IN law, we are always taught that when regulating, we look at the mischief. The mischief is defined as the problem that we are trying to solve; the actual problem.
In practice, we learn that there is the other side to mischief: mischievously using the law to entrench nefarious intents. Section 66A of Zimbabwe’s Electoral Act gives us a perfect case study.
The section is titled “Unofficial or false declaration of results prohibited”. The summary of this provision is that it is a badly framed provision seeking to stop people, who are not the Zimbabwe Electoral Commission (Zec) from announcing election results and declaring winners.
In a recent Sapes Trust dialogue on Zimbabwe’s preparedness for the upcoming polls, the question dominated discussion of whether people can or should be stopped for announcing what they are seeing as election results.
Last week I then got a question, this time coming from journalists: can journalists publish what parties may be pronouncing as election results, and can journalists report on the results as they are seeing them?
The Electoral Act
On August 20 2014, Electoral Amendment Act (No. 6) took effect, and introduced a new section 66A. It says as follows:
“66A. Unofficial or false declaration of results prohibited (1) Subject to subsection (3), any person who—
(a) purports to announce the result of an election as the true or official results; or
(b) purports to declare any candidate to have been duly elected; before an electoral officer, acting in accordance with this Act, has announced the result of that election or declared a candidate to have been duly elected in that election, as the case may be, shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
(2) Subject to subsection (4), any person who, with intent to deceive or to discredit the electoral processes in an election, falsely—
(a) reports or announces the number of votes received by a candidate or political party in an election; or
(b) declares any candidate to have been elected in an election; shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
(3) Subsection (1) shall not be construed as preventing any person from reporting the number of votes received by a candidate or political party in an election, where the report is based on polling station returns and constituency returns from the election concerned.
(4) Subsection (2) shall not be construed as preventing any person from making any allegation regarding the result or conduct of an election in or for the purposes an election petition.”
I said earlier this law is badly written. I say so for two reasons: its heading suggests that it prohibits “unofficial” “or false” declaration or election results, suggesting that all forms of pronouncements of results other than by Zec is prohibited.
The body of the provision then suggests that the prohibition is only on pronouncing results and claiming them to be “official” and declaring a candidate as duly elected.
So, the heading and the substance contradict each other. The “or false” in the heading incoherently suggest that pronouncement becomes prohibited when false, but not when true. But we may not need to read much into this, because under our rules of statutory interpretation, headings are not part of the law – just interpretive aids. So, in this case, we will go with the content on
the provision, which at proper reading prohibits purporting to announce the result of an election “as the true or official results” or purporting to “declare any candidate to have been duly elected”.
This suggests that when one announces results but does not suggest them to be true and official, and does not declare a winner, they have committed no offence.
What is actually prohibited is to announce results “as the true or official results and/or to declare any candidate to have been duly elected”. This does not mean you cannot announce results as preliminary and yet-to-be-confirmed.
And this does not mean suggesting that a certain candidate is winning or appears to have won is prohibited. The clause also prohibits “intently deceiving or discrediting the electoral processes by falsely” reporting or announcing the number of votes received by a candidate or political party in an election or declaring any candidate to have been elected in an election.
So, if there is no intention to deceive, and if the announced results — which are announced as preliminary — are true and correct, then there is no offence.
That is what a plain reading of this provision suggests. The mischief, is to curb misinformation, disinformation and purporting results to be official when Zec has not pronounced. That is reasonable and rational.
The problem becomes when we want to read this provision to mean or suggest that all forms of announcing results are illegal unless that is done by Zec. That is not correct. Section 66A requires that only the Zimbabwe Electoral Commission should announce official results. Is that not obvious? Who else would be in a position to announce official results if not Zec?
It is settled that electoral candidates and their supporters shall accept and respect the outcome of elections that have been proclaimed by the Electoral Management Body in accordance with the law of the land as final, and that results of elections and processes that led to such outcome shall be challenged only in accordance with the law of the land.
It is also settled that results announced by the Electoral Management Body having followed due process prescribed in the electoral law shall be the final result of poll, unless challenged and set aside by a competent court of law upon application by aggrieved candidates or political parties.
This is the position whether one looks at the Sadc Principles and Guidelines Governing Democratic Elections or the African Charter on Democracy, Elections and Governance.
As for misinformation? Well, everyone knows only Zec announces official results, and it is not the results of party A or party B or of Musa Kika that counts as the final official result.
If someone believes what Musa Kika announces over what Zec announces, it is not on Zec or the government. In the interest of transparency and checks and balances, parties are surely allowed to collate their own results and tabulate. Civil Society Organisations are allowed to do parallel voter tabulation. V11s are posted outside each polling station. The V11 form is an original
document carrying results from a polling station and is signed by agents of all contesting parties.
After the signing of the V11 form, information is then recorded on the V23 form, a collation of polling station results within a ward. Surely one can collate all the V11s outside polling stations and calculate ward results, or constituency results, and even national results when one has been able to collate and calculate the information on all V11s.
After all, the national results that Zec must announce, is a collation of the V11s, or so it should be. However, we know that one of the grey areas in Zimbabwe’s electoral management is what happens in the transmission of results from the polling station high up to the national command centre. That area remains a nebulous affair.
If one calculates correctly and then states what they have seen, publicly, that is him or her simply presenting a factual position.
