral realization of a strong and vibrant liberal process. This trend has been evident since wing of government offering protection the resumption of multi party democracy of fundamental liberties essential in and reflects the suspicions preceding the

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2007 elections, endangering the gains Coalition government has existed in a Party leaders have positioned their cronies carry much appeal. Even then, the entreaty made in the transition from ECK to IEBC. climate of suspicion, sabotage, witch- close to the inner cycles of decision making, to youth was only a manipulation of the hunt, corruption, political insecurities and ignoring merit and rewarding sycophancy to voters, working on the instrumentalisation The trend in Kenya’s politics mirrors a deleterious competition. This combination the exclusion of alternative thought. Parties of age and playing it as one would strong reliance on ethnic identity. Political of elements assails the integrity of the therefor do not benefit from critical thinking, ethnicity. There was never a willful and leaders appeal to sentimental ethnicity as fledging democracy making it difficult as the party leaders prefer to be surrounded deliberate desire to cede power to young a tool for mobilizing their core support. to find common ground for growth and by party functionaries who voice their own people. Kenya is yet to experience the The overarching theme in all election stability. These same components rear views. This concubinage of opinions does politics of class, gender or even religion. campaigns is the appeal to exclusive ethnic suspicion and conflict giving rise to not engender progressive modeling of ideas. The reform agenda, which currently capture of the state apparatus. Rivalry for violence on issues that would otherwise be dominates political discourse in the country, control of the state dominates the political resolved. This is not to say that al is lost. It is may provide a footstool for institutional environment and dwarfs any coherent recognized that the basic elements of changes necessary for the transformation discussions on social enhancement, the The political history of the country shows a democracy are now well grounded of the dialogue that informs the voting economy or general development. In a past where leaders leveraged on in Kenya; equal participation and free patterns and the resultant democracy. election campaigns, candidates only make accumulation of power and resources and competition in the electoral process. There a passing reference to improvement of played on discretion in rewarding potential is however great concern on the skewed Finally, a consideration of whether health care, education, taxation or the voting blocks. The 2010 constitution has political party spread based on ethnic Kenya’s elections have produced a social provision of social amenities including whittled this down but has not entirely prevalence for a party led by an individual democracy may be quantified on three key improvement of the infrastructure. stripped the executive of the exercise from the region. In real terms, there areas: First, whether elections produce a of preference and favoritism in the are places in Kenya where the politics leadership in which citizens have a say in In Kenya, ethnicity as a basis for positioning of public capital ventures, of the community is mono party based. the decision making processes. This has political support presents a setback to particularly those borne out of direct However popular or industrious an elected to do with an assertive legislature and good governance and the fight against donor or foreign government investment. representative, he will fall by the wayside powerful decentralized units. Secondly corruption. Government efforts to prosecute An elected leader, though constrained by unless he supports the regional kingpin. whether elections translate into real persons suspected of corruption are viewed constitutional dictates on state capital This has been confirmed by this week’s tangible gains for the people and not as an affront against the communities expenditure retains a measure of choice parliamentary By-elections. The results democracy as an abstract concept; do where the suspects hail from. In today’s permitting discretion that bypasses have been singularly regional party based. elections produce a leadership that is coalition government, either side of the accountability mechanisms, flouting the directed at improving the lives of the government throws a shield of protective essence of democracy which requires There have been, nevertheless, glimpses people? Thirdly whether elections produce rhetoric on behalf of any of its members transparent conduct on the part of leaders. of political party organizing across an inclusive government. Do elections facing either investigation or prosecution for communities. In the 2002 General election produce a stratified government or a abuse of office, malpractice and corruption. Perhaps as the country goes through more the opposition put together a formidable unified entity representative of the country Elections have therefor not produced a participatory and legitimate elections, the force composed of many ethnic groups as a whole? Answers to these questions do system of government blind to ethnic quality of elected leaders will improve against Moi’s government. Moi shifted not provide positive indicators that Kenyan affiliation and committed to the rule of permitting the government to operate in an his axis to the youth vote, promising elections offer the requisite elements for law. The result is a climate of tolerance for environment of fairness, allowing voters to generational change. The more attractive the growth of democracy. But there is venality for fear of losing political support. have regard to party ideology, principles and discourse on a transfer of power to the hope. Hope based on the new constitutional manifestos. Unfortunately, the prevailing post independence Kenyans as a procedure dispensation and the reform agenda. Kenya’s present segmented democracy atmosphere does not inspire confidence that for introduction of a more transparent and is characterized by forceful rivalry. The this desirable position will soon be achieved. accountable system of government did not Abraham Mwansa

