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Legal position on withdrawal of a candidate from presidential election runoff
Zimbabwe Lawyers for Human Rights (ZLHR)
June 26, 2008

Zimbabwe Lawyers for Human Rights (ZLHR) issues the following legal opinion in relation to the legality of the withdrawal of Mr. Morgan Tsvangirai from the presidential run-off election scheduled for 27 June 2008:

Procedure and Propriety: The Electoral Act

Section 107 of the Electoral Act [Chapter 2:13] provides that:

(1) A nominated candidate for election as President may, by notice in writing addressed to the Chief Elections Officer, withdraw his or her candidature at any time before twenty-one days from the day or first day, as the case may be, on which the poll in an election to the office of President is to be taken.

(2) On receipt of a notice of withdrawal in terms of subsection (1), the Chief Elections Officer shall cause the withdrawal to be published in the Gazette and in all newspapers of mass circulation in Zimbabwe.

This provision existed prior to the amendments made to the Electoral Act to provide for a presidential election run-off scenario. At the time of this amendment, it appears that the drafters overlooked the need to ensure that comprehensive provisions were included to deal with the procedure of the run-off including, inter alia, providing for the withdrawal of a candidate. Therefore section 107 referred to the withdrawal of a candidate from any single presidential election, but not for withdrawal of a candidate from a presidential run-off.

The accepted rules of statutory interpretation suggest that, where the law is silent, existing provisions could be applied to a new situation, unless this would result in an inconsistency or a legal absurdity.

If section 107 is applied to the presidential run-off, it would mean that a candidate would have to make a decision and formally withdraw from the run-off either on the same day as the election (polling day) or on the day of the announcement of the election result (depending which interpretation is taken as to the meaning of "election" in section 110 of the Electoral Act which provides for a run-off to be held within 21 days of an "election"). In the former instance, a candidate would have to withdraw before the election result is announced; in the latter, the candidate would have to withdraw immediately upon announcement of the result. This clearly could not have been the intention of the legislature as it is a legal and practical absurdity. As a result, section 107 cannot be considered to apply to the presidential election run-off.

Therefore, since there is no provision for withdrawal from a presidential run-off in the Electoral Act, one would have to look to the withdrawal procedures for a candidate in either parliamentary (section 49) or local government (section 126) elections: both of these provide that a candidate can withdraw "at any time before polling or the first polling day, as the case may be". In this situation, the candidate merely has to provide written notification to the constituency elections officer.

In this more logical and reasonable eventuality, Mr. Tsvangirai, by submitting his written notification of withdrawal three days before polling day, can be said to have substantively complied with the requirements of the electoral law and the Zimbabwe Electoral Commission (ZEC) is required to take measures to publicize this withdrawal in terms of the law.

There is no provision, and it would indeed be an absurdity, to allow ZEC to continue with an election where there is only one remaining candidate.

Is Mr. Tsvangirai "Bound" to Continue in the Run-Off Election?

Legal arguments have been raised that, by contesting the presidential election on 29 March 2008, which could arise in a run-off, a candidate has no option but to contest, and in fact has no power to stop the process continuing and reaching its logical conclusion. ZLHR is not convinced by this legal argument.

It is our submission that the wording of section 110(4), which provides that in a "second election" the two candidates who received the highest and next highest number of valid votes cast shall be "eligible" to contest, is a clear indication that the provision to contest is not mandatory.

Further, and in any event, to make participation mandatory would be a violation of the fundamental rights of an individual to participate freely and effectively in government, which logically and necessarily includes the fundamental right not to participate where such participation is neither free nor effective. Mr. Tsvangirai therefore can be argued not to be involuntarily bound to participate in the run-off because he contested the initial presidential election.

Substantive Human Rights Principles

The fundamental right of a person to participate freely and effectively in government is protected under the Universal Declaration of Human Rights (Article 21), as well as the African Charter on Human and Peoples' Rights (Article 13) and the International Covenant on Civil and Political Rights (Article 25), both instruments which Zimbabwe has ratified and is therefore obliged to protect, promote, respect and fulfill.

Where an individual is of the considered belief that s/he is unable to freely and effectively participate directly in the government of her/his country, and is unable to be elected in a genuine election which guarantees the free expression of the will of the electors and s/he is then forced to proceed regardless, this is a violation by the State of the abovementioned fundamental rights of the individual. Such forced action is not lawful and it cannot be condoned.
The guarantee of the fundamental right to free participation in democratic elections is protected under section 3 of the Electoral Act, and this forms the core of the principles governing democratic elections. They also reaffirm and domesticate key provisions of the SADC Principles and Guidelines Governing Democratic Elections, and other regional and electoral standards.

Section 3 states that:

Subject to the Constitution and this Act, every election shall be conducted in way that is consistent with the following principles?

(a) the authority to govern derives from the will of the people demonstrated through elections that are conducted efficiently, freely, fairly, transparently and properly on the basis of universal and equal suffrage exercised through a secret ballot; and

(b) every citizen has the right?

(i) to participate in government directly or through freely chosen representatives, and is entitled, without distinction on the ground of race, ethnicity, gender, language, political or religious belief, education, physical appearance or disability or economic or social condition, to stand for office and cast a vote freely;
(ii) to join or participate in the activities of and to recruit members of a political party of his or her choice;
(iii) to participate in peaceful political activity intended to influence the composition and policies of Government;
(iv) to participate, through civic organisations, in peaceful activities to influence and challenge the policies of Government;

(c) every political party has the right—

(i) to operate freely within the law;
(ii) to put up or sponsor one or more candidates in every election;
(iii) to campaign freely within the law;
(iv) to have reasonable access to the media.

The pertinent issue relates to whether the proceedings which are set to occur on 27 June 2008 can be considered to be a "democratic election".

In order to establish this, a candidate or any other person must rely on section 3 and prove that there has been substantial compliance with its provisions. Where such compliance does not exist, then there cannot be a "democratic election" and in such an instance there is no need or obligation for a candidate to formally withdraw from the process, let alone within a certain time period.

If there is disagreement between the candidates, or between a candidate and the election management body, on compliance with the core principles, then the matter should be referred to a court of law for determination. The election management body cannot simply state that the conditions exist and proceed unilaterally when clear facts supporting a disparate view have been put to it.

In terms of the principle of separation of powers, it is the judicial authorities which are mandated to decide, on the facts placed before them that conditions do or do not exist for a democratic election. Anything different is tantamount to an ouster of the court's jurisdiction, which is unconstitutional and is a breach of the African Charter on Human and Peoples' Rights, to which Zimbabwe is a State Party. A party is therefore obliged to approach the courts to have the matter determined. Failure to do so, and proceeding with an election, therefore could be argued to result in ZEC acting outside the boundaries of the law.

In line with the abovementioned legal arguments, it is submitted that the withdrawal of Mr. Tsvangirai from the run-off election is in compliance with the national laws and regional and international human rights standards relating to elections, and that ZEC should take immediate measures as provided in the Electoral Act to notify the public that an election can no longer be held on 27 June 2008.

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