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Legal loose ends remain as Zimbabweans prepare to vote
Monsters and Critics
March 19, 2008

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Harare - One of Zimbabwe's leading human rights bodies is alarmed over what it says is a contradiction" in the country's electoral law which gives two directly opposing directions for declaring of the winner of presidential elections. Zimbabwe Lawyers for Human Rights (ZLHR) has written to Judge George Chiweshe, state-appointed chairman of the Zimbabwe Electoral Commission (ZEC), appealing for a resolution to the issue ahead of the March 29 elections, ZLHR projects officer Rangu Nyamurindira said.

A section in the main body of the Electoral Act stipulates that if none of the candidates gets more than 50 per cent of the vote, a second round has to be held within 21 days between the two candidates with the most votes.

But another provision in the law's schedule - an addendum to the act which is meant to provide explanatory detail to the main part of the law - says that the candidate who simply gets the most votes is to be declared the winner.

The chances of a run-off have assumed dramatic importance in the March 29 election.

The 84-year-old President Robert Mugabe is standing against former national labour head Morgan Tsvangirai of the opposition Movement for Democratic Change, along with former finance minister and ex-ruling party politburo member Simba Makoni and a lesser-known fourth candidate, Langton Towungana.

In the last presidential vote in 2002, Mugabe got 54 per cent of the vote, against Tsvangirai's 40 per cent. Analysts say that this time around, with Mugabe's support considerably withered by economic chaos and some defections within his party to Makoni, there is a strong likelihood he will get less than 50 per cent.

This would force him into a run-off against either Tsvangirai or Makoni, either of whom could then form some an alliance with the potential to collect more votes than Mugabe.

Nyamurindira said ZLHR told Chiweshe "that the discrepancy (in the Electoral Act on conditions for a runoff) might cause confusion" and needed clarification from the ZEC.

"Normally what happens is that the content of the act itself takes precedence over the schedule." Nyamurindira said there were court rulings that served as legal precedents in similar conflicts, where the provision in the main body of the act was ruled to be superior to that in the schedule.

Political commentators have warned that if Mugabe is faced with a second round, he may order that the simple majority provided for in the schedule be followed, irrespective of legal opinion.

"Mugabe has shown over and again that if the law is against him, he'll do what he needs to win," one analyst said.

Nyamurindira said ZLHR was also considering applying to the High Court for a declaration from a judge stating which provision in the Electoral Act should be followed, should Mugabe fail to get more than 50 per cent of the vote.

"That will at least make it difficult for him to wriggle out of a run-off," said another lawyer who asked not to be named.

No comment could be obtained from ZEC.

The affair is the latest in a series of challenges to electoral authorities' handling of the election, which will also decide the new 210-seat House of Assembly, 60 out of the 84 seat in the senate (Mugabe appoints the remaining 24) and 1,958 local councillors.

Trudy Stevenson, an MP of the smaller faction of the MDC, is demanding that authorities hand over a digitally amenable copy of the voters' roll of 5.5 million voters, which computer experts could analyse for evidence of any deliberate manipulation meant to favor Mugabe and his Zanu-PF.

The only analysis of the voters' roll briefly permitted in 2002 unearthed the names of thousands of deceased voters, people registered several times, others with fake identity numbers and more at addresses at small homes where scores of voters were listed.

Stevenson said she had discovered recently that the name of Desmond Lardner-Burke was on the voters' roll for her Harare constituency. He was the notorious former minister of law and order in the white minority Rhodesian government that came to an end in 1979 after a seven-year civil war for black majority rule, and had died several years ago in South Africa, she said.

"He would now be 102," she added.

Tendai Biti, secretary general of Tsvangirai's MDC has applied to the High Court for a hard copy of the electoral roll. His lawyers said they have been told by authorities they can have it "after the election."

Also before the courts, is an application to force the ZEC to increase the number of polling stations in urban areas. An election watchdog organization last week said there were so few provided for now, it would mean that polling stations would have to process a voter every 22 seconds in 12 hours on the single day's voting.

This was an "impossible" feat and would mean thousands of voters would be unable to cast their votes, the organization said.

Analysts say it is as deliberate ploy by Mugabe - first used in the 2002 elections - successfully - to cut the number of voters in urban areas where opposition against him is strongest.

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