Back to Index
This article participates on the following special index pages:
2008 harmonised elections - Index of articles
MDC pull out from presidential run-off election - Index of articles
position on withdrawal of a candidate from presidential election
Zimbabwe Lawyers for Human Rights (ZLHR)
June 26, 2008
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:
and Propriety: The
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.
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.
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.
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
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.
Tsvangirai "Bound" to Continue in the Run-Off Election?
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.
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.
Human Rights Principles
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
Principles and Guidelines Governing Democratic Elections, and
other regional and electoral standards.
Section 3 states
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
citizen has the right?
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;
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.
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.
Visit the ZLHR
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.