Election Management Bodies in Southern Africa Comparative study of the electoral commissions’ contribution to electoral processes A review by Open Society Initiative for Southern Africa and ECF-SADC 2016 Election Management Bodies in Southern Africa Comparative study of the electoral commissions’ contribution to electoral processes A review by Open Society Initiative for Southern Africa and ECF-SADC 2016 Published by the Open Society Initiative for Southern Africa (OSISA) and African Minds OSISA President Place 1 Hood Avenue Rosebank Johannesburg, 2196 South Africa www.osisa.org African Minds 4 Eccleston Place, Somerset West, 7130, Cape Town, South Africa [email protected] www.africanminds.org.za 2016 All contents of this document, unless specified otherwise, are licensed under a Creative Commons Attribution Non-Commercial 4.0 International Licence ISBNs Print: 978-1-928332-17-6 EBook: 978-1-928332-18-3 e-Pub: 978-1-928332-19-0 Copies of this book are available for free download at www.africanminds.org.za and www.osisa.org ORDERS To order printed copies within Africa, please contact: African Minds Email: [email protected] To order printed copies from outside Africa, please contact: African Books Collective PO Box 721, Oxford OX1 9EN, UK Email: [email protected] CONTENTS Preface _____________________________________________________iv Acknowledgements ____________________________________________ vii Overview __________________________________________________viii 1. Angola Dr Nuno de Fragoso Vidal ____________________________________________1 2. Botswana Prof. Emmanuel Botlhale, with Dr Onalenna Selolwane __________________45 3. Democratic Republic of Congo Dr Joseph Cihunda Hengelela ________________________________________75 4. Lesotho Prof. Mafa M. Sejanamane __________________________________________109 5. Malawi Ms Ann Maganga __________________________________________________133 6. Mauritius Dr Roukaya Kasenally ______________________________________________163 7. Mozambique Dr Domingos M do Rosário _________________________________________189 8. Namibia Mr Moses Ndjarakana______________________________________________219 9. Seychelles Dr Nandini Patel ___________________________________________________235 10. South Africa Dr Collette Schulz-Herzenberg ______________________________________259 11. Zambia Dr Njunga-Michael Mulikita _________________________________________289 12. Zimbabwe Dr Charity Manyeruke______________________________________________317 iii PREFACE To the extent that elections determine how political power is allocated and dispersed, and the related management of public resources, they are high-stakes events and high points in the political history of any country. In many countries around the world, disputed or failed elections have been the cause of much human insecurity, deaths and destruction of lives and property. Against this background, over the past two decades or so, Southern African countries have entrenched the use of elections as the only means and medium for electing governments and representative institutions in governance. As a region, the Southern African Development Community (SADC) has been spared the ignominy and spectre of military rule. The question is no longer whether or not elections regularly and periodically take place to enable citizens the exercise of their constitutional authority as envisaged in Article 21 of the Universal Declaration of Human Rights. Rather, it is the quality of the elections that is at issue. The primary question today is whether elections are inclusive and fair, and produce truly legitimate outcomes. Experiences from the region and elsewhere have shown that when an electoral process fails to produce credible outcomes, the legitimacy of institutions of governance is brought into question, with declining citizen confidence in electoral processes. Central to elections are electoral management bodies (EMBs). These institutions, which are creatures of national constitutions or statute, are mandated to manage most, if not all, aspects of the electoral process, including but not limited to: the registration of voters; preparing and updating of voters’ registers; the registration of political parties – in general or for elections; civic and voter education; the nomination of candidates for elections; the enforcement of electoral codes of conduct; regulating media coverage of elections; the accreditation of party agents and observers; polling and announcement of results; and recommending electoral reforms. Informed by the political history, constitutional traditions of the country and lessons from regional and international best practice, the design, mandate, extent of powers and even the number of institutions responsible for electoral matters in each country, vary. For example, while some countries have one EMB for all electoral matters, in some countries these functions, especially those relating to the registration of voters, the registration and regulation of political parties, and the regulation of media coverage of elections may be dispersed among more than one institution. Whatever the design and context, credible elections are dependent on an electoral management process that is faithful to the principles of ‘independence, impartiality, transparency, professionalism, and sustainability’.1 1 See https://aceproject.org/ero-en/misc/egypt-principles-for-independent-and-sustainable [accessed 6 August 2016]. iv PREFACE As organisers and referees of highly contested, sometimes zero-sum contests on the transfer of citizens’ trust to elected representatives and institutions, EMBs are every loser’s worst enemy. They are generally misunderstood institutions, sometimes suffering serious stakeholder trust deficits, and often criticised for that which they are not mandated or even permitted to do. If they are not fighting off possible manipulation by vested interests – such as incumbent governments, and powerful political and business interests – EMBs may have to deal with an unfavourable political and legislative environment or deliberate or unavoidable financial asphyxiation, all of which limit their capacity to deliver credible elections. This study, which is a collaborative effort between the Open Society Initiative for Southern Africa (OSISA), the Open Society Foundation’s Africa Regional Office (AfRO) and the Electoral Commissions Forum of Southern African Development Community Countries (SADC-ECF), builds on similar work undertaken by AfRO together with the Open Society Initiative for East Africa (OSIEA) in 2015 and the Open Society Initiative for West Africa (OSIWA) in 2011. Findings and recommendations from this pan- African initiative are expected to increase information and knowledge on the strengths, weaknesses and workings of EMBs in sub-Saharan Africa with a view to facilitating peer learning among African election managers, as well as informing policy-makers, legislators, governments and civil society on a progressive reform agenda to strengthen inclusive electoral processes and democratic practice. In Southern Africa, EMBs whose states are members of the SADC are organised under the SADC-ECF. Established in 1998, the SADC ECF seeks to strengthen EMBs in the SADC region as well as promote conditions conducive to free, fair, credible and transparent elections. This it does primarily through peer learning and capacity building of its membership. Pursuant to this mandate, in 2003, the SADC-ECF partnered with the Electoral Institute for Sustainable Democracy in Africa or the Electoral Institute for Southern Africa (EISA), as it was known then, to develop and adopt Principles for Election Management, Monitoring and Observation in the SADC Region (PEMMO). Since then, the PEMMO have been the guiding principle of the SADC-ECF’s work on the management, monitoring and observation of elections in SADC member states. In 2007, the SADC-ECF added to its toolbox, the Principles on the Independence of EMBs in the SADC Region. By establishing and nurturing this partnership with the SADC- ECF (and its 15 EMB membership), both OSISA and AfRO seek to not only promote co-ownership of the research process by EMBs, but also, very importantly, ensure that findings and recommendations from the study are fed directly into the formal decision- making processes of the organisation and through it the respective EMBs’ national-level processes, as necessary. Through its membership, the SADC-ECF is well placed to bring regional best practices to bear at the national level. This study, the largest of the three studies covering East, West and Southern Africa covers Angola, Botswana, Democratic Republic of the Congo (DRC), Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Zambia and Zimbabwe. v ELECTION MANAGEMENT BODIES IN SOUTHERN AFRICA While Tanzania is a member of the SADC-ECF, the country was not included in this study as it was covered in the East African study. For each of the 12 countries, researchers focused on: • A comparative analysis of the legal frameworks the EMBs operate under and of the historical and political contexts they function within; • A comparative study of the institutional nature of the EMBs; • An assessment of the powers vested in the EMBs in the conduct and management of electoral processes with particular reference to the preparation, management and updating of electoral registers; the identification and updating of electoral constituencies; roles in the drafting of electoral laws; the conduct and