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Regional trends on elections and democracy declarations and instruments such as Countries in the region can measure the Harare Declaration of 1991, the adherence of member states to these Mr Lovemore Chipunza Sekeramayi66 Windhoek Declaration on the Freedom principles and guidelines and advise one of the Media (1991) the SADC Treaty of another on how the electoral process can 1992 and the SADC Declaration on Gender be better managed or improved. Further, Introduction and Development in 1997. SADC leaders the region has also created institutions Many African countries with the equality, tolerance and respect for also identified as part of their common for purposes of encouraging interaction exception of a few now conduct elections. diversity. This paper will limit discussions agenda the provision of common systems and dialogue amongst the stakeholders on According to Professor AttahiraJega, in to the experiences of the SADC region and political and other shared values electoral and democracy issues. The most liberal democratic context, elections are simply because Zimbabwe is a member transmitted through institutions that are notable guidelines and principles which regarded as an important mechanism state of the region and as individuals democratic, legitimate and effective as have tended to influence the regional which facilitates democratic transition by we can relate easily to the events of our well as the consolidation and maintenance trends on elections and democracy are giving opportunities to citizens to vote for region. of democracy, peace and security. For the SADC Principles and Guidelines for preferred candidates, political parties and example, Article 4 of the SADC Treaty Election Management, and the Principles their policies. How elections are conducted The Critical Success Factors for stipulates that “human rights, democracy for Election Management Monitoring and and managed has an important bearing SADC and rule of law” are principles guiding Observation in the SADC Region. on the extent to which citizens have an Countries in the SADC region enjoy similar the acts of its members. Article 5 of the unfettered freedom to exercise their trends if not the same on elections and same Treaty, outlines the objectives of SADC Principles And Guidelines rights and to make their votes count in democracy due to the nature of their SADC, which commits the member states Governing Democratic Elections the election of their representatives and integrated approach to issues affecting to “promote common political values, In the year 2004, SADC countries executive leaders. Where there is concrete their people. This approach has enabled systems and other shared values which are agreed on and signed the Principles and evidence, or even a perception, of abuse or the countries to define common rules transmitted through institutions, which are guidelines Governing Democratic Elections misuse of the electoral process, confidence relating to governance, economic, social democratic, legitimate and effective. It also to be observed by member states when in the process is undermined, suspicion is and political issues thereby bringing commits member states to “consolidate, conducting elections. These Principles and engendered and conflict is unnecessarily relative tranquillity to the region as defend and maintain democracy, peace, Guidelines were agreed to and signed in generated. compared to other regions on the continent security and stability” in the region. Mauritius in August 2004. Although the of Africa. However, this should not be Principles and Guidelines are not law per Zimbabwe is fortunate to be a member taken to mean that there is no order at all Elections and Democracy in SADC se, they provide a guideline upon which of the Southern Africa Development in other regions of the continent. Generally speaking, the SADC region member states can assess one another. Community (SADC) which arguably has made significant progress in the The Guidelines are not only informed by is one of the most peaceful regions in The relative success of the SADC region past decade or so in institutionalising the SADC Legal and Policy Instruments but Africa and has made great strides in on electoral and democracy issues can democracy. The region through its also by the major principles and guidelines consolidating and deepening democracy. be traced back to the period prior to and governments and institutions has managed emanating from the OAU/AU Declaration This achievement can largely be attributed after the signing of the SADC Treaty in to come up with guidelines and principles on the Principles Governing Democratic to the development by SADC countries 1992 when the countries chose to work that govern the conduct of elections for Elections in Africa and the AU Guidelines of a generally accepted set of values that collectively on a number of issues. During member states. for African Union Electoral Observation and ensure fair electoral practice predicated this period, the countries in the region Monitoring missions. The guidelines have on representation, accountability, identified and agreed upon basic values These principles and guidelines serve as provisions relating to the following:- inclusiveness, transparency, gender which are now expressed in various peer review mechanisms for member states though these are not law per se. • Principles for Conducting Democratic 66 The Chief Elections Officer (CEO) Of The Zimbabwe Electoral Commission (ZEC)

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Elections process and underlines the need to have relationship with the SADC and other Each year the Forum holds an Annual • Mandate and Constitution of the SADC a sound political, constitutional and legal related institutions. The ECF consists of General Conference whereby members Observer Mission dispensation that supports free and all Electoral Commissions of the member meet to deliberate on various electoral • Guidelines for the Observation of fair, credible and legitimate elections as states of the SADC region. It is governed issues and to strategize. Members also Elections a precondition for democratic election by a constitution and some of its objectives observe each other’s elections and • Code of Conduct for Election Observers management. The document is structured include the following among others: compile a report on their observations and • Rights and Responsibilities of SADC in a way that reflects the chronology of recommend on any issues for purposes Election Observers and events in the management of elections. • Encourage the establishment of of assisting the member state to improve • Responsibilities of the member state independent and impartial Electoral on election management. There are also holding elections The recommended principles in the PEMMO Commissions in the region; other regional structures apart from the cover the following issues among others: • Encourage the development and Forum which have been established to In Zimbabwe, the guidelines had a heavy provision of a democratic culture support the consolidation and deepening of influence on the new legal framework for • The need for a comprehensive and an environment conducive to democracy within the region but I shall not elections which became operational on the constitutional and legal framework; the holding of free, fair and credible delve into these. 1st of February 2005 and used for the 2005 • The importance of transparent and elections; parliamentary elections and onwards. They accessible pre-election procedures; • Encourage the development of electoral Indications of Progress in the have continued to be used to reform the • The equitable use of media and public laws that adhere to regionally and SADC Region electoral law in the country up to this day. resources and issues of political party internationally accepted principles of As already stated, because of unity of finance; election management; purpose in the SADC, the region has Principles For Election Management, • The organisation and management of • Promote conducive relationships achieved significant progress in the past Monitoring And Observation the election phase; between Electoral Commissions decade by institutionalising democracy. (PEMMO) In The SADC Region • The post-election phase; and and Stakeholders through open and This came about as a result of the efforts • The requirements for unhindered, transparent electoral practices; The following are indicators of progress in of the Regional Electoral Management credible, professional and impartial • Support and encourage the that regard Bodies (EMBs) under the auspices of the monitoring and observation of the development of voter and civic • Establishment of constitutional Electoral Commissions Forum (ECF) of the electoral process. education programmes; democracy SADC countries and the Electoral Institute • Facilitate access to and sharing of • Holding of regular free and fair of Southern Africa (EISA) a civic society The Electoral Commission Forum experiences, research and technology elections organisation. The PEMMO was adopted at a (ECF) of SADC Countries as well as technological information • Peaceful transfer of power regional conference held in Johannesburg, The other factor that has tended to between and among member • Increase in multiparty democracy South Africa on 6 November 2003 under influence the regional trends on elections commissions; within the region the auspices of both ECF and EISA. and democracy has been the creation of • Support and encourage capacity • Increased popular participation in Participants at the conference came from an institution already alluded to above, building programmes of Electoral governance all the 14 SADC countries and represented the ECF. This institution is a regional Commissions to ensure effective • Dialogue between governments and EMBs and Civic Society Organisations organisation which has legal personality discharge of their mandate; stakeholders for whom election observation was core with capacity and power to enter into • Develop guidelines for alternative • Establishment of national and regional activity. contracts, acquire own or dispose of dispute resolution mechanisms; and democratic institutions movable or immovable property and to • Establish relations with other • Sharing of common values and The PEMMO document reflects the sue and be sued. It is an autonomous organisations with similar objectives. principles outcome of a region wide consultative and independent entity with a working • Peace and development

