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A fudge recipe: Determining and declaring the result of Zimbabwe’s 2013 presidential election
Research and Advocacy Unit
July 26, 2013

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After the poll in the elections of the 29th March, 2008, the populace eagerly awaited the result of the crucial presidential election. Although the Electoral Act then did not stipulate any period within which the results had to be released, the Act did require that each step of the tabulation process was to be completed expeditiously, deploying phrases and words such as “immediately thereafter”, “without delay” and “forthwith”. Advancing various excuses believed by few, these provisions were ignored by the Zimbabwe Electoral Commission, which took a full 33 days to release the result. Many believed that the intervening period was used to doctor the results, to bring the total votes of MDC-T President, Morgan Tsvangirai, below the 50% plus one vote threshold required to avoid a run-off poll. Ignoring the time limits set in the Electoral Act (21 days), ZEC set the poll for a further two months hence. The 28th June 2008 poll date allowed sufficient time for the electorate to be cowed in a wave of endemic violence of such brutality that Tsvangirai was compelled to withdraw from the poll. There was no possibility of the result being credible, and it was not.

With the wisdom gleaned from this experience, there was an attempt to reconsider, streamline, refine and tighten the law relating to the tabulation and declaration of results. However, the precipitous proclamation of the election dates left the attempts half baked. The amendments to the Electoral Act and Electoral Regulations were drawn in haste without proper consideration and care. As a result, the very area of the legislation it was sought to improve, in fact became further confused due to the incomplete drafting process. The legislation thus is ill-conceived in part and contains numerous omissions and contradictions pertaining to process of tabulation and the declaration of the result of the all important presidential election. In the category of the ill-conceived falls an amendment to the Electoral Act which requires that the result of the presidential election must be released within five days. The provision is meaningless, if not worse than useless - though it may provide a false sense of security for some. If ZEC claims to encounter logistical difficulties and the result is not announced within five days as required, recourse to the courts will inevitably simply result in a ruling that the Commission declare the results “as soon as possible” – which is what the law more sensibly required before the amendment anyway. And ZEC itself may apply to the Electoral Court for the five day period to be extended, a request which is unlikely to be denied unless it can be clearly shown that the delay is mala fides.

The validity of these amendments to electoral law is open to question. Section 157(1) of the Constitution provides that: An Act of Parliament must provide for the conduct of elections and referendums to which this Constitution applies

The purported amendments to the Electoral Regulations were made by the ZEC, claiming the power under Section 192 of the Electoral Act to do so, and not by an Act of Parliament. Similarly, the purported amendments to the Electoral Act were made, not by an Act of Parliament, but by Presidential Regulations. Furthermore, the Regulations state that they are made under the Presidential Powers (Temporary Measures) Act.

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