Opposition supporters calling for free and fair elections outside the offices of the Zimbabwe Electoral Commission in Harare in 2018. Jeksai Njikizana/AFP via Getty Images.
In a preliminary statement issued on the 25th August, the Carter Centre observer mission recommended that the Zimbabwe Electoral Commission [ZEC] should publish polling-station results. The mission said:
“Given the highly polarized environment and lack of trust among political stakeholders, it is now especially critical for the ZEC to publish detailed results at the polling station level, allowing political parties and observers to cross-verify the results, in accordance with international best practice, to help ensure the transparency and credibility of the election process.”
Others have taken up the call but ZEC has refused to publish polling station returns (form V11s), saying that no law compels it to release results in that format, i.e. disaggregated by polling station.
ZEC may be right that the law does not compel it specifically to publish V11 forms, but more broadly ZEC is very wrong indeed, as we shall explain.
Publication of Results : the Law
In terms of section 64 of the Electoral Act, after votes have been counted at a polling station the presiding officer must, for all the elections held there:
- record on a polling station return, in form V11, the votes obtained by each candidate and the number of spoilt and rejected ballot papers,
- show the return to everyone present,
- provide each of the candidates or their election agents with a copy of the return, and
- affix a copy of the return on the outside of the polling station so that it can be seen by the public and the public can record its contents.
Hence the Act requires presiding officers to be completely transparent about polling station returns: they must show the returns to everyone present, give copies to all interested persons, and display them outside their polling stations so that the public can inspect them and record their contents.
Having done all this, the presiding officer must send the return, together with the ballot boxes and electoral papers, to the ward centre. There, in terms of section 65 of the Act, all the polling station returns are verified and collated in the presence of candidates and their agents and any election observers, and a ward return is prepared showing the collated results. This return must also be shown to everyone present, copies given to candidates and their agents, and a copy displayed outside the ward centre so that it can be inspected and recorded by anyone who wishes to do so.
Much the same procedure is followed at constituency and provincial levels and, in the case of a presidential election, at the national level: sections 65A, 65B and 110 of the Act.
The important point is that everything is done openly: the returns are prepared in the presence of interested parties, copies are given to interested parties, and members of the public can inspect the returns and make copies of them.
The Act does not however oblige ZEC to publish or disclose the returns after the election results have been announced. So in a narrow legal sense ZEC is correct: the law does not expressly compel it to release the polling station returns.
The Broader Issue: Transparency
In a broader sense, however, ZEC is very wrong in refusing to publish the returns or allow them to be inspected. If ZEC were to publish or disclose them electoral transparency would be enhanced because the election results could be verified independently by interested parties.
The twin themes of transparency of elections and verifiability of results run through the relevant provisions of the Constitution, the Electoral Act and international standards.
The Constitution
Section 156 of the Constitution states that:
“At every election … the Zimbabwe Electoral Commission must ensure that—
(a) whatever voting method is used, it is simple, accurate, verifiable, secure and transparent”.
ZEC’s main function under section 239 of the Constitution is:
“(a) to prepare for, conduct and supervise—
(i) elections to the office of President and to Parliament;
…
and to ensure that those elections … are conducted efficiently, freely, transparently and in accordance with the law”.
The Electoral Act
Section 3 of the Act sets out general principles by which all elections must be held, and the first of these principles is:
“the authority to govern derives from the will of the people demonstrated through elections that are conducted efficiently, freely, fairly, transparently and properly …”
International instruments and standards
The African Charter on Democracy, Elections and Governance [link] continually emphasises that elections must be regular, free, fair and transparent. For example, article 3.4 enjoins State Parties to abide by the principle of:
“4. Holding … regular, transparent, free and fair elections”.
One of the objectives of the SADC Principles and Guidelines Governing Democratic Elections, according to article 2.1.3, is to:
“Promote the holding of regular free and fair, transparent, credible and peaceful democratic elections to institutionalise legitimate authority of representative government”.
More specific guidance on what constitutes acceptable transparency, and on the verification of election results, is contained in the International Electoral Standards published by the International Institute for Democracy and Electoral Assistance [link]. In Chapter 13 there is the following passage:
“The legal framework should require that all relevant counting documents other than the ballots, such as election protocols, tabulation and tally sheets, and decisions determining or affecting election results, be publicly accessible. Such electoral documents should be publicly posted at all levels of election administration, including the polling station, municipal, and state EMB [Election Management Body] levels. Detailed tabulations of overall results, including the voting results in each polling station, should be posted at each election office. These detailed tabulations should also be published in state-owned or -controlled print media, in the official gazette and, wherever possible, on the website of the EMB as soon as the results are certified.”
In the interests of transparency, therefore, ZEC should publish the polling-station returns or allow them to be inspected so that the official election results can be verified.
Conclusion
It is not only the interests of transparency that demand the returns be published or disclosed. ZEC’s own reputation is at stake. For an election to be credible it must be conducted by an electoral body that is regarded by all sides as competent, honest and impartial. ZEC’s reputation for competence is questionable, to say the least, after its conduct of last month’s election. Now it has put its own honesty and impartiality into question by refusing to publish the polling station returns or allow them to be examined. The reason it has given for its refusal – that the law does not compel it to reveal them – is fatuous and gives rise to a suspicion that there is another darker reason which ZEC is trying to conceal. Election rigging, perhaps?
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Post published in: Featured