The Sunday Mail
Adv Tinomudaishe Chinyoka
Following the just-ended harmonised elections in Zimbabwe and publication of the SADC Electoral Observer Mission (SEOM) preliminary report, there has been a lot of opinions expressed about the import of the document and what comes next.
However, the main theme being pushed on social media and other circles by those who are dissatisfied with the choices made by a plurality of Zimbabwean voters is that SADC will order fresh elections in Zimbabwe under its supervision or, at the very least, order there be in “inclusive government” in Zimbabwe until the next elections.
These views, unfortunately, are grounded in ignorance and lack of knowledge about international law and the role of organisations such as SADC. It is necessary that this ignorance be examined and light, that is readily available to the reader, be shone on what is, in fact, the very definition of nothingness.
To put it in the words of Shakespeare, without editing, the SEOM report is, in fact, “nothing but a tale, told by an idiot, full of sound and fury, signifying nothing”.
Why do I say this?
The starting point is that the entire international law is underpinned by the principle that each nation is equal and cannot legislate for what happens in another nation.
Nations (or a group of nations like SADC) treat other countries by behaving in the same way or by giving each other similar advantages that they receive.
Called the principle of reciprocity, it is expressed at its most basic and recognisable form as “do unto others as you would have them do unto you” or, at its most archaic form, as Thomas Hobbes’ Second Law of Nature: “A man be willing, when others are too, as far forth for peace and defence of himself, be contented with so much liberty against other men as he would allow other men against himself.”
Secondly, there is no body of statutes called “international law”.
The International Court of Justice (ICJ)’s formulation is that international law is made up of international conventions, international custom as evidence of general practice, general principles of law recognised by civilised nations and, in terms of Section 59 of the ICJ statute, judicial writings and teachings on rules of law by imminent scholars.
This formulation is generally regarded by states and scholars as reflective of the sources of international law.
The rules of international law are, thus, ones not imposed on states from some place, but rather grow out of their reciprocal interactions over time through practice and become established as customary international law.
Because of the mutual respect they give each other, these rules have become the most efficient way towards avoiding international friction and for accommodating the collective self-interest of all states.
Reciprocity, the principle that nations return like behaviour for like behaviour, is a sort of a tit-for-tat strategy, and permits cooperation among states when no authority for enforcement of agreements exists.
SADC states cannot nullify another state’s elections just as they will not want the same states nullifying theirs.
International law, in this sense, exists on the goodwill of states, which expect to be treated in the manner they treat other countries, because there is no overarching legal authority with compulsory jurisdiction to enforce agreements.
In this context, electoral observer missions are invited by a state holding polls because it knows and expects that other countries will also invite it when they, in turn, hold their elections.
They are invited not as an arbitrator but observer: the role is as it says on the tin.
The SEOM has no power to pass judgment such as would nullify what they have observed. Their observations are part of a mechanism to promote and enhance democracy in the region. Reciprocity underpins all international treaties, including the SADC Treaty, and has become an important element in relations between sovereign nations and in the body of existing international law.
The Draft Declaration of the Rights and Duties of States of the International Law Commission laid out the general principles of reciprocity as follows:
Article 2: Every state has the right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognised by international law.
Article 3: Every state has the duty to refrain from intervention in the internal or external affairs of any other state.
Article 5: Every state has the right to equality in law with every other state.
In this regard, election observer missions do not go into a country to judge the laws of the country against either their own laws or some idealistic norm, but recognise the sovereignty of the receiving state and sanctity of its laws as long as the said laws are of general application and are consistent with the constitution of that nation and not in violation of any international treaty obligations.
It is in this context that the United Nations (UN) places emphasis on the need for election observer missions to not only seek the invitation of the receiving state but also to strive to be impartial.
This means even in their composition, international observer teams must strive to avoid including political actors, who might have sympathies with local politicians in the receiving state.
Generally, they must avoid political actors altogether as political party observers will be perceived as the least impartial and objective observers.
The UN also says it is good practice for international observation teams to keep themselves separate from domestic groups in order to preserve their image of impartiality, since the credibility of their assessment and conclusions will depend, to a large extent, on whether they are perceived as neutral and impartial.
In this regard, social media images of observer mission members handing out business cards to political actors, or attending as invited guests at press conferences where they are given a prominent role, are not reassuring.
Yet, despite all these safeguards, the UN accepts that international observers are typically less knowledgeable about the country they are observing, and a few will bring their own biases to the observation.
The assessment of their reports must therefore not just be alive to this fact, but look at the areas where the composition of the mission might have been skewed away from impartiality and towards bias.
In effect, when observer missions do not owe or do not consider themselves bound by the principle of reciprocity, then there is nothing that regulates their work towards impartiality.
In the Zimbabwe context, an observer mission from a state or foreign political formation that favours sanctions or believes that the ruling party must be removed from power will be primed to “observe” issues that confirm these predispositions.
This is a form of confirmation bias, which refers to the tendency to seek out, interpret and prefer information that supports our preexisting beliefs and preferences, as a result of which one tends to ignore any information that contradicts those beliefs.
SADC, like many bodies that are affiliated with the UN human rights system, recognises that election observation is a valuable tool for improving the quality of polls as observers help build public confidence in the honesty of electoral processes, as well as help promote and protect the civil and political rights of participants in elections.
