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The inconvenient truth: A complete guide to the delay in releasing the results of Zimbabwe's presidential poll
Derek Matyszak, Research and Advocacy Unit, Idasa
April 21, 2008

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Introduction

The media and several political analysts seem to be confused as to what precisely ought to have happened after people went to the polls in Zimbabwe on March 29th 2008 to vote in four "harmonised" elections - those for Local Government, the House of Assembly, the Senate and the president. This confusion could have been avoided by ignoring what Zanu PF and ZEC (Zimbabwe Electoral Commission) spin doctors said after the initial results began to reveal that the opposition had won the elections, and looking to see what the Electoral Act ("the Act") prescribed. For example, when the results were not announced within a few days of the election, Zanu PF spokesperson Bright Matonga informed the media that this was normal as ZEC had six days within which to announce the result. The international media immediately accepted this statement at face value and the six day deadline was repeated as a fact in numerous broadcasts. After the six days had come and gone without the announcement of the presidential result, this "time limit" was quietly forgotten. Presumably the international media was too embarrassed at having been so easily duped, to remind Matonga subsequently of his earlier statement. In fact, as will be seen below, the time for announcing the results is not six days or any explicitly prescribed number of days.

However, Section 110(3) of the Act does provide that if no candidate receives an absolute majority in the presidential election, a run off between the two frontrunners must be held "within 21 days of the previous election." It has been suggested that this means 21 days from the declaration of the result. This is not the case. If the legislature had meant 21 days from "the declaration of the result" it would have said so. Elsewhere, it managed to use the phrase within 48 hours of "the declaration of the result" for purposes of the president elect's assumption of office. And it could have used this phrase if this is what was intended for the commencement of the 21 day period. It did not. "Election" cannot refer to the day the president is declared elected as in the case of a run off this will not have happened. It can only mean polling day. ZEC itself, in an announcement from its public relations office, accepting the need for a run off if none of the candidates achieved an absolute majority, stated that the 21 days runs from polling day.

By delaying the announcement of the result of the presidential poll by over 21 days there cannot be compliance with the 21 day requirement, which will expire on the 19th April, 2008, the day upon which ZEC has declared it will conduct a recount. This difficulty is likely to be resolved either by ZEC ignoring its previous announcement and holding that the phrase "previous election" means the announcement of the result (contrary to the plain language of the Act) or through Mugabe controversially (and probably unconstitutionally) exercising his power under the Presidential Powers (Temporary Measures) Act which allows him to amend and enact legislation. He may thus purport to amend the 21 days to a period he finds amenable.

A second point of confusion that has arisen due to several articles in the media, is the legitimacy of the continued exercise of power by the President and his Ministers during the hiatus while the presidential results are announced. The President is reported to have "dissolved" his cabinet at the same time as parliament before the elections and it has thus been suggested that Ministers cannot continue to exercise their executive duties and privileges. This is not the case. In fact, a position as a member of Cabinet is different from a Ministerial appointment. In terms of section 31E(c) of the Constitution, Ministers remain in office until the assumption of office of the new President. It is also a misapprehension that a Minister must be a Member of Parliament. The requirement under section 31(E)(2) is that no person shall hold office as Vice-President, Minister or Deputy Minister for longer than three months unless he is a member of Parliament. However, after Parliament is dissolved, he may continue to hold such office without being a Member of Parliament until Parliament first meets after the dissolution. The President need not convene parliament for six months after its dissolution. The President remains in office until the assumption of office of the President Elect in terms of section 29 of the constitution. The current anomaly of continued governance by those who do not have a democratic mandate has been caused by the actions of ZEC and is itself a further factor which suggests the illegitimacy of ZEC's actions (discussed below) and that they violate the Electoral Act.

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