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Doubts over presidential run-offs
The Standard (Zimbabwe)
March 16, 2008

http://www.zwnews.com/issuefull.cfm?ArticleID=18392

The determination of a winner in next week's Presidential election has been thrown into uncertainty amid revelations that Section 110 of the Electoral Act contradicts the Second Schedule of the same legislation which outlines how the winner will be determined. This, lawyers said, had the potential to cause confusion as it remained unclear how the Zimbabwe Electoral Commission (ZEC) would read the provisions. Section 110 (3) of the Electoral Act says in the event that none of the candidates gets a majority, there has to be a run-off within 21 days. "Where . . . no candidate receives a majority of the total number of valid votes cast, a second election shall be held within twenty-one days after the previous election in accordance with this Act." But unknown to many political activists, the Second Schedule to the Electoral Act states otherwise. It says that "the Chief Elections Officer shall forthwith declare the candidate who has received . . . the greatest number of votes; to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration". The Zimbabwe Lawyers for Human Rights (ZLHR) warned "this inconsistency has the potential to cause serious problems in the event that none of the Presidential candidates obtain a majority of the votes cast". The ZLHR said there was a need for an "immediate clarification" of the position regarding a run-off. It sent questions to the Zimbabwe Electoral Commission (ZEC) which were not responded to, at the time of going to press.

Justice and Legal Affairs Minister Patrick Chinamasa could not clarify the inconsistencies. He said he was addressing a campaign rally in the rural areas. Repeated attempts to get clarification from the ZEC were in vain. ZEC spokesperson, Shupikai Mashereni, referred questions to the commission's legal team, who in turn referred the matter back to Mashereni. But David Coltart, the Legal Affairs Secretary in the MDC faction led by Arthur Mutambara, said if no candidate obtained a majority, there would be a run-off as "the requirement for a run-off in section 110 (3) prevails over the more general provision in the Schedule". "The usual rule is that where there is a conflict between a section of an Act and that one of the provisions in a schedule, the enactment in this section prevails over that in the schedule," Coltart said. A Harare lawyer said he suspected "a drafting error in the wording" of the Second Schedule. "Regrettably paragraph 3 creates confusion because it is somewhat inconsistent with section 110 of the Act," said the lawyer. "It also makes no provision for the run-off election as envisaged in Section 100 in the event of no candidate receiving a majority of the total valid votes cast."

Meanwhile, an MDC MP has filed an urgent applicant in the High Court seeking to compel the Zimbabwe Electoral Commission and the Registrar General to provide her with a readable and proper electronic copy of the Mount Pleasant voters' roll. Trudy Stevenson made the application as the Zimbabwe Electoral Commission (ZEC) also refused to avail hard copies of the voters' roll to the Morgan Tsvangirai led faction of the MDC. In her application, Stevenson observed the bits and pieces of the electronic voters' roll she obtained would not help her as a candidate to prepare for the elections. She also pointed out the roll was seriously flawed, and contained people who should not be on the list of voters. "I have noticed that Desmond William Lardner- Burke is listed as a voter . . . Desmond William Lardner Burke was minister of Law and Order under Ian Smith and I cannot believe that he is still alive and residing in Mount Pleasant." Born in 1908, Lardner-Burke died in SA years ago. Tsvangirai's MDC said it has received only 50 compact disks containing the electronic voters' rolls and repeated requests to ZEC to get more "have been met by various excuses, the main one being that their machines have broken down."

Apart from that, said the MDC, the format in which the voters' rolls are saved makes them "materially deficient" in various respects. "Even this is difficult in respect of some of the compact disks supplied to us because the JPEG image has a watermark obliterating some of the names. We are unable to analyse and interrogate the voters' rolls because it is an electronic picture and not electronic data." In a letter dated 11 March 2008 to ZEC chairman George Chiweshe, MDC Tsvangirai secretary general Tendai Biti said it was illegal for the commission to deny the party the voters' roll. He said the Electoral Act clearly states that the commission shall provide any person "without delay" who requests it, with a copy of the voters' roll. Biti said in the past two weeks, MDC national director of elections Dennis Murira had been trying to get copies of the voters' roll and was informed by a ZEC official that copies would only be available after elections "since production centre is busy". Biti also sought assurance from ZEC that the ink to be used by in the election could not be washed away after voting, making it possible for voters to vote more than once. ZEC chairman George Chiweshe could not be reached for comment as he was said to be out of town on business.

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