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The inconvenient truth (Part II): A complete guide to the recount of votes in Zimbabwe's "harmonised" elections
Derek Matyszak, Research and Advocacy Unit, Idasa
April 29, 2008

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The Inconvenient Truth analysed the various explanations given by the Zimbabwe Electoral Commission (ZEC) for releasing the results of the presidential poll from the harmonised elections that took place in Zimbabwe on the 29th March, 2009. Votes were cast in four elections, Presidential, the House of Assembly, the Senate and Local Government. While the results for the parliamentary elections were released (eventually) by ZEC at a national level, at the time of writing the official results for the presidential election remain unknown to the electorate.

The last of various explanations for this delay was advanced by ZEC's lawyer during the course of an urgent court application, made by the Movement for Democratic Change (MDC) on the 6th April 2008 to compel the release of the result. It had not, at that time, seven days after the poll, been advanced by ZEC itself. This explanation, which now appears to have been implicitly adopted by ZEC, is that ZEC is acting in terms of section 67A(4) (see annexure A) of the Electoral Act ("the Act"). The subsection provides that ZEC may "on its own initiative" order a recount of votes in any election. ZEC's contention thus appears to be that it cannot release the presidential result while the recount is in progress. However, nothing in the Act stipulates that ZEC may withhold the result of the presidential poll while a recount is underway. On the contrary, the Act specifically requires the result to be announced "forthwith" after the verification and collation process. ZEC has sought to evade this obvious requirement by obfuscating the verification process and implying that the recount is part of the verification procedure. It is not. The meaning of "verification" is set out in the Act (section 65[2]) and refers simply to presidential candidates checking integrity of the constituency returns sent to the Chief Election Officer, that is, that the numbers have not been altered en route and that the 210 returns to be added up are the same documents signed by their representatives at constituency level. It does not refer to a forensic audit of the count, as ZEC officials have sought to imply. These concerns were addressed in Part I of An Inconvenient Truth. This article focuses on the recount itself, though some of the issues in Part I will need to be repeated. Some of the conclusions reached earlier are also strengthened during the course of the analysis.

Subsection 67A(4), the implied basis for the recount, needs to be examined closely in order to ascertain the legitimacy of ZEC's actions. Before ZEC may order a recount on its own initiative in terms of this subsection, seven conditions must be met:

1. ZEC must consider that there are reasonable grounds for believing that a miscount has occurred at polling station level [section 67A(4) and 67A(5)].
2. ZEC must state the specific polling stations where a miscount of this nature is believed to have occurred and in which election the miscount has occurred - Local Government, Parliamentary or Presidential [section 67A(5)(a)]
3. ZEC must have reasonable grounds for believing that the miscount is significant enough to have affected the result of the election [section 67A(4)].
4. ZEC must obtain an order from the Electoral Court in order to open the ballot boxes to conduct the recount [section 70(4)].
5. ZEC's purpose in conducting the recount must be with a view to instituting a prosecution in relation to an election or election return [section 70(4)].
6. ZEC must also specify the time, date and place for the recount and the procedure to be adopted [section 67A(5)(b)].
7. ZEC must undertake and complete the recount within 14 days of the declaration of the result in all constituencies where election petitions have not been filed [section 70(3)(a)].

Each and every one of these seven grounds must exist before any recount ordered by ZEC may be considered lawful.

In what follows, an analysis is made as to whether ZEC has complied with these requirements in relation to the on-going recount.

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