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Recounts, petitions, possble run-off - Bill Watch 14/2008
Veritas
April 04, 2008

Update on elections

Council: these results were officially declared by ZEC officials at ward level. These will not be announced from the National Command Centre, but will be published in the press as required by the Electoral Act.

House of Assembly: these results, which were officially declared by the Constituency Election Officers, have now been announced by ZEC at the National Command Centre: - MDC [Tsvangirai] 99, Zanu PF 97, MDC [Mutambara] 10 and Independent 1, accounting for all 207 contested seats. There are still 3 seats that will have to be filled by by-election [the polls having been called off because candidates died before polling day]. The new House of Assembly will comprise 210 elected seats [no appointed seats].

Senate: these results were officially declared by the Constituency Elections Officers – but only 44 have been announced from the ZEC National Command Centre. There is nothing in the electoral law to account for this delay in announcing the Senate Results [nor the previous delay in announcing the House of Assembly results].

Out of 93 Senate seats:

• 60 are elected [6 Senators per province]
• 18 are chiefs [see below]
• 10 are Provincial Governors appointed by the new President
• 5 are appointed by the new President

Chiefs: 16 Chiefs were elected by the eight non-metropolitan provinces on Monday 31st March. Together with the President and Deputy President of the Council of Chiefs [who are ex officio Senators] they make the number of Chiefs in the Senate 18.

Recounts

Section 67A of the Electoral Act permits any political party or candidate who contested the election to ask ZEC for a recount in one or more polling stations. The request must be made within 48 hours of the declaration of the winning candidate at ward or constituency level [or, in the case of the Presidential election, at the ZEC National Command Centre]. ZEC can also order a recount on its own initiative [no time limit stated]. In both cases ZEC will decide when and where the recount will take place and the procedure to be adopted. Accredited observers, candidates and their representatives are entitled to be present.

Storage of ballot papers

Section 70 of the Electoral Act. After votes have been counted at polling stations, ballot papers and related documents are placed in sealed packets and delivered to the constituency elections officer. The constituency elections officer stores these in places designated by the Chief Elections Officer. Unless an election petition is lodged [see below], the ballot papers and related documents will be destroyed 14 days after the end of the “election period” [see under election petitions for definition of “election period”]. If an election petition is lodged, the documents must be retained for 6 months, after which they will be destroyed unless the Electoral Court orders otherwise.

Presidential election results

ZEC has categorically stated that these will not be announced until all the 60 elected Senate seat results have been announced. Nothing in the Electoral law dictates this sequence. But at this stage ZEC attributes the delay to the verification of the figures returned by the constituencies and having them agreed by the relevant parties.

Deadline for Announcement of Results: There is no specific legal deadline, but lawyers have opined that ZEC has a duty to act with reasonable speed. The MDC have applied to the High Court for an order obliging ZEC to announce the result promptly.

In the Event of a Run Off

The Electoral Act requires a run-off to be held within 21 days “after the previous election”. Legal opinion is divided on whether this means 21 days after polling day or 21 days after ZEC’s announcement of the result. The ZEC position given by the PRO department is that it dates from polling day.

It has been suggested that the 21 day deadline may be extended by regulations made under the Presidential Powers (Temporary Measures) Act. The Act is wide enough to permit this.

Election petitions

An unsuccessful candidate wishing to challenge an election result has the right to lodge an election petition with the Electoral Court. An election petition must be lodged promptly:

- within 30 days of the end of the election period in the case of the Presidential election [Ref: Electoral Act, section 111(1)]

- within 14 days of the end of the election period in the case of a Senate, House of Assembly or Council election [Ref: Electoral Act, sections 168(2) and 133]

For the Presidential election the “election period” ends with the declaration of the winning candidate. For the House of Assembly and Senate elections, it ends with the official declaration of the last constituency result [i.e. the last declaration at constituency level by the constituency elections officer on the spot, not the last ZEC Command Centre announcement]. For Council elections itends with the official declaration of the last ward result for the Council concerned. [Ref: Electoral Act, section 4, definition of “election period”.]

The Electoral court has no discretion to accept a late petition.

An election petition must be dealt with and decided promptly. The Electoral Court must hand down its decision within 6 months of a petition being lodged [section 182 of the Electoral Act]. Its decision on a question of fact is final, i.e., there can be no appeal. Its decision on a question of law may, however, be taken on appeal to the Supreme Court, and the Supreme Court must hand down its decision within 6 months [Ref: Electoral Act, section 173].

Issues of government pending results

President: the incumbent President remains President until the winner of the Presidential election assumes office [i.e. takes the oaths of loyalty and of office - which must happen on the day he is declared the winner of the poll or within 48 hours thereafter].

Vice Presidents and Ministers: these are still in office, even those who have not won seats as MPs or Senators. They will go out of office if a new President assumes office.

Parliament: the old Parliament was dissolved on the 28th March [the day before polling day]. The new Parliament will meet on a day to be fixed by the next President by proclamation in the Government Gazette, which must be within 180 days after the 28th March.

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