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Challenges premature announcement of election electoral process. Foreign governments However, despite all these achievements results. The announcement of results should avoid using NGOs to engage in there are still a number of challenges should be a preserve of the EMBs only. clandestine political activities. which the region is facing. These include • The media should play a positive and • In countries where there are the following among others: proactive role in preparing people for different ethnic groups, EMBs should peaceful elections by: try to recruit personnel from its • Election violence; a. Avoiding sensationalising electoral country’s national ethnic groups as • Biased or false media coverage of issues for the sake of selling their a way of gaining acceptability by all electoral events; newspapers. stakeholders. • Violation of electoral laws and b. Being objective when reporting on • There is also need to educate voters usurpation of EMB functions by political electoral issues. on the roles of the MPs and Councillors parties and other stakeholders; c. Not hiding the truth for the sake of in terms of how they influence ward • Inadequate funding of EMBs; protecting candidates or political parties and national issues. This will help fuel • Foreign interference in domestic that they support. interest in elections by the citizenry. governance and electoral issues; • EMBs should be adequately funded Voter education should include • Non acceptance of election results by through annual budget allocations to knowledge of how parliament links with political parties and candidates; enable them to continue doing electoral politics and the whole electoral process. • Politicisation of the electoral reform work even if there are no elections. process e.g. shooting down of • EMBs need to devote some of their Conclusion proposals by EMBs for political reasons; precious time in researching on matters Though SADC has its own challenges, it • Partial or lack of voter education; such as technological implementation of has made significant strides in the field • Lack of effective dispute resolution the electoral process. of elections and democracy. The relative mechanisms to election related conflict. • EMBs should also work on identifying peace in the region has enabled co- effective dispute resolution mechanisms operation, solidarity and unity in the region Recommendations on election related conflicts. and thereby resulting in peace and stability Based on the above challenges, • EMBs should encourage their national within this African Region. This has the following are some of the governments to include electoral issues also enabled member states to manage recommendations from an EMB’s in academic curricular as a strategy domestic and regional issues in fairly the perspective which could go a long way in of enhancing potential and future same fashion. deepening democracy not only in the SADC voters’ interest and awareness of their region but on the African continent as a electoral responsibilities. whole: • Voter Education should be easily accessible through publication of • Politicians in the region should unite simplified voter education material against perpetrators of violence. In which would also be obtainable from addition, they should desist from any commercial service centres at engaging youths to propagate acts of affordable and subsidised prices. intimidation and violence. • Foreign governments need to respect • Politicians, political parties and the integrity of national electoral individuals should avoid making processes by not interfering in the

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I have been requested to address the topic ‘Towards Strengthening and Institutionalising Civilian Oversight: Reviewing the Role of The Security Sector in Elections’. I feel greatly honoured to be part of this great gathering of colleagues committed to the rule of law, as a key ingredient to entrenching a democratic ethos in our society.

When I was first invited to present, I got the impression that the conference theme was my subject for presentation at this conference. It was only late on Monday afternoon the 17th of September, that I realized that the first part of my topic was “Towards Strengthening and Institutionalising Civilian Oversight”: and the second part was “Reviewing the Role of the Security Sector”

I just did not have the temerity to revert to the Zimbabwe Republic Police who had prepared an excellent thesis to ask them to prepare another one with a different topic. However a lot they had included in their document is still relevant to this topic that I have been requested to deal with. In any case the second half of the topic is still the same, much to my relief. This is a composite topic and I propose that the subject Towards Strengthening and Institutionalising Civilian Oversight forms part of my introductory remarks after which I will delve into the intricacies of the main subject matter of my presentation that is “ Reviewing the Role of The Security Sector in Elections” Day Two Why do we need civilian oversight in elections? 1. In democratic processes, it is important to take steps to for ensuring higher level of accountability and transparency in the exercise of internal security Democratic institutions services of which the electoral process is one such service. 2. To improve the quality of the outcome of an electoral process, it is important that the relationship between the citizens and the security units be enhanced by Towards strengthening and institutionalising civilian Institutionalising it. oversight: reviewing the role of the sector in elections 3. It is necessary to develop policies that ensure increased and effective exercise of fundamental rights and freedoms. 4. It is more important to transition from the mentality of state security to that of citizen security in the new Democratic Africa. Minister Theresa Makone 5. Civilian oversight in security services will ensure transition from reactive policing to preventive policing. 6. Civilian oversight of internal security services will contribute in the transition from bureaucratic management implementation to democratic management implementations.

