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2008 harmonised elections - Index of articles
results and run off rules - Bill Watch 18/2008
May 02, 2008
election results as declared by the Chief Elections Officer at the
Harare International Conference Centre yesterday afternoon [2nd
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.
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
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].
Election Deadline - 21 Days After Election
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.]
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
- votes will
be counted at polling stations immediately after the closing of
- the results
of polling station counts will be posted outside polling stations
for public information [using form V.11]
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.
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].
rolls for run-off election
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].
on House of Assembly, Senate and Council Elections
[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].
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
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.
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.
Related Court Cases
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.
challenge 60 House of Assembly seats
The MDC has
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.
Application to the Supreme Court
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.
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:
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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