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Vote recounts go ahead - Bill Watch 16/2008
Veritas
April 18, 2008

MDC took a court case to stop the vote recounts that the Zimbabwe Electoral Commission [ZEC] scheduled for the 19th April. High Court Judge Guvava dismissed the case on 18th April, which means that the recount will go ahead in terms of GN 58A/2008. The recount will start Saturday 19th April at 8am and will include a recount of all votes cast at all polling stations in those constituencies. The recounts will take place at counting centres listed in GN 58A [Note: in some cases these are the same as the constituency centres of the 29th March elections, but in some cases different counting centres are being used].

The recounts will involve votes cast in the House of Assembly, Senatorial and local authority elections, as well as votes cast in the Presidential Election [although the Presidential results have not yet been declared]. Candidates, their election agents and accredited observers are entitled to be present. The press has reported that about 50 SADC observers will be deployed.

Zimbabwe Lawyers For Human Rights have issued an opinion that the intention of the Zimbabwe Electoral Commission to continue with proposed recounts will be unlawful and in contempt of court.

Declaration of Winners after Recounts

ZEC in their press notifications of the recounts stated that after the recount the constituency elections officers will declare the new winners if any. MDC brought an urgent application to stop this declaration of new winners after the recount, on the basis that the existing declarations are final in terms of section 66 (4) of the Electoral Act, which states that the declaration of the constituency elections officer shall be final, subject only to a reversal on petition to the Electoral Court. Nothing in section 67A [the new section providing for recounts] expressly provides for changing the previously declared result of an election if a recount produces a different result from the original count.

The court case was dismissed on the grounds that “the application was not urgent”. This was not a dismissal on the merits of the applicant’s [MDC’s] argument. This means that if ZEC does go ahead and declare new winners and previously declared winners are unseated as a result, they will be able to challenge the new result in the Electoral Court.

Delay in Announcing Presidential Election Results

The MDC applied to the High Court for an order obliging ZEC to announce the result promptly. High Court Judge Uchena accepted jurisdiction in the case and agreed to treat the matter as urgent. Judgment was given on 14th April and MDC lost the case.

One of the main reasons that ZEC has given for their delay in announcing the Presidential winner was that they had ordered a recount in 23 constituencies and the results of these recounted Presidential votes would have to be included. That being so, it is difficult to see what reasons could be given for a further delay once the recounts have taken place.

Note: two unsuccessful aspirants to the Presidency, whose nomination papers were not accepted and whose cases were rejected by the Electoral Court, have now appealed to the Supreme Court claiming that their constitutional rights have been violated. There are fears that this appeal could be used to further delay announcement of Presidential election results.

MDC challenge 60 House of Assembly seats

The MDC has filed election petitions with the Electoral Court challenging the election results for 60 House of Assembly seats won by Zanu PF. In these challenges, the MDC accuses Zanu PF candidates and supporters of vote-buying, intimidating and interfering with presiding election officers and other election malpractices as well as there being an undercounting of its votes in the Parliamentary poll.

Section 182 of the Electoral Act states that an election petition must be decided by the Electoral Court within six months from the date it is filed. Section 172 states that the judgment of the Electoral Court is final in matters of fact but an appeal on questions of law can be made to the Supreme Court. Appeals must decided within six months after being lodged.

Safety of Stored Ballot Papers

The press reported an attempted bomb blast at the Gutu district administrator’s offices, where the ballot boxes for Gutu South, Central and North recounts were kept. This heightens concern about the safe custody of stored ballot papers and related documents.

There has also been concern expressed about whether there could be tampering with ballot papers in view of 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 for storage in places designated by the Chief Elections Officer. With so many election petitions before the Electoral Court even more ballot boxes will now have to be stored for another six months or more.

Ballot papers and related documents not subject to a election petition can be destroyed 14 days after the end of the “election period” [Electoral Act, section 70].

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