Granted, one may make errors in calculating. But even Zec can make errors; some errors so elementary like the infamous case of Dexter Nduna, who spent a term in Parliament as Chegutu West legislator on a sit which was not his because Zec made an accounting mistake, which it admitted.
How bad is that?
It is checks and balances that unearth these kinds of mistakes. It is no cure that section 66A (4) states that the prohibition in subsection (2) shall not be construed as preventing any person from making any allegation regarding the result or conduct of an election in or for the purposes an election petition.
Credibility, freeness and fairness of an election is, fortunately or unfortunately, not solely the remit of the electoral court or any other court. This is notwithstanding that election results should be contested exclusively through legal channels.
World over, the media plays a critical role of vigilance during elections. They track processes and outcomes in real time, and immediately transmit such information.
That real time and immediate transmission of information serves a purpose: to not give time to those with nefarious intent to manipulate the results.
Recall the over four weeks of “meticulous verification” of results by Zec after the March 29 2008 polls? That is what happens when we gag CSOs, political parties, media and citizens from publicly communicating what they have seen as preliminary results.
In today’s elections, political parties, CSOs, media and citizens will have immediate access to individual results posted at polling stations. So preliminary results are not meant to announce or declare that any particular candidate or political party is the winner.
In various countries, including our neighbour South Africa, the media have set up platforms to compile preliminary results based on breakdowns provided by the electoral commission. The Mail and Guardian newspaper has done it before.
The second reason I say section 66A is bad law, is its capacity to be misconstrued, misinterpreted, or mischievously used to gag, silence, control narratives and limit free speech and free-flow of information.
This is not an unintended by-product; it appears very deliberate and nefarious.
Bear in mind this amendment was brought about in a context: the context is one of results transition and declaration that has been contested in Zimbabwe for a long time, as recently as 2018 before the Constitutional Court.
Obviously, this section will be misinterpreted for many reasons, and will be taken to mean you cannot announce any results at all under whatever circumstances.
That is incorrect. But the very fact alone that this clause is susceptible to misinterpretation, with dire consequences of prosecution and possible conviction, makes the provision
problematic. The fine line makes it constitutionally offensive. True to fears of misinterpretation and misinterpretation, there has been arrest and charging under section 66A In 2019, Zimbabwe’s former finance minister and senior opposition politician Tendai Biti was convicted and fined $200 for unlawfully and falsely announcing the results of 2018’s presidential election that was won by Emmerson Mnangagwa.
Biti was alleged to have announced on July 31 2018 that MDC- Alliance leader Nelson Chamisa had won the presidential election. Biti indicated that he would appeal the decision. There has always been a penchant to arrest people for “unofficial” announcement of results in Zimbabwe. Even before the Electoral Act was amended in 2014, Biti, then MDC-T secretary-general had been arrested in 2008 following the inconclusive 2008 elections, and charged with treason for, among others, declaring MDC-T leader Morgan Tsvangirai as duly elected.
The Constitution
But assume for once that section 66A means how the government may prefer it interpreted, and that section 66A is an actual limitation of freedom of speech and the free exchange of information.
Section 61 (“Freedom of expression and freedom of the media”) grants the right to every person to expression, which includes freedom to seek, receive and communicate ideas and other information.
Under section 61(5) freedom of expression and freedom of the media exclude a. incitement to violence; b. advocacy of hatred or hate speech; c. malicious injury to a person's reputation or dignity; or
- malicious or unwarranted breach of a person's right to privacy.
Announcement of preliminary poll results, without more, cannot fall foul to any of these.
Limitation then invokes section 86 of the Constitution which is the country’s regime under which rights can be limited in any situation other than a state of emergency.
Under section 86 of the Constitution, rights may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.
All relevant factors must be taken into account, which includes:
- The nature of the right or freedom concerned;
- The purpose of the limitation, in particular whether it is
necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
- The nature and extent of the limitation;
- The need to ensure that the enjoyment of rights and freedoms
by any person does not prejudice the rights and freedoms of others;
- The relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right
or freedom concerned than are necessary to achieve its purpose; and
- Wether there are any less restrictive means of achieving the
purpose of the limitation. It is difficult to see how gagging people from pronouncing on preliminary elections results meets this tall order. The Electoral Act and its provisions are subject to the Constitution.
What then is the purpose of posting V11s? What then is the watchdog role of the media? What then is parallel voter tabulation?
What then is the role of civil society? What then does vigilance mean for political parties?
The conclusion
I started with the question of mischief; let me end with it. The mischief being pursued by section 66A of the Electoral Act and the restrictive interpretation given to it, is to gag and control the election outcome narrative.
It is to suggest that no one else must speak of the results except the official body, which by now we know its independence is dented beyond redemption.
For now, our hopes are in courts that will give section 66A the correct kind of interpretation which is non-restrictive. But in the fullness of time, section 66A must be struck off the statute books.
The argument that having other voices other than Zec pronounce on preliminary results may cause unrest or misinformation is presumptuous.
It inherently assumes falsity and makes the non-sequitur argument that announcing results equals announcing violence. The price to pay on the other hand in having anything that looks like restriction of free speech, is sacrificing transparency, openness, and checks and balances, without which there are no credible, free and fair elections.
Musa Kika is a Zimbabwean human rights and constitutional lawyer.