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This article participates on the following special index pages:
2008 harmonised elections - Index of articles
over presidential run-offs
March 16, 2008
of a winner in next week's Presidential election has been
thrown into uncertainty amid revelations that Section 110 of the
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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