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Presidential results and run off rules - Bill Watch 18/2008
Veritas
May 02, 2008

Presidential Election Result

The Presidential election results as declared by the Chief Elections Officer at the Harare International Conference Centre yesterday afternoon [2nd May] were:

The declaration also stated that as no candidate had secured a majority of the total votes cast there will be a run-off election on a date still to be announced by ZEC. The two candidates eligible for the run-off election are Morgan Tsvangirai and Robert Mugabe. See further below.

Candidates in run-off

The only candidates eligible for the run-off are the recipients of the highest and next highest number of votes in the election of 29th March, i.e., Morgan Tsvangirai and Robert Mugabe. Replacement of either candidate by another person is not permitted by the Electoral Act.

Withdrawal of candidate?

Section 107 of the Electoral Act permits withdrawal of a candidate up to 21 days before polling day. The consequence of withdrawal is the declaration of the remaining candidate as unopposed winner of the election [section 49 of the Electoral Act as read with section 112].

Run-off Election Deadline - 21 Days After Election

Section 110(3) of the Electoral Act states that a run-off election must be held within 21 days after “the election”. If that means within 21 days after the original polling day, the 21-day deadline has long since passed. If it means within 21 days after yesterday’s declaration [presumably the official interpretation], the run-off should be held not later than Friday 21st May. [Note: An election held after the 21-day deadline will be in breach of the Electoral Act, but lateness in such a context is a defect that cannot practically be corrected. A declaration that a late election is void or invalid would imply that the Presidential election can never be completed – an impossible conclusion.]

Run-Off Election Procedure

Section 110(3) of the Electoral Act requires the run-off election to be held "in accordance with this Act". It follows that, as in the election of the 29th March:

• voters will cast their votes at polling stations in the wards in which they are registered
• votes will be counted at polling stations immediately after the closing of the poll
• the results of polling station counts will be posted outside polling stations for public information [using form V.11]
• polling station results on form V.11 will be will be collated at constituency level on form V.23 for onward transmission to the Chief Elections Officer at the ZEC National Collation Centre for the "verification and collation" exercise and the eventual announcement of the result by the Chief Elections Officer

Any change to that procedure would require an amendment of the Electoral Act. At this stage any amendment would have to be under the Presidential Powers (Temporary Measures) Act, and the use of that Act would be highly controversial unless the provisions were fully agreed by both candidates.

Note: Section 110(4) of the Electoral Act, in the highly unlikely event of a draw [statistically this would be almost impossible], provides for the winner to be decided by Parliament sitting as an electoral college. But this would present a problem, because the existence of the new Parliament is deemed to commence when the winner of the Presidential election is sworn in [see further below].

Voters rolls for run-off election

The run-off election is an extension/continuation of the election of the 29th March. That seems to rule out any re-opening of voters rolls for further registration of voters for the purposes of the run-off.

As for a fresh inspection of voters rolls, there is nothing in the law to require ZEC to repeat its former special arrangements for inspection of voters rolls. In any event it is unlikely that there will be time for such an exercise before the run-off. Any voters roll may, however, be inspected at the ZEC office and/or constituency registrar's office where it is kept [section 21 of Electoral Act as amended by Electoral Laws Amendment Act].

Update on House of Assembly, Senate and Council Elections

Parliament [House of Assembly and Senate]

There have been no changes to the winners of House of Assembly and Senate seats as a result of the recount in the 23 constituencies.

The first meeting of the new Parliament will have to await the declaration of the winner of the Presidential run-off election. In law the new Parliament's existence only commences when the winner of the Presidential election is sworn in [section 63(4) of the Constitution as amended by Constitution Amendment No. 18].

There has been speculation about possible floor-crossing in the new Parliament. Floor-crossing by a House of Assembly MP entails the loss of his or seat if the party he or she deserts so chooses [section 41(1)(e) of the Constitution]. The loss of a seat would necessitate a by-election. This provision does not apply to the 66 Senators who are directly elected by voters [probably an oversight in Constitution Amendment No. 17, which provided for the introduction of the Senate in 2005].

Council Election Results

There have been no changes to the winners of Council elections as a result of the recount in the 23 constituencies.

None of the council election results have yet been published in the press [as required by the Electoral Act], apparently because the final figures from the wards in the 23 recounted constituencies were being awaited. ZEC PRO has now said that the results will be published "any day".

Under the law newly elected councils must meet "as soon as practicable" after the declaration of the election results. Legally, those declarations were all made at ward level within a day or two of polling on the 29th March. It is believed that council authorities have nevertheless delayed action pending ZEC's "confirmation" of the declared results by publication in the press.

Reminder: the Local Government Laws Amendment Act abolished commissioners, executive mayors and executive committees. Section 32 of the Act, however, stated that executive mayors and commissioners in office on 24th January would continue in office for the time being, but only until 48 hours after the declaration of the election results [not the ZEC publication in the press]. So any commissioners, executive mayors and executive committees fell away some four weeks ago. The first order of business for new councils will be the election of mayors for cities and municipalities, and chairpersons for town councils and rural district councils.

Election Related Court Cases

By-Elections

There are three by-elections still to take place for the House of Assembly, for Pelandaba-Mpopoma, Gwanda South and Redcliff constituencies. Voting was stopped in these constituencies because of deaths of candidates [section 50 of the Electoral Act requires cessation of polling in the event of a candidate dying, to afford contesting parties an opportunity to choose replacement candidates]. By-election dates have not been set. One of the candidates has made a High Court application for an order compelling the setting of a date for the by-election in his constituency.

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. The hearing of these petitions has not yet started.

Constitutional Application to the Supreme Court

Two unsuccessful aspirants to the Presidency, whose nomination papers were not accepted and whose appeals were rejected by the Electoral Court, have now appealed to the Supreme Court claiming that their constitutional rights have been violated. There has been no judgment yet.

Election-Related Concerns

It is still being asserted in the press that a serious criminal offence under the Electoral Law was committed by parties or monitoring organisations who gave their version of vote counts or projections for the election results, including the Presidential election, ahead of the official announcements by the ZEC Chief Elections Officer. There is no such offence in the Constitution or the Electoral Act, including the Codes of Conduct for parties and candidates and for observers. The only provision on this subject is in the Electoral Regulations [Statutory Instrument 21/2005 as updated] section 9 as follows:

“No person to notify results before polling-station return has been affixed outside the polling station.

9. No person in attendance at the counting of the votes shall, before the result of the poll is recorded on the polling-station return and such polling-station return has been affixed outside the polling station by the presiding officer in accordance with section 64(2) of the Act, communicate to any person outside the place where the votes are being counted any information relating to the results of the count or to the number of votes given to any particular candidate at that polling station.”

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