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Such oversight will enhance the scope of governments’ policies on “zero tolerance Governments consist of politicians who by and large would like to stay in power against violence and I’ll treatment of citizens” ad infinitum. Democratically weak states all over the world, will concoct rules and regulations which will enable them to use and abuse state power through internal The countries of Africa have emerged from different colonial regimes which by security forces to manipulate the electoral playing field, in their favour, thereby and large, used the police to suppress African citizens, thereby denying them any yielding electoral outcomes that do not conform to local, regional and international democratic spaces. The rule of law was unevenly applied, with the colonials enjoying standards. impunity while the Africans were dealt an unequal and unfair hand. It must be seen and agreed that the current security forces in post-colonial Africa were built upon If security sector reform is an ongoing exercise overseen by the citizenry, the the remains of the security forces of the colonial regimes. It is therefore important era of career ministers of government will in no time become a thing of the past. that in post colonial Africa we move towards the Rule of Law for all, which is the Continuous training will give the security forces pride in executing their duties cornerstone of Democracy. without fear or favour. It is not the fault of the police if the statutes contain laws that are skewed and patently unjust. Theirs is not to make the laws but to enforce Regardless of political affiliation and social status, the law must be applied to all in them. The making of the laws is strictly for the legislature, except in weak states a fair and just manner. Who then decides whether the application of the laws is fair where the executive overrides the concept of separation of powers, where the and just, and that during electoral processes the application of same does not result executive dictates to the legislature. in skewed outcomes? It is the citizenry in my opinion.. Therefore the same citizenry should have the opportunity to oversee those that enforce the rule of law. In the Policing in a democracy, which is an essential ingredient of the rule of law, requires case of Zimbabwe, it is civic society in its different forms and groupings that should that the police be guided by three fundamental tenets, which are: oversee the civilian oversight of the security institutions. Proportionality It is the responsibility of government through the Ministry of Home Affairs to ensure Legality and Necessity. that the relevant policies and legal frameworks are in place towards strengthening and Institutionalising civilian oversight. To this end, the police should endeavour to balance the use of and the need to observe human rights. This balancing act, in my humble submission, is not easy What should be afforded by government towards this goal? to achieve in the eyes of the ordinary citizen. Notwithstanding the fact that Police officers have to make split second decisions, they should always ensure that the law I believe that civilian courts should be given powers to deal with breaches on civil is upheld, by enforcing it regularly, and applying it uniformly without considering liberties and human rights especially as regards the legitimacy of violence by the the social circumstances of an individual. security forces on the citizenry. Matters such as budget or human resources and education should be put under some form of Civilian control under a Policing Board In strong democracies, the citizenry will then oversee the application of the rule which provides for a democratic control and oversight of policing, and ensures of law, more or less like a quality assurance procedure. Everyone in society is that it does not become the preserve of government, sectional interests, dominant responsible for the rule of law. It is like a chain where each ring is interlinked to elites, or any one political party. another, and therefore depends on the other for sustenance, like you and me. The rule of law does not depend on the best constitution or best laws for its observance. To label security sector reform as a Regime Change Agenda or a Colonial Masters What this means is that the police are neither the sole nor the main defenders Plot is an insult to the collective intellect of a nation. Security forces all over the of the rule of law. It is all of us together hence the need for strengthening and world are changing in line with their changing national interests and depth of institutionalising civilian oversight. democracy. It is the citizens of the country who keep a score card of how they are governed and as to who should govern them. The whole electoral process from In the case of Zimbabwe, this is a brand new concept. The citizens need to be beginning to end is a regime change process, be it internal within a political party, trained on the concept of oversight of the security sector. A lot of workshops or external between two or more political parties. would need to be put together by identified experts so that a correct relationship

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is constructed between the citizenry and the security personnel before Before I move on to the topic of the security sector in elections in Zimbabwe I wish Institutionalising civilian oversight. to make some remarks in passing on Free Elections in Africa in general. At a certain level of abstraction, States are bound to conduct their internal affairs, so that the I am envisaging a democratic policing of the security sector which should as far as authority to govern, shall be based on the will of the people as expressed in periodic possible be devolved to the local level to a district partnership across the country. and genuine elections. Ideally such district partnerships would be made up of representative of registered political parties and representatives from civil society. Their role would be to In the Republic of South Africa, the South African Police are involved with other monitor the performance of the police services as well as to be consulted when the electoral role players, particularly the Independent Electoral Commission. The main police develop local police service plans. aim of the Security forces during elections is to maintain public order and to create, by means of effective policing, a favorable climate in which a democratic election There should also be an Ombudsman especially for police complaints as the can take place. This will create a level playing field for political players and will protection of human rights is a cornerstone of democratic policing. The Office of effect political meetings as well as the casting of votes without intimidation, which the Police Ombudsman would provide the most independent and robust mechanism is one of their main problems. Among government security structures they include for dealing with police complaints. A police Service Commission consisting mostly in their midst, the Institute for Democracy in Africa, IDASA, Universities, the media of ex-police officers appointed by the Ministry of the Interior or Home Affairs is houses, International Monitoring Groups and the Independent self- governing states not the most ideal body to provide for civilian oversight to the police service of a as well regional and continental civic and parliamentary election monitors. democracy. The Office of the Police Ombudsman should have a statutory obligation to monitor compliance with all human rights acts and protocols. Their electoral process is divided into three phases as follows:

Article 5 of the Universal Declaration of Human Rights and Article 5 of the African 1 PRE-ELECTION PHASE Charter on Human and Peoples Rights have been ratified by the majority of African countries little has been achieved on the ground to give effect to the objective of Focuses on fostering cooperation between the role players. Other focus areas the Convention in Africa. With great respect, As Africans, it would appear that we include the provision of manpower, training of police in accordance with the regard these rights to be foreign and fit CND SHELLAC ORDER to be conferred on Electoral Act and the Independent Commission Acts, the combatting of intimidation, western humans only. information and communication and logistics support for the forces.

