EU Election Observation Mission Zimbabwe Harmonised Elections 2018 Preliminary Statement Page 5 of 12 1 August 2018 almost exclusive right to conduct voter education, the right of voters with visual impairments to a secret ballot, the handling of postal voting and allegations of interference with the political neutrality of traditional leaders by the President during his campaign activities,4 were dismissed, mostly by the High Court but a couple also on appeal5. Notably, a high number of cases were dismissed on technical grounds, despite the constitutional requirement that the rules of court “must ensure that the court (…) is not unreasonably restricted by procedural technicalities.” Despite some exceptions, there has been a serious delay by the courts in either setting down dates for a hearing or in delivering judgments in a timely manner. Furthermore, the 1995 Electoral Act Applications, Appeals and Petitions Rules are overly formalistic and onerous, with some provisions de facto restricting the right of access to justice. In addition, concerns remain over the amount of security costs to be paid in advance by a petitioner, which were extremely high in previous elections.6 3 Electoral Administration Administrative arrangements for polling were in place, but ZEC lacked transparency and inclusivity; and further enhancement of the level of trust stakeholders, including voters, have in its independence and in the electoral process The Constitution establishes ZEC as an independent body with a wide mandate to conduct elections, voter registration, delimitation of constituencies, voter education, to print ballot papers and to accredit observers. ZEC’s independence is to some degree undermined, however, by the involvement of the Ministry of Justice, Legal and Parliamentary Affairs in the approval of regulations adopted by the Commission. Further, the complaint that large numbers of ZEC staff are former security force personnel, and had been employed during previous contentious elections, was never fully clarified by the institution, raising concerns regarding impartiality. ZEC put in place the administrative arrangements to ensure that polling took place on schedule on 30 July, including the recruitment and training of some 130,000 staff. ZEC also included party agents in their staff training session. A number of legal and administrative changes made a positive contribution to the process. The change to a system of polling station-based voting as opposed to ward-based voting was positive as it enhanced integrity measures. Increasing the number of polling stations, by splitting those of busy urban areas in particular, was welcomed in order to try to alleviate overcrowding in those places. Legal amendments to limit the printing of excess ballots to no more than 10% and the 2014 decision to provide for MPLCs were also welcomed as good practices which could enhance confidence and communication respectively. However, both of these potentially positive measures were somewhat undermined by the conduct of ZEC’s management, which often lacked inclusivity, transparency or effective communications. Given the low base of trust in the electoral process among many stakeholders, a more inclusive and transparent approach by the election management body should have been a priority and ZEC could have used discretionary powers to provide for transparency. The printing of ballot papers became a highly 4 While in office, the President is not liable to civil or criminal proceedings for actions done in his personal capacity. It is noteworthy that the Supreme Court, in upholding two appeals filed by ZEC and ZANU PF regarding the provisional voters roll and the participation of school children in political rallies respectively, based its decisions on a technical ground that was not even raised by the applicants. 6 The Electoral Regulations 2005 as updated to 1 st June 2018 and the Electoral (Amendment) Regulations 2013 stipulate that the security costs should be not less than 500 US$. The exact amount is fixed by the Registrar after consultation between the ZEC and the Chief Justice. All EU EOM interlocutors criticised the 10,000 US$ security costs which were set prior to the 2013 elections. 5