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Election irregularities - What can be done - Bill Watch 36/2013
Veritas
August 02, 2013

There have been many allegations of election irregularities, not only during the run-up to yesterday’s polling, but also while voting was going on and since polling stations closed. Prime Minister Tsvangirai has said the elections were invalidated by “monumental rigging”. Minister Chinamasa has invited Mr Tsvangirai to go to court if he is dissatisfied: “The Constitutional Court is there, the Electoral Court is there.” The head of the SADC Election Observation Mission, at the conclusion of the mission’s preliminary statement, released at midday today, thought it appropriate to urge that “whoever is aggrieved with the results should not resort to violence but should rather should go to the court of law, or engage in dialogue”. This bulletin outlines briefly what courses are open to aggrieved persons, both with ZEC and in the courts.

An important point is that any action has to be taken without delay, particularly over the Presidential election. The State, and the courts, are under a constitutional obligation to “ensure the timely resolution of electoral disputes” [new Constitution, section 155(2)(e)].

Seeking the nullification of the harmonised elections as a whole

The Electoral Act gives the Electoral Court a wide and exclusive jurisdiction to hear election petitions and to review decisions of the Zimbabwe Electoral Commission [ZEC] or anyone else made under the Electoral Act. Nevertheless, a court application seeking the nullification of the whole harmonised election process – Presidential, Parliamentary as well as at provincial council and local authority levels – would have to be made to the Constitutional Court. This follows from the fact that any such application would challenge the Presidential election process, and the fact that section 167 of the Constitution provides that only the Constitutional Court may hear and decide a dispute relating to election to the office of President. Moreover, such an application would be bound to rely on alleged breaches of the constitutional rights of citizens and the constitutional obligations of the State with regard to elections. The Constitutional Court would therefore be the right court for a full frontal attack on the entire harmonised elections process. But the seven-day deadline for challenging a Presidential election [new Constitution, section 93(1)] may pose great practical difficulties for any political party contemplating such an attack.

Challenging the presidential election

A Constitutional Court matter - Only the Constitutional Court has power to hear and decide a challenge to election of a President [new Constitution, section 167(2)(b)].

7-day deadline for lodging petition - A challenge to the validity of a Presidential election must be commenced by lodging a petition or application with the Constitutional Court within 7 days after the day on which the winner of the election is declared elected to the office of President by the chairperson of the Zimbabwe Electoral Commission [ZEC].

Deadline for Constitutional Court’s decision - The court must hear and decide any such petition or application within 14 days after the petition was lodged.

Effect of petition on swearing-in of President - In the absence of a petition challenging his or her election, the swearing-in of a President must take place on the ninth day after he or she is declared elected. If a challenge is lodged and the Constitutional Court declares a winner, that person must be sworn in as President within 48 hours of the court’s declaration. If the Constitutional Court, however, invalidates the election as a whole, a fresh election must be held within 60 days of the court’s decision.

Constitutional Court’s decision is final - [new Constitution, section 93(3)]

Remedies open to dissatisfied National Assembly and Council candidates

Challenges to individual National Assembly and council election results are matters for the Electoral Court alone. If an unsuccessful candidate believes that he or she should have won, or that the election in the constituency/ward was so flawed that it should be nullified and re-run, that candidate has a limited choice of remedies:

• a request to ZEC for a recount where the complaint is that there the votes were miscounted, or
• an “election petition” to the Electoral Court in the case of other complaints.

In both cases, there are strict time-limits to be observed and procedures to be followed, and failure to do so will usually result in rejection.

Request to ZEC for a recount

Provision for recounting votes counted at a particular polling station is made by section 67A of the Electoral Act. ZEC has power to order a recount either on its own initiative or on a request by a political party or candidate in the election concerned.

48-hour deadline for making request - A request for a recount must be lodged with ZEC, in writing, within 48 hours of the declaration of the successful candidate by the constituency elections officer or ward elections officer. The 48 hours runs from the time of the declaration to the same time two days later.

Contents of request - A request must state specifically the number of votes believed to have been miscounted and, if possible, how the miscount may have occurred, and state how the results of the election have been affected by the miscount.

When ZEC can order recount - ZEC can order a recount only if it considers that there are reasonable grounds for believing that votes were miscounted and that, if there was a miscount, it would have affected the election result. So it is no good for a candidate defeated by a 1000-vote margin to complain that 100 votes were missed out of the count or awarded to the wrong candidate.

