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Legal position on challenging election results/outcome
Zimbabwe Lawyers for Human Rights (ZLHR)
April 04, 2008

(a) Parliamentary (House of Assembly & Senatorial) Petitions

• Section 167 states that "A petition complaining of an undue return or an undue election of a member of Parliament by reason of want of qualification, disqualification, electoral malpractice, irregularity or any other cause whatsoever may be presented to the Electoral Court by any candidate at such election.
• Section 168 (2) states that "an election petition shall be presented within fourteen days after the end of the period to which the election to which it relates"

The election period is defined in the Electoral Act as the period between the calling of the election and the declaration of the result of the poll for the last constituency.

NOTE that: In terms of the Electoral Act section 66 (1) winning candidates for the House of Assembly and the Senate are collated and declared at the House of Assembly collation centers (constituency centers) and the Senatorial collation centers respectively by constituency election officers. These must subsequently be published but do not, by law, have to be publicly announced as is currently being done by ZEC.

Once declared to be the winner by the constituency elections officer at the constituency centers then such candidate shall be "duly elected as a member of Parliament with effect from the day of such declaration." [Section 66 (1)]

It is advised that immediately after a declaration by the constituency elections officer the fourteen days begin to take effect and any petitions and action against the result must be taken within such fourteen day period to avoid being out of time.

- Petition against parliamentary results - a petition made within fourteen days must automatically secure all election related documents and ballot papers for the next six months. Where the maximum six months is coming to an end a candidate must ensure that a court order is obtained directing the Chief Elections Officer to continue to keep the ballot papers until the conclusion of the petition by the Electoral Court.

(b) Presidential Election Petitions

• Section 110 (6) of the Electoral Act provides that the result of an election to the office of President shall be declared by the Chief Elections Officer who shall publish such result in the Gazette and in such other manner as he or she considers necessary to give sufficient publicity to the result.
• Section 111 (1) provides that an election petition against the result of an election to the office of President must be presented to the Electoral Court within thirty days of the declaration of the result of the election.

Note that: while a petition against a presidential election can be filed within 30 days, there is a danger that a chief elections officer may proceed to destroy documents and ballot papers concerning such an election within 14 days of the declaration of results. It is thus important that a candidate who wishes to challenge the result cause to be secured the ballot papers and documents within fourteen days of the declaration of the result.

Where a candidate, after declaration of results at constituency centres (parliamentary elections) and by the Chief Elections Officer (Presidential Elections) intends to challenge such outcome of the elections, it is imperative that they secure the ballot papers, as this forms crucial evidence in the petition.

Note that Section 70 (3) allows a Chief Elections Officer where no petition has been lodged in relation to results within a constituency to cause to be destroyed all the documents (including ballot papers) relating to that constituency not earlier than the fourteenth day after the end of the election period (which is when a declaration of a winner has been made). Where however a petition has been lodged, within fourteen (14) days of the declaration of results and a winner, then the Chief Elections officer must retain FOR SIX MONTHS all the documents relating to that constituency. After the six months he may destroy the documents/ballot papers, unless otherwise directed by an order of the Electoral Court.

- Petitions against presidential results - While a petition to the Electoral Court may be made within thirty days, there is a danger that all documents relating to that constituency, which documents, due to the vagueness of section 70 (3) may include those specifically relating to the presidential election, may be destroyed by the Chief Elections Officer after fourteen days of the declaration of a winner within a constituency. Thus a court application can be made to the Electoral Court securing all documents within constituencies that are concerned with the presidential elections as a candidate prepares his petition.

All petitioners are strongly encouraged to cite the constituency officer, senatorial constituency and Chief Elections Officer in their petition, the presumption being that such a course of action automatically makes the relevant official aware that the relevant election material is in issue before the courts and thus prevent tampering with the election material.

Section 182 of the Electoral Act provides that an election petition must be determined within six months from the date of its presentation.

• A decision of the Electoral Court on a question of fact shall be final.
• A decision of the Electoral Court on a question of law may be the subject of an appeal to the Supreme Court.

An appeal to the Supreme Court must be determined within six months from the date of the lodging of the appeal.

Thus the longest period within which a petition must be heard and finalised (where there is an appeal to the Supreme Court) is one year.

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