An independent Zimbabwe Electoral Commission (ZEC) is a fundamental pillar of electoral democracy. This is why ZEC is one of the Chapter 12 commissions, described as independent institutions established specifically to support democracy. However, even though the Constitution establishes rules and principles to protect this independence, there are external factors that can compromise ZEC and similar commissions. For example, when the government withholds funding to ZEC and it is unable to carry out its functions, this severely undermines its independence. ZEC doesn’t have to beg or depend upon the mercy of government ministries for funding. Yet this is precisely what is happening at ZEC, where the Chairperson, Justice Rita Makarau, has pleaded institutional poverty for its failure to carry out its constitutional function of registering voters on a continuous basis.
However, there is another factor, namely the conflict of interest affecting the Chairperson, which also compromises the independence of ZEC and the judiciary. I first wrote about this in 2014, when it emerged that Justice Makarau was still exercising functions as the acting Secretary of the Judicial Services Commission (JSC), a constitutional body responsible for the administration of the judicial arm of the state. It has various roles, including the appointment and removal of judges, the Prosecutor-General and other public officers. It also advises government on matters pertaining to the judiciary and the welfare of judges.
The administrative arm of the JSC is headed by a Secretary and this is a position which Justice Makarau held during her time as a serving judge of the Supreme Court, before her appointment as head of ZEC. However, 3 years after she took on her role at ZEC, Justice Makarau is still the Secretary of the JSC. She is holding two important roles at two constitutional commissions, which is an anomaly. However, worse, the situation exposes her to conflicts of interest at various levels.
First, she is serving two constitutional bodies where her functions in respect of both might come into conflict. As head of the administrative arm of the JSC, she might be called upon to deal with conditions of service for judges and to represent them in their negotiations with government. For example, in 2014, it was reported that newly-appointed judges were demanding farms from the state as part of their conditions of service. Justice Makarau, as acting Secretary of the JSC was handling the matter on their behalf. Yet, as principal head of ZEC, which is frequently exposed to litigation, her role and functions might come under judicial scrutiny from time to time. The same judges whom she represents at the JSC will be required to make judicial pronouncements on her role and conduct of affairs at ZEC. A number of matters pitting ZEC against aggrieved parties have already come before the courts and the handling of the cases has left a lot to be desired. One such case was a matter relating to the voters’ roll, in which ZEC first denied its constitutional responsibility, alleging that it was awaiting realignment of laws before later claiming that it would register voters but only in constituencies where by-elections were being held. The courts took a more lenient view of ZEC in that case, despite its obvious inconsistency and hypocrisy.
The whole point of creating the JSC was to ensure there is administrative independence for the judiciary. This is why a serving judge is appointed at the Secretary of the JSC. This is, however, compromised if someone who is not currently serving on the bench presides over its administration. While Justice Makarau did not resign from the Supreme Court when she was appointed head of ZEC in 2013, and she has an option to return to her old role in future, she is not currently serving as a judge. There is a good reason why a person cannot perform his/her functions as a judge while he/she is chairing ZEC. But if this is prohibited, it follows that one cannot be Secretary of the body that administers and represents the judiciary while they are chairing ZEC. If Justice Makarau cannot sit as a judge while she is ZEC Chairperson, then surely she can’t be running the affairs of the judiciary as the Secretary of its administrative arm.
In any event, the nature of her functions as head of ZEC and the sensitivities attached to that office require complete independence and avoidance of perceptions of conflict. Litigants must be able to take action against the ZEC Chair and ZEC without concerns that the matter will be handled by judges whom she also represents at the JSC.
The Zimbabwean bench has no shortage of judges to take on the role of Secretary at the JSC. An the individual level, the ZEC Chair also needs to assess carefully whether or not she wants to serve ZEC exclusively during the period of her tenure. Given the contentious nature of elections, and the amount of work that needs to be done, the role of Chair at ZEC requires exclusivity.
But why has she held on to both roles at once? It is highly probable that this has much to do with the severe lack of funding at ZEC and poor conditions of service for the commissioners, which leaves them at the mercy of the state. This may have necessitated Justice Makarau’s retention of office at the JSC which enables her to draw income and benefits. If that is the case, it is embarrassing that the country’s top elections officer has to moonlight as an officer of another constitutional commission. It compromises the dignity of her office and the independence of herself, ZEC, the JSC and the judges. The solution is for the state to ensure ZEC is adequately funded.
The current demands for electoral reforms must insist on a separation of roles. If Justice Makarau prefers to return to the bench, then that is what she must do. If she should remain the ZEC Chairperson, then she must withdraw from her role as Secretary of the JSC. It is the professional and responsible thing to do.
waMagaisa
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