would mean a more inclusive appointment process, which in theory may prevent
partisanship.
The SIC will be chaired by a person representing the ZHRC and will consist of the
special police liaison officer for the relevant province, two representatives of each
political party taking part in the election. The SIC will direct the special police
liaison officer to investigate cases of politically-motivated violence and
intimidation during election periods and may also take on a hands-on role in the
investigations. This multi-party body would in theory be inclusive and therefore
work collectively to deal with violent activity.
Further, the Commission may, following an investigation by the SIC, warn
persons accused of violence or refer the matter for prosecution by a special
prosecutor designated for the purpose by the Attorney-General. They will be
prosecuted before a special magistrate designated by the Judicial Service
Commission. There is also provision for the creation of special police units to
carry out expeditious investigations.
What we have set out above is the theoretical framework as envisaged in the
proposed legislation. On a quick glance, it would appear, in theory, to be a fairly
robust legal structure for curbing and dealing with politically motivated violence
and intimidation during elections. Indeed, if everything were equal, the
mechanisms set up might be expected to yield desirable results. The problem,
however, is that the theoretical framework has to be implemented by human
agents whose weaknesses may derail an otherwise noble cause. Experience has
shown that it is not enough to have beautiful laws designed to curb violence.
Those laws need to be complemented by professionally independent human
agents charged with implementing those laws. The structure will therefore
succeed or fail depending on the attitude and conduct of the men and women
charged with ensuring the laws work.
Human Factor
Now, although the law requires that the SPLO is to be appointed by the Police
Commissioner General “in consultation with” the ZHRC, there is no guarantee
that the Commissioner General will not act unilaterally. Indeed, we have already
seen controversy over senior government appointments – ambassadors,
Governors, etc which have been done unilaterally by ZANU PF to the chagrin of its
partners in the Inclusive Government. Challenging those decisions will be timeconsuming and even if successful the result may only be of academic importance
unless the courts decide on the matters expeditiously.
Also, even if the SIC brings matters to the AG’s Office for prosecution, there is no
guarantee that all matters will be prosecuted. Indeed, there is always the risk of
selective application of the law – so that matters adverse to one political party
may be swept under the proverbial carpet. The AG will argue that the
Constitution obliges him not to be directed by any person in the execution of his
duties. Therefore much will turn on the integrity and professional independence of
the Attorney General.
Fit and Proper Test
Yet, evidence shows that holders of the offices of the Attorney General and the
Police Commissioner General have made no secret of their support for and
allegiance to ZANU PF, a key contestant in the elections. As key players in the
enforcement of electoral laws, holders of these offices are expected to
demonstrate impartiality and exercise professional independence, regardless of
their personal political preferences. It is impossible to see how they can be
regarded as fit and proper persons to exercise the functions required of them by
the constitution. It is fair to say that persons of that calibre are not fit for
purpose.
2