Recount to be completed quickly - If a recount is ordered, candidates, agents and observers must be notified so that they can be present, and the recount must be completed within 5 days of the announcement of the last result in the Parliamentary or local authority election. Recount results must be announced within 24 hours.

Election petition to Electoral Court

Where the alleged problems with an election in a ward or constituency raise issues other than a “miscount” [e.g., where the complaint is violence or intimidation or bribery], the remedy for a dissatisfied candidate is to petition the Electoral Court by means of an “election petition”. The judges of the Electoral Court are High Court judges assigned by the Chief Justice. An Electoral Court judge may in a particular case ask for the assistance of two advisory assessors appointed by the Registrar of the court from a panel of at least ten persons compiled by the Chief Justice and the Judge President.

Who can lodge an election petition and on what grounds? - Any unsuccessful candidate for the National Assembly or council seat in question may lodge an election petition complaining of an “undue return or an undue election” of the successful candidate “by reason of want of qualification, disqualification, electoral malpractice, irregularity or any other cause whatsoever”. There is a definition of electoral malpractice in section 3 of the Electoral Act: “electoral malpractice” means an intimidatory practice, corrupt practice, illegal practice or other offence in terms of Part XX” of the Act. For example:

• Intimidatory practices include attempting to compel anyone to vote for a particular candidate or not to vote, or compelling or attempting to compel anyone to attend a political meeting, march, demonstration or other event; taking anyone’s identity documents to obstruct voting
• Corrupt practices include bribery, direct or indirect, personally or by any other person, to influence voting or not voting, or to get people to join processions or demonstrations before, during or after an election
• Illegal practices include canvassing for votes, uttering slogans, distributing party leaflets or pamphlets, using bands or music or loudspeaker vans within 300 metres of a polling station on polling day; obstructing voters from voting either at the polling station or on his or her way to or from the polling station; preventing the holding of lawful political meetings; destroying or defacing or removing political posters.

14-day deadline for lodging election petition - An election petition complying with the rules of court must be lodged within 14 days of the declaration of the contested result by the constituency elections officer or ward elections officer, as the case may be.

Service of notice on successful candidate - Written notice of a petition must be promptly served on the person whose election is challenged, either on him or her in person or by leaving it at his or her usual or last known dwelling or place of business. In previous elections many petitions were summarily dismissed for being served late or at the headquarters of the successful candidate’s political party.

Evidence needed - Before upholding an election petition, the Electoral Court will need to be convinced by evidence proving the allegations made by the petitioner.

Scope for setting aside result limited - The scope for complaint is wide, but the Electoral Act makes it clear that not every malpractice will result in an election result being changed:

• Under section 155, if the Electoral Court, having tried an election petition, finds that an electoral malpractice was committed by the successful candidate or with his or her knowledge and consent or approval, or by any of his agents or with the knowledge and consent and approval of any of his agents, and if in the opinion of the Electoral Court the effect of the malpractice was “such as to have materially affected the outcome” of the election – the election of the successful candidate is void and a fresh election must be held
• HOWEVER, under section 156, if the Electoral Court finds that malpractices were committed by the successful candidate’s agents, but the candidate has proved to the satisfaction of the court that:

a. no malpractices were committed by the candidate personally or by his or her chief election agent and that the malpractices were committed without the sanction or connivance of the candidate or his or chief election agent and
b. the candidate and his or her chief election agent took all reasonable precautions to prevent malpractices, and
c. the malpractices mentioned in the Electoral Court’s finding were “of a trivial, unimportant and limited character”.

• If any mistake was made or if there was non-compliance with the provisions of the Act, the Electoral Court may set the election aside “if and only if it appears to the Electoral Court that:

a. the election was not conducted in accordance with the principles laid down in this Act; and
b. such mistake or non-compliance did affect the result of the election”.

So, a mistake or non-compliance will not only have to qualify as a matter of principle, but will also have to be shown to have affected the result of the election. It would be no good therefore to be able to show that 100 voters were wrongly turned away in breach of the Act, when the successful candidate’s majority was so large that 100 more voters couldn’t possible have made any different to the outcome of the poll.

Decisions to be given promptly - Every election petition must be decided within 6 months of its presentation Electoral Act, section 182].

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