This much is clear from the SADC Principles and Guidelines Governing Democratic Elections (the SADC Principles).
These recognise, just as the UN does, that the correction of errors or weak practices, even while an election process is still under way, the deterrence of manipulation and fraud and exposing such problems if they do occur can all come from good election monitoring.
Positive observer reports build trust in the democratic process and enhance the perception of legitimacy of the governments that emerge from elections.
Because negative observer reports have a bearing on the perceived legitimacy of the government that is elected, they should not be issued without absolute fidelity to the facts and impartiality.
The SADC Principles build from the SADC Treaty, Article 4, which stipulates that “human rights, democracy and the rule of law” are principles guiding the acts of its members.
Article 5 commits member states to “promote common political values, systems and other shared values which are transmitted through institutions, which are democratic, legitimate and effective . . . and to consolidate, defend and maintain democracy, peace, security and stability” in the region.
The SADC Protocol on Politics, Defence and Security Co-operation provides that SADC shall “promote the development of democratic institutions and practices within the territories of State Parties and encourage the observance of universal human rights as provided for in the Charter and Conventions of the African Union and the United Nations.”
In addition, the Strategic Indicative Plan for the Organ (SIPO), as the implementation framework of the Protocol, emphasises the need for democratic consolidation in the region, aimed at enhancing the transparency and credibility of elections and democratic governance, as well as ensuring the acceptance of election results by all contesting parties.
The SADC Principles are, thus, not only informed by the SADC legal and policy instruments but also by the major principles and guidelines emanating from international conventions, including the OAU/AU Declaration on the Principles Governing Democratic Elections in Africa — AHG/DECL.1 (XXXVIII) and the AU Guidelines for African Union Electoral Observation and Monitoring Missions — EX/CL/35 (III) Annex II. They offer a comprehensive list of the role that is played by observers.
In terms of Paragraph 3.1 of the SADC Principles, in the event a Member State deems it necessary to invite SADC to observe is elections, the SADC Electoral Observation Missions (SEOM) have an observation role.
The mandate of the mission shall be based on the Treaty and the Protocol on Politics, Defence and Security Cooperation.
Paragraph 6.1.11 of the SADC Principles provides that the SEOM shall send regular reports on the electoral observation process to the Representative of the Organ on issues that may require urgent consideration.
There does not appear to be a provision in the SADC Principles about the issuance of a report on the legal framework of the nation being observed as was done by the SEOM to Zimbabwe for the August 23 elections.
Instead, the SADC Principles give a specific mandate to the SEOM in paragraph 6.1.12 to issue a statement on the conduct and outcome of the elections immediately after the announcement of the result, with a final report to be issued after 30 days.
While such final report might conceivably include issues around the legal framework governing elections and perhaps the rule of law situation in so far as it impacts on the election, there is certainly no mandate in the guidelines for SEOM to issue the kind of preliminary report as the one issued by the Mission to Zimbabwe.
To guard against partisanship and/or impartiality, the SADC Principles have very comprehensive rules on the conduct of each SEOM as follows:
5.1.1 Must comply with all national laws and regulations;
5.1.2 Shall maintain strict impartiality in the conduct of their duties, and shall at no time express any bias or preference in relation to national authorities, parties and candidates in contention in the Election process. Furthermore, they will not display or wear any partisan symbols, colours or banners;
5.1.4 Shall immediately disclose to the relevant SADC structures any relationship that could lead to a conflict of interest with their duties or with the process of the observation and assessment of the elections;
5.1.5 Will base all reports and conclusions on well documented, factual, and verifiable evidence from multiple number of credible sources as well as their own eye witness accounts;
5.1.6 Shall seek a response from the person or organisation concerned before treating any unsubstantiated allegation as valid;
5.1.7 Shall identify in their reports the exact information and the sources of the information they have gathered and used as a basis for their assessment of the electoral process or environment;
Reports in the media that have shown a relationship between the current chair of the SADC Troika, who appointed the head of the SEOM, as read with the SEOM report on Zimbabwe’s elections of August 23, which appears to repeat (sometimes verbatim but without attribution) the talking points of the main opposition in Zimbabwe, would suggest that these principles were violated.
Obviously, the principle underpinning the SADC Principles, being the promotion of good electoral practice in the region, is undermined when a particular SEOM strays from its mission and gets entangled in local politics.
The fact that the head of the SEOM then went to Zambia and gave a two-hour long interview on television to the Zambian people complicates the matter further: SEOM is a SADC body, the nationality of its members is not material.
When its members feel the need to advance party political positions and justify their actions to their President or supporters based on their own personal affiliations and positions, its role as an impartial observer is further diminished.
There is no mandate in the SADC Treaty for the SEOM Report to lead to any decision by SADC.
As such, no matter what any report might say, SADC cannot and will not “act” on the basis of the report because SADC does not supervise its constituent members.
SADC is not a higher authority than any of its member states when it comes to the internal affairs (or indeed foreign policy) of its members.
There can be no decision from SADC as a result of the SEOM Report because SADC has no such power.
There can be no fresh elections supervised by SADC because the constitution of Zimbabwe reposes that power in the Zimbabwe Electoral Commission, and those elections have been held.
So, following the SEOM Report, it is correct that there will definitely be new elections in Zimbabwe in or around July or August 2028, in terms of our Constitution.
Advocate Tinomudaishe Chinyoka is a legal practioner.