I must hasten to add that a few countries in Africa have started to seriously 2 THE ELECTION PERIOD PHASE implement the convention, and I have seen with my own eyes, an office similar to the one I am proposing above in the country to the north of us. Of course there During which the main focus will be on effective policing of the electoral polling will be resistance to civilian oversight, as it tends to open to scrutiny to what was booths especially for the rural areas. usually handled quietly in-house, and what may be seen to be a process that favours complainants. This is pretty universal and should be expected. 3 THE POST ELECTION PHASE

I expect most resistance to come from politicians in countries where the security Will focus on the provision of visible services, the investigation of crime, provision sector is used to sustain undemocratic regimes in perpetuity in exchange for favours of man-power, support of policing by means of logistical and financial support, and and trinkets. Building police accountability, just as policing itself is multifaceted and the maintenance of community services. challenging. The implication of this, together with the inherent police sensitivities in police reform, is that creating more and stronger policing oversight will need It is a gratifying fact that South African Police Service together with the South sustained expert support. This technical assistance must be sensitive to local African Defence Forces has maintained and earned the voters’ confidence for the dynamics, and to continental and international political agendas, while inputs manner in which they play their role in ensuring a credible electoral process. will need to be relevant and appropriate to the capacity and constraints of local situations.

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Generally the role of the security sector during elections is to The role of the ZRP during this phase will include the following:-

1. Protect life and property a) to maintain law and order and prevent the breach of peace 2. Preserve law and order and b) to ensure that political parties campaign freely and peacefully during the run-up 3. Detect and prevent crime to the elections c) to prevent the defacement, destruction, mutilation, removal or alteration of In particular the security sector should take steps to ensure that there are secure political graffiti displayed by different political parties conditions necessary for the conduct of any election in accordance with the laws of d) to provide security of ballot boxes and election material to the polling stations the relevant country. and e) ensuring that citizens carry out their day to day activities in peace. In Zimbabwe, during elections, the role of the Police is transformed substantially deriving from the electoral process and accompanying activities which include: During the Electoral Phase which is the actual Voting Period which lasts for one day, the police must maintain peace and ensure that tension is kept under control. a) Political Parties Voter Support Mobilisation Rallies b) Voter registration The role of the police will include the following among other duties:- c) Voter education and e) Announcement of results and post election conflict. i) maintenance of law and order and prevent the breach of peace ii) to assist electoral officers in the administration and policing of polling stations so To manage elections the Zimbabwe Republic Police splits the electoral process into that voters cast their ballots in peace three phases that is, the per-electoral, electoral and post electoral period. The issue iii) to ensure that there is no electioneering or canvassing for votes in any public of security during elections is paramount throughout these phases hence the need or private place within 200 metres of polling stations according to current laws for Police involvement in all these processes. and iv) to prevent defacement, mutilation, removal or alteration of all official notices In discharging the above obligation all officers of the Zimbabwe Republic Police are displayed at polling stations. expected to carry out their duties:- v) to provide security for ballot boxes, election material, election officers, and election agents during the voting exercise Diligently vi) to facilitate free movement of persons to and from polling stations Courteously vii) detection and investigation of any offenses committed inside polling stations and Without fear or favour viii) to carry out preventive patrols in and around polling stations. With honesty and integrity Within the limits of the law and In the Post Electoral Phase which is the period between the closing of the polling With due respect for human rights. station and the declaration of the final results, the role of the police is to:

The pre-electoral phase is very fundamental for the failure of the police to properly a) to maintain law and order and prevent the breach of peace. Ensure that both handle it may be disastrous which may result in chaos, thereby discrediting the winning and losing parties observe the maintenance of peace. whole election process. The period is sensitive in that once the security situation b) to guard and escort ballot boxes up to the place where they are stored. gets out of hand it is difficult if not impossible to bring it back to normal, and restore credibility back to the process.

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Elections: A Legal Framework the next elections in Zimbabwe will necessarily see police working together with committees of all stakeholders, to ensure free and fair enforcement of electoral Probably because it is a process, an election requires an adequate legal framework laws. When there is involvement of the Police and the citizenry under the guidance that will ensure that it is managed in a credible and appropriate manner and of a free and independent electoral commission, during this sensitive period, it conducted only within this framework. leads to engagement of political protagonists without fear of harassment, threats, assaults, electoral fraud, threats of future violence, rape, intimidation, malicious Generally, the electoral legal framework includes at least the constitutional injury to property and loss of life and limb that have been associated with elections provisions on the management of elections and electoral laws and code. In in the past decade. Zimbabwe, the electoral process is complemented by regional, international standards and principles derived from fundamental rights and freedoms established There is a new climate of tolerance and general camaraderie that has been through treaties and political commitments of countries, such as the SADC created by the advent of the Global Political Agreement and the formation of the principles and guidelines governing democratic elections, the Universal Charter of Government of National Unity which should not be squandered at the altar of Human Rights, the African Charter on Human and Peoples Rights and The African political expediency. The forthcoming elections must be managed in a way that Charter on Democracy among others. will guarantee citizens effective participation in the choice of leaders. Quality participation of citizens in all the electoral phases should be the main goal of those The Zimbabwe Republic Police is bound during the electoral process to take into charged with ensuring that a poll that emanates from such a process cannot be account the contested.

