THE President of the Movement for Democratic Change, Morgan Tsvangirai’s official announcement Tuesday has generated a lot of debate. Many readers have sought clarification on the way forward after the announcement was made.
An official letter by the MDC party was sent to Justice George Chiweshe, the High Court judge who chairs the Zimbabwe Electoral Commission (ZEC) effectively marking the end of Tsvangirai’s bid for the presidency — at least via the electoral process.
The ZEC’s previous position following yesterday's unofficial announcement by Tsvangirai, was that as it had received no formal notification of his withdrawal from the Presidential run-off election.
Justice Minister Patrick Chinamasa called the MDC leader’s announcement a ‘nullity’.
Effectively, the official position, from a constitutional (legal) point of view is that the election should go ahead, regardless of the MDC leader’s withdrawal. This is what the Electoral Law in Zimbabwe provides.
Under the provisions of the law, Tsvangirai should have given notice in writing addressed to the Chief Elections Officer, to withdraw his candidature at any time before twenty-one days from the day or first day, of the March 29 harmonised election. The latest date he could have withdrawn, therefore, was 8 March 2008.
Yesterday’s letter was late, in a legal sense, and the ZEC has a case in allowing the election to go ahead.
President Mugabe cannot be declared President for another term as section 110 (1) of the Electoral Act, which provides for the determination and declaration of result of election to office of President, only applies at the Nomination stage, and not after the electoral process has commenced.
It (section 110(1)) states: “Where only one candidate for President is validly nominated at the close of the day on which a nomination court sits in terms of section 38(1)(a), the Chief Elections Officer shall declare such candidate to be duly elected as President without the necessity of a poll.” But the poll has already occured, so this provision is inapplicable.
Once the electoral process is set in motion, especially after run-off, none of the candidates can withdraw — at law. A run-off is not a new election, but a continuation of the electoral process because none of the candidates managed to get the 50-plus-one percent required to claim outright victory.
Therefore, the election (in a legal sense) must go ahead.
ZEC does not have many options. They can either declare Tsvangirai’s withdrawal as invalid and notify the voters that the election will proceed or declare the remaining candidate (President Mugabe) duly nominated (a provision provided for only under section 107 of the Electoral Act.)
But section 107 refers only to the possibility of withdrawal from the first round by giving notice in writing to the Chief Elections Officer at least 21 days before polling day. This provision cannot be applied to a run-off election.
The only logical alternative, at law, would be to proceed with the run-off, even if one of the candidates has ‘withdrawn’.
‘Withdrawn’ is used reservedly here because it is not provided for after the election process commences.
Another possibility would be to amend the law and provide for the withdrawal.
Section 192 of the Electoral Act empowers ZEC - "notwithstanding any other provision of this Act" - to make a statutory instrument "to deal with any matter or situation connected with, arising out of or resulting from" an election.
ZEC has already made use of this section to extend the deadline for the holding of the run-off election. It may be, therefore, if formal notification of withdrawal is received, that ZEC will use this section to publish a statutory instrument allowing (1) the calling off of the poll and (2) the remaining candidate to be declared the winner.
That action would be controversial but would stand unless set aside by a court.
There is no provision in the Electoral Act for a run-off election to take place between the remaining candidate (President Mugabe) and the candidate with the next highest number of votes (Dr Simba Makoni).
Some political events occurring on the ground could alter these provisions, but the discretion to include (or exclude) them in the constitution currently rests with the ZEC.
Calls by other agents to postpone the election have no legal basis—unless a moral basis is justifiable and only ZEC (a Zimbabwean electoral body) can make that determination.
[Some information used in this article was supplied by Veritas]
ARTICLE ATTACHMENTS
READER OPINIONS
Chief Negomo • munhumutamurozvi@yahoo.com Subject: OMUHLE REVIST YO POSTULATIOS Fri, 27 Jun 2008 06:44:13 • Omuhle u seem to be reading between the lines.We have highlighted it now and then that