EU Election Observation Mission Zimbabwe Harmonised Elections 2018 Preliminary Statement Page 4 of 12 1 August 2018 were not adopted, resulting in some provisions of the Act not being fully aligned with the Constitution. These concern mostly the reinforcement of the independence of the ZEC in relation to the executive and the non-expansion of the right to postal voting to people in the diaspora, homebound voters and voters in hospitals and penitential institutions. Other shortcomings in the Electoral Act undermine the effectiveness of the electoral process. These include, the inclusion of restrictive provisions on voter education conducted by persons other than ZEC, the absence of spending limits and of transparency and disclosure requirements on campaign contributions, the lack of provisions on the misuse of state resources, as well as the lack of enforcement mechanisms to sanction campaign and media violations. The Act equally does not include an obligation on ZEC to publish election results to polling station level, nor does it offer defined mechanisms for ZEC to examine and resolve complaints filed by citizens, as provided for by the Constitution. Election Dispute Resolution The right to a legal remedy is foreseen for in the Constitution, which also empowers ZEC to receive and resolve complaints filed by citizens and to take appropriate action. However, the Electoral Act does not contain administrative complaint mechanisms, except for those related to voter registration. Hence, election-related disputes are resolved only by the judiciary, resulting in protracted adversarial processes which, considering the absence of time limits for the delivery of judgements in pre-election court challenges, do not always ensure timely and effective legal remedies.2 Moreover, the limited constitutional independence and transparency in the appointments of the Chief Justice, the Deputy Chief Justice and the Judge President of the High Court, and the opaque system of allocation of election-related matters to judges by the Judge President of the High Court, has led to limited confidence in judicial impartiality on the part of stakeholders. This has been further compounded by a number of controversial judgments related to elections. Some 50 applications have been filed with the courts, dating back several months before the proclamation of the elections and until two days before the polls. Despite claims that many of these were frivolous and politically-motivated, it is noteworthy that ZEC is vulnerable to legal challenges not only because some provisions of the Electoral Act are not fully in line with the Constitution, but also due to its interpretation and implementation of the law, as well as of its understanding of the rights and obligations bestowed on it by the Constitution.3 The only significant court cases to succeed related to the obligation of traditional leaders to be politically neutral, the voting rights of “alien” citizens, the deployment of teachers as polling staff on Election Day, and the provision of the final voter roll to an applicant. Regrettably, important matters, relating to the independence of ZEC, the diaspora vote, release of the provisional voter roll, transparency in electoral operations, the protection of school children from enforced participation in political activities, ZEC’s 2 There were even some urgent chamber applications filed to compel the High Court to hear applications that were already pending before it. In addition, a recent ruling of the High Court dismissed an application for a declaratory order compelling ZEC to comply with its constitutional obligation of transparency in the exercise of its operations, citing its lack of jurisdiction to intervene in ZEC’s functions in the absence of illegality, which further limited the protection of the electoral rights of citizens. 3 In one court application requesting ZEC, inter alia, to disclose its operating procedures, ZEC argued that it has the discretion formulate rules and procedures as to how it operates and that the request for transparency would interfere with its functions. In another application, to require ZEC to share a copy of the provisional voter roll, ZEC argued on appeal that the court, by ordering that it provide a copy of the provisional voter roll, sanctioned an undue infringement of its constitutionally guaranteed independence.