i) Electoral Act Chapter 2:13 I want to conclude by saying that the ZRP has the capacity to ensure that a credible ii) POSA 11:17 poll is staged in the next plebiscite. What is needed is the political will by the iii) AIPPA ( Access to Information and Protection of Privacy Act) chapter10:27 Executive, in the case of Zimbabwe, the executive being the State President, The iv) Criminal Law Codification and Reform Act 9:23 Prime Minister and Cabinet Ministers, to allow the ZRP to execute their duty without undue interference. The role that the police will play in the next election cannot be Without going into detail, these laws have attracted much controversy and debate overemphasized. because of their perceived effect on citizens rights. As we speak, these are the laws that the ZRP have to enforce in order to deal with the election environment. The maintenance of peace by police officers allows for a conducive environment Until amended possibly under acts of the new constitution which is currently being paramount in the holding of free, fair, credible and democratic elections. The concluded, these are the laws that govern the electoral processes in Zimbabwe holding of free and transparent elections constitutes in part a sign of hope for today. The interpretation of the vast array of sections under the acts leave a lot of peace building and the establishment of a strong democracy. It is therefore critical room of misinterpretation which can lead to a creation of uneven electoral terrain that stakeholders in the election process try not to undermine the decisive role by for political players depending on the political disposition of the enforcers. When police in the light of changes that may occur to electoral legislation. If the police this happens by and large it leads to bitterness and a sense of deprivation of is accorded its role it will be perceived by the citizenry as a force for protection, fundamental loss of the freedom to exercise electoral rights leading to complaints justice, in defence of the people as well as democratic values and institutions. that lead to loss of legitimacy of the electoral processes.

As stated before, the ZRP only enforce the laws of the land and are not part in formulating them. The burden of straightening these laws lie fairly and squarely with the Legislature as soon the new constitution is in place after the referendum.

Elections are a period for political parties to compete qualitatively for political power. Because of the fierce competition that ensues during this period it is hoped that

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Establishing democratic institutions through enactment has not taken centre stage in East, “It is probably inevitable that there should of constitutions Central, Southern Africa. This is not to be some tension between judges and say that we are any better than our friends politicians in a country like ours, where the to the North and West. There is a strong Constitution entrenches the rule of law, Advocate Eric Taurai Matinenga MP body of opinion that whilst the army has and makes provision for an independent not openly taken over in these countries, judiciary, and for judicial review of there have been ominous behind the legislative and executive action. This is Introduction scenes manipulation of electoral practices. inherent in the separation of powers and An institution has been described as: The prospects for free elections in In Zimbabwe, senior security force, is not solely a South African phenomenon. “----- a relatively enduring collection of Zimbabwe are not particularly good. commanders have openly declared their Aformer Chief Justice of Australia, Chief rules and organized practices, embedded This is because in the main, we pay lip allegiance to ZANU PF. More ominously, Justice Gleeson explained it in these in structures of meaning and resources service to the concept of the rule of law. they declared that they will not accept terms: that are relatively invariant in the face Indeed some of us in Zimbabwe equate any elected leader from outside the party of turnover of individuals and relatively rule by law to rule of law! Hopefully, the they support. Angola has just had general “It is self-evident that the exercise of resilient to the idiosyncratic preferences establishment of democratic institution in elections. A writer in the Zimbabwe (Judicial review) will, from time to time, and expectations of individuals and our constitutions will create the necessary Independent of 14-20th September 2012 frustrate ambition, curtail power, invalidate changing external circumstances”1 steps towards the observance of the rule of ruefully commented on the elections as legislation and fetter administrative action. law leading up to free and fair elections. follows: As the guardian of the Constitution, In a speech on his first visit to Ghana, the High Court from time to time President Barrack Obama said, I do not protest to know what is happening “The formerly Marxist MPLA switched to a disappoints the ambition of legislators and in the rest of Africa. Consequently, my multi-party system in 1992 but opponents governments. This is part of our system of “In the 21st century, capable, reliable and address will concentrate on events at say a thin democratic facade hides a self- checks and balances. People who exercise transparent institutions are the key to home, Zimbabwe. serving elite propped up by a pervasive political power, and claim to represent success – strong parliaments and honest security structure”. the will of the people, do not like being police forces; independent judges and General Overview checked and balanced.’ Lord Bingham, journalists; a vibrant private sector and In 1980, Zimbabwe had its first election Constitutional Institutions one of the great common law judges of civil society. Those are the things that on the basis of universal suffrage. Other In a modern state, and I believe Zimbabwe our generation, refers to an inevitable give life to democracy, because that is countries in Africa had experienced the is one, the constitution recognises three and entirely proper tension between the what matters in a democracy, that is what same. West Africa provided the lead. broad institutions- the Executive, the government and the judiciary! Whilst not matters in people’s lives.” Sadly it is West Africa which took the Legislature and the Judiciary. The common necessarily desirable, such tension should ______lead in trashing elected governments. In parlance is that these institutions separate not come as a surprise to anyone. It is Ghana, Nigeria, the aura with which we governmental power. They check and evidence that we have an independent and It is clear from the above definition and the held their independence and democratic balance each other. not a compliant judiciary.”2 comments by President Obama that the elections were shattered by violent coups creation and establishment of institutions which followed. We are told that all these In checking and balancing each other there The bottom line is that all institutions is a realisation that man come and go. The coups were meant to restore legitimacy to is bound to be some tensions, particularly which check and balance each other must irony however is that it is man who creates the people, rid corrupt practices, introduce between the judiciary and the executive. do so in terms of the constitution. That institutions. It is man who must nurture transparency and restore legitimacy to the The tension becomes undesirable if either is the rule of law. At a time when the and grow the institutions. Without political people, rid corrupt practices, introduce institution acts outside the constitution. A Executive in Zimbabwe sought to argue will, institutions, particularly democratic transparency and restore human dignity. former Chief Justice of South Africa, Chief the rule from a partisan point of view, institutions are bound to struggle. If not Justice Arthur Chaskalson describes this Chinhego J. correctly stated the position as fail completely. The scourge of open military take overs tension as follows: follows:

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“------the rule of law represents a norm • When the Supreme Court held that for Buhera West recommended that the 2.1.8 Vote education; that any person any bring up a claim and the death penalty was unconstitutional fingered perpetrators be brought to book. 2.1.9 Acceptance and respect of the have it determined within the framework in Catholic Commission of Justice and ______election results by political parties of a body of principles which are applied Peace v A.G. and others 1993 (1) ZLR 4 proclaimed to have been free and to all persons equally. --- The role of 242, Constitutional Amendment 13 was Inspite of the court directive the fair by the competent National the state is to maintain law and mitigate enacted reversing the Supreme Court alleged perpetrators of the murders at Electoral Authorities in accordance conflict within the community and the ruling. Murambinda still walk free. The security with the law of the land; and instrumentality for the maintenance of law • Statutory Instrument 318 of 2000 was operative fingered in the murders, as far ______and order is the police. The rule of law to promulgated to deny any and (2) of as I am aware, is still on the government 5 me means that everyone must be subject the constitution which affords every pay roll.5 2.1.10 Challenge of the elections results as to a shared set of rules that are applied person the right to a fair hearing by provided for in the laws of the land.” universally and which deal evenly with an independent and impartial tribunal. For his part, the President of ZANU PF people and which treat like cases alike. Fortunately the instrument was struck openly announced that he had degrees A critique of the 2008 Presidential run off down as unconstitutional by the in violence and that whites (perceived on the IDASA website dated July 2008 Under a constitutional democracy such Supreme Court. supporters and funders of the MDC) should clearly shows that Zimbabwe did not follow as Zimbabwe, there is recognition that • When white commercial farmers be made to tremble. its laws nor the SADC Guidelines and society’s power is dangerous to its successfully challenged the compulsory Principles it appended its signature to. The members if it is exercised by one group acquisition of land, Constitutional The elections in 2002, 2005 were no safer. critique is attached as Annexure, A hereto. of individuals. It is recognised therefore Amendment 17, ousting the courts This is despite the fact that over and above that there must be a separation of powers jurisdiction was passed.4 the law proscribing violence, Zimbabwe The institutions in our constitution can to perform the three jobs which have to signed the protocol which established easily deliver a free and fair election. be done ----- These pillars of the state LAWS(CONSTITUTIONALITY) vs SADC Guidelines and Principles on the However, they can only do so if the core act together. They are not isolated from COANSTITUTIONALISM Holding of Democratic Elections in 2004. values they speak to are respected. These another. They however act as brakes on The conduct of the executive described Article 2 of the Guidelines provide as values mean that nobody can conduct each other.”3 above is clear indication of the pursuit of follows: themselves illegally and with impunity. the rule b law and not rule of law. “2.2 SADC Member States shall adhere They direct our security services to apply Institutional Performance to the following principles in the the law without fear of fervor and devoid of The three broad institutions depend on Zimbabwe has always experienced some conduct of democratic elections any selective application. They expect that sub institutions for their performance. form of electoral violence since 1980. This 2.1.1 Full participation of the citizens in the executive will respect the constitution, These are either executive or independent became more pronounced from 2000. the political process; the institutions made in its terms thereof commissions. But as said earlier, Immediately after the rejection of the draft 2.1.2 Freedom of association; and the court judgements arising there performance is to a large extend, constitution in 2000, white commercial 2.1.3. Political Tolerance; from no matter how detestable the rulings dependent on political will. farmers, their supporters and workers 2.1.4 Regular intervals for elections as are. Without these, a constitution is ______were violently attacked and displace. The provided for by the respective but a worthless piece of paper and the 2 election which followed in June of the same National Constitution; institutions established therein from mere 3 year recorded some nasty incidences of 2.1.5 Equal opportunity for all political paper tigers. violence. At Murambinda Growth Point parties to access the state media; In Zimbabwe, the unfortunate experience in Buhera, two MDC supports met a cruel 2.1.6 Equal opportunity to exercise the On 3 July 2009, Alex Magaisa posted an is that the executive has moved in to and violence death at the hands of state right to vote and be voted for; article, titled Constitution Will Not Save Us nullify judicial pronouncements which are security agents and ZANUPF militia. Such 2.1.7 Independence of the judiciary on New Zimbabwe.com. He said, amongst perceived to go against the policy of the was the cruel nature of the killing that the and impartiality of the elected others: day. judge who set aside the ZANU PF victory institutions;

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“Let us be reminded that not even the The Copac Draft currently on the table most beautiful words of a constitution provides for security sector institutions Conference Resolution will stop election violence. They will which are subordinated to civilian not compel the police to act fairly and authority. It provides for independent impartially. They will not make the institutions which are well resourced. RESOLUTIONS ADOPTED BY electoral commission fairer and more “The Rule of Law and Free Elections in Africa: Going Beyond the impartial. They will not stop people Importantly these improved constitutional Rhetoric.” Victoria Fall 20 September – 21 September 2012 from being abducted. They will not provisions, can only work to our good cause ministers to evolve to a stage if we embrace constitutionalism. where they actually obey the orders Constitutionality alone, will not lead us Deeply concerned by the state of 1.2. There is greater need to have of the courts without cherry-picking to free and fair elections – we will not go democracy in Africa, in particular the strengthened peer review them.” beyond the rhetoric! proliferation of governments of national mechanisms built in the election unity; monitoring mechanisms within In March 2008, Zimbabwe had a relatively 1. Essay on Elaborating the New the Southern Africa Development peaceful election. The runoff in June Institutionalism, James G March and Determined to move the continent away Community (SADC). cannot be described as an election on Johan P. Olsen, The Oxford Handbook from articulated democracy to realized any account. Some have described the of Political Institutions, page 3. democracy; 1.3. Legislative frameworks throughout events between April and June as genocide the continent should be amended masquerading as an electoral process. 2. Chaskalson C.J, Without fear, favour or Mindful of the coming into force of the to guarantee the independence prejudice: the courts, the constitution African Charter on Democracy, Elections of EMBs. This may be achieved It is critical to note that the laws in place and transformation, Advocate, Vol 25, and Governance in accordance with the by having them report directly to in March 2008 were the same laws in number 2, August 2012. provisions of Article 48 of the Charter on Parliament; and ensuring that they place up to the farcical run-off in June. A 15 February 2012; are adequately funded. proper and fair application of the Current 3. Commissioner of Police v Commercial Lancaster House constitution and the laws Farmers Union 200 (1) ZLR 503 (H) AT Cognisant of the need to operationalise 1.4. The work of EBMs throughout made under it would have put a stop to the 526. and give effect to the provisions of the Africa should be enhanced by lawlessness we experienced. Charter; the use of Information and 4. Sheppard Mushonga and Auor v Patrick Communication Technology (ICTs) Conclusion Chinamasa and Auor 2001 (1) ZLR 69 We, the participants of this conference, in the registration of voters and the Zimbabwe has constantly held elections have agreed on the following: management of results. when they became due. Unfortunately, the 5. Buhera North Election Petition 2001 (1) majority of these elections cannot be said ZLR 295 AT 305. 1. Election Management Bodies 1.5. The utilisation of state funds and to have been free and fair. In particular General Recommendations resources by incumbents or any the 2008 Presidential runoff was more 1.1. There is need to facilitate increased political party for electioneering a vote for dear life rather than a vote to dialogue amongst the different should be regulated. choose a desired leader. stakeholders in elections and

Zimbabwe is in the process of writing a election management. The findings Zimbabwe Specific Recommendation new constitution. It has been a tortuous and outcomes from these initiatives 1.6. An audit of the Zimbabwe process. Despite the tortuous path taken, should then be communicated to Election Commission (ZEC) staff I am confident that a relatively good the Election Management Bodies. should be conducted to remove document will come out of the process.

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personnel with known political President and executive should allow for or create mechanisms affiliations. A recruitment criterion have no powers to pass legislation for the alternative resolution of should thereafter be established on elections. electoral disputes. and implemented outlining the minimum requirements for 2.5. The laws governing elections should 4.4. Judges should be provided with employment at ZEC. be harmonized and included in one continuous legal education to allow all-encompassing electoral act. them to better handle electoral 1.7. The Electoral laws in Zimbabwe disputes. should be amended to ensure 3. Security Sector Role in Elections 4.5. The independence of the judiciary that all aspects pertaining to General Recommendation must be ensured. election management fall under 3.1. The role of security forces should ZEC particularly the registration of be clearly defined and limited to the 5. General/Non-Theme Specific voters. maintenance of law and order. It Resolutions must not extend to the running or 5.1. There is need to convene a 2. Electoral Laws management of the elections. Zimbabwean focused meeting 2.1. All countries in SADC should on Elections to allow for dialogue ratify, domesticate and conform Zimbabwe Specific Recommendations between Zimbabweans. This should to international principles and 3.2. The provisions of the Global Political be held in Harare to allow for standards on elections. Agreement and other relevant greater participation. (Ideally this founding documents that pertain to should follow the referendum) 2.2. The legislative frameworks in security sector reforms should be all African countries should be implemented or adhered to. 5.2. Voter education should be included amended to ensure appropriate in the curriculums of primary and penalties are imposed on people 3.3. Dialogue between the security secondary schools. that commit and are convicted of sector in Zimbabwe and the electoral offences. These laws must relevant parliamentary portfolios 5.3. Civil society should engage on an be applied equally to all offenders should be encouraged. advocacy intiative to encourage regardless of political affiliation or African states to ratify the African any other criteria. 4. Electoral Dispute Resolution Charter on Democracy, Elections 4.1. Adequate resources should be and Governance. 2.3. Amendment of the legislative allocated to courts dealing with framework on elections or any electoral disputes and these courts other electoral reform should be should be decentralised to outlying effected timeously to allow the EMB areas. time to implement these changes. 4.2. The law should provide a time 2.4. The enactmnent of election laws, frame for the resolution of electoral like other pieces of legislation disputes. must remain the prerogative of Parliament. It follows that the 4.3. The legislative framework should

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Conclusion

One of the main objectives of the meeting was to provide African academics, parliamentarians, political analysts, election administrators, civil society organisations, political parties and government agencies with an opportunity to reflect upon the legal and regulatory framework affecting elections, in Africa. The meeting did succeed in creating a platform upon which dialogue was achieved with representatives from 7 different countries. There were several issues that emerged from this discussion:- a. The issues affecting African democracy are similar throughout the continent; b. These to some extent have to do with the growth of the state in Africa and the emergence of a ruling elite that has taken advantage of this evolution; c. More interesting a solution that resonated from a number of the papers created was a departure from western liberal notions of democracy or a minimalist approach to democracy to a more encompassing discourse that is peculiar to Africa.

The issue of whether the African Charter has started a process towards this African idealwas never exhaustively discussed. What is clear from this meeting is that there is need to look at these issues in greater detail and to ensure that continental actors are afforded the opportunity to define this vernacular.

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