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Presidential elections electoral inconsistency: run-off or no run-off?
Zimbabwe Lawyers for Human Rights (ZLHR)
March 12, 2008

Zimbabwe Lawyers for Human Rights (ZLHR) is aware of the current debate relating to the potential for a run-off in the presidential election. There is currently an inconsistency in our legal system as regards the manner in which any run-off will be held. This inconsistency lies between section 110(3) of the Electoral Act and section 3(1) the Second Schedule to the Electoral Act - a schedule issued under section 110 of the principal Act.

Section 110(3) of the Electoral Act states:-
Where two or more candidates for President are nominated, and after a poll taken in terms of subsection (2) 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. [emphasis is ours]

Whereas section 3(1) of the Second Schedule to the Electoral Act states:-
Subject to subparagraph (2), after the number of votes received by each candidate as shown in each constituency return has been added together in terms of subparagraph (3) of paragraph 2, the Chief Elections Officer shall forthwith declare the candidate who has received—

1. where there are two candidates, the greater number of vote
2. where there are more than two candidates, the greatest number of votes;
   to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration. [emphasis is ours]

As it is, section 110(3) requires that there be a run-off should no one candidate get a 'majority of the votes cast' whereas the schedule states that the person with the highest number of votes (notwithstanding that they are not a majority of the votes cast) should be declared the President of Zimbabwe.

Clearly, 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. As such, we have felt it necessary to bring this to the attention of the Zimbabwe Electoral Commission (ZEC) and ask the question as to how it will handle this discrepancy. We have also felt it necessary to clarify ZEC's administrative preparedness to handle the possibility of a run-off.

It is trite that the electoral system should be certain and its integrity should be unimpeachable. As such, the uncertainty which this inconsistency creates is unacceptable and requires immediate clarification.

Clarity of the law is integral in keeping the public informed about the electoral process and ensuring that elections are conducted efficiently, freely, fairly, transparently and in accordance with the law. People's choices for public office should be backed by full knowledge of all relevant factors for a democracy to function properly.

ZLHR has made an effort to solicit the views of ZEC as to how it intends/ has intended to interpret this provision, but in spite of the stated and restated urgency of the matter, has to date received no response. Neither has there been any form of public education on the electoral process in respect of the carrying out of the presidential (and other) elections and any run-off, a matter raised by ZLHR in its correspondence. It may therefore become necessary to institute legal action on an urgent basis to obtain clarity in this regard.

We shall keep you updated as developments arise.

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