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Election update - Vote recount and presidential election results - Bill Watch 15/2008
Veritas
April 12, 2008

General Notice on Vote Recount

GN 58A/2008 dated Saturday 12th April : “It is hereby notified, in terms of section 67A of the Electoral Act that the Commission [ZEC] being of the opinion that reasonable grounds exist for believing that a miscount of votes occurred that would have affected the result of the elections concerned, has ordered that a recount in respect of the Presidential, House of Assembly, Senatorial and local authority elections be undertaken at the constituency centres, dates and times indicated in the Schedule in respect of the votes polled at all polling stations that were counted at the Scheduled constituency centres.” Signed by Justice Chiweshe chairperson of ZEC

Note the date given for all the recounts is 19th April at 8 am. For the list of the 23 constituencies see below. The Schedule gives the locations of the counting centres.

Update on Elections

Vote recounts

Section 67A of the Electoral Act permits any political party or candidate who contested the election to ask ZEC for a recount of votes in one or more polling stations in a ward or constituency. The request must be made within 48 hours of the declaration of the winning candidate.

Zanu PF made a request for a recount in 22 constituencies. ZEC ordered recounting of the votes cast for these constituencies for all four elections - local authority, House of Assembly, Senatorial and Presidential and these were due to start in several constituencies on the 12th April. MDC went to court to stop these on the evening of the 11th April on the grounds of lack of notice, lack of transparency and that a political party should not request a premature recount of Presidential votes. There was an order by consent stopping these recounts. [Note: a different point in the MDC application - that there should not be any of these recounts at all - will be heard on Tuesday 15th by Judge Guvava.]

But, ZEC can also order a recount on its own initiative [no time limit stated] independent of parties requests [and this was not disputed in the order by consent referred to above]. According to GN 58A and ZEC advertisements ZEC is preparing for a ZEC-initiated recount on the 19th April. Accredited observers, candidates and their representatives are entitled to be present.

Breakdown of the 23 constituencies by province: Manicaland 3 [Buhera South, Chimanimani West, Mutare West]; Mashonaland East 1 [Goromonzi East]; Mashonaland West 1 [Zvimba North]; Masvingo 9 [Bikita South, Bikita West, Zaka West, Chiredzi North, Masvingo Central, Masvingo West, Gutu Central, Gutu North, Gutu South]; Matabeleland North 1 [Lupane East]; Matabeleland South 1 [Bulilima East]; Midlands 7 [Zhombe, Silobela, Gokwe-Kabuyuni, Mberengwa East, Mberengwa West, Mberengwa North, Mberengwa South].

Note: Nothing in section 67A expressly provides for changing the previously declared result of an election if a recount produces a different result from the original count. Some lawyers have interpreted this as meaning that only the Electoral Court has jurisdiction to unseat a previously declared winner on the strength of a recount. But, going by the ZEC recount advertisements, ZEC envisage that if a recount produces a different winner in a council, House of Assembly or Senate poll, that winner will be declared duly elected on the spot, thereby unseating the previously declared winner. In other words, ZEC regard the declaration of a new winner in those circumstances as necessarily implied part of the recount.

Presidential election results

ZEC has still not declared the results of the Presidential election. The MDC have applied to the High Court for an order obliging ZEC to announce the result promptly.

During the week High Court judge Uchena:

• accepted jurisdiction in the case
• agreed to treat the matter as urgent, and
• proceeded to hear argument on the merits

Judgment is expected to be delivered on Monday 14th April.

Storage of Ballot Papers

There has been concern expressed about the lack of transparency about storage of ballot papers. Section 70 of the Electoral Act states that once 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.

Destruction of ballot papers

The Electoral Act [section 70] states that unless an election petition [a court application before the Electoral Court] is lodged, the ballot papers and related documents can be destroyed 14 days after the end of the “election period”. The Act says nothing about a ZEC recount order freezing the provision for the destruction of ballot papers and related documents. But as there can be no recount without ballot papers the ZEC recount order necessarily requires the preservation of ballot papers, at least of the constituencies involved.

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