IFES supports citizens’ right to participate in free and fair elections. Our independent expertise strengthens electoral systems and builds local capacity to promote sustainable democracy. Addressing Election Disputes and Election Offenses in Zimbabwe Challenges around an election should not necessarily be perceived as weakness in the system, but as evidence of the strength and openness of the political system.1 The International Covenant on Civil and Political Rights (ICCPR) requires that any person whose right to vote and be elected has been violated must have an effective remedy.2 Because elections are a process, complaints and violations can occur throughout the electoral cycle (as illustrated in Figure 1 below), and the effective resolution of these complaints is integral to the integrity and legitimacy of an election. According to international standards,3 if the rules governing the resolution of election complaints are unclear or do not provide for effective remedies,4 or if arbiters are not independent and impartial,5 the adjudication process can destabilize governments, undermine public trust and engender violence.6 terms of specialist expertise and timely adjudication of complaints, and the special procedures put in place for offenses of politically motivated violence and intimidation led to more effective referrals for these offenses during the 2018 election process. However, in 2018 international observers also noted, “The overall… handling of election disputes highlights that the right to an effective legal remedy is not adequately provided for,”7 which suggests room for further improvements. Several parts of the electoral process in Zimbabwe also lack a clear complaints and appeals mechanism under the law, including the delimitation of constituencies, political party registration and the polling and counting process.8 The legal framework needs a clear right of appeal for all parts of the electoral process.9 In Zimbabwe, jurisdiction for the resolution of election disputes and the prosecution of election offenses is shared among several institutions, with the judiciary playing a primary role. The establishment of a permanent Electoral Court is a positive step in 1 Denis Petit, 2000, Resolving Election Disputes in the OSCE Area: Towards a Standard Election Dispute Monitoring System, OSCE/ODIHR, page 5 2 International Covenant on Civil and Political Rights (ICCPR) Article 2(3) 3 International standards for EDR are set out in Vickery, C. Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections, 2011 as follows: (1) a transparent right of redress; (2) clearly defined election standards and procedures; (3) An impartial and informed arbiter; (4) a system that judicially expedites decisions; (5) established burdens of proof and standards of evidence; (6) the availability of meaningful and effective remedies; and (7) effective education of stakeholders. 4 Steven H. Huefner, Remedying Election Wrongs, 44 Harv. J. on Legis. 265, 288 (2007). 5 ICCPR, Article 14, § 1. The language used in the ICCPR can be traced back to Article 10 of the Universal Declaration of Human Rights. 6Electoral Justice: The International IDEA Handbook (2010), p. III, https://www.idea.int/ sites/default/files/publications/electoral-justicehandbook.pdf Role of the Zimbabwe Election Commission in Election Dispute Resolution In Zimbabwe, while the 2013 Constitution gives authority to the Zimbabwe Electoral Commission (ZEC) to receive and resolve complaints,10 the Electoral Act does not provide for a comprehensive administrative dispute resolution process.11 Rather, different types of pre- and postelection complaints and violations fall under the jurisdiction of the courts, as outlined in the table below. The lack of a clear administrative process in the law challenges the ZEC’s constitutional mandate to resolve disputes and ensure the integrity of the election, and as international observers noted in 2018, “election-related disputes are resolved only by the judiciary, resulting in protracted adversarial processes which...do not always ensure a timely and effective legal remedy.”12 As observers have recommended, it is important to institute a ZEC-led administrative complaints mechanism that allows for timely and effective remedies for voters and candidates, particularly in the pre-election phase, and for the ZEC to fully embrace its consitutional election dispute resolution (EDR) mandate.13 Fig 1: Disputes and violations throughout the electoral process 7 European Union Election Observation Mission (EU EOM) Final Report, https://eeas.europa.eu/ sites/eeas/files/eu_eom_zimbabwe_2018_-_final_ report.pdf, page 40 8 A review of the Electoral Act reveals that appeal provisions for these parts of the process are missing from the law. See also European Union Election Observation Mission (EU EOM) Final Report, https://eeas.europa.eu/sites/eeas/files/eu_ eom_zimbabwe_2018_-_final_report.pdf, page 9 9 The right to an appeal is a key component in ensuring access to an adequate remedy. International human rights conventions all recognize, implicitly or explicitly, the fundamental value of an appeals mechanism. See ICCPR, Article 14, § 5; American Convention, Article 8(2)(h); Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 2, Nov. 22, 1984. The Venice Commission code of good practice also provides (at paragraphs 92 and 93) that individual citizens and candidates should be able to fully challenge any electoral irregularities, before an election tribunal, electoral commission or regular court. 10 Constitution of Zimbabwe 2013, Article 239 (k) 11 Section 190 of the Electoral Act does provide that a person aggrieved by a decision of the ZEC or its employees may file a complaint and the ZEC can order “appropriate remedial action.” The law does not clarify what this action might be. 12 European Union Election Observation Mission (EU EOM) Final Report, https://eeas.europa.eu/ sites/eeas/files/eu_eom_zimbabwe_2018_-_final_ report.pdf, page 40 13 Ibid. IFES | 17 Hodson Avenue | Alexandra Park | Harare, Zimbabwe | www.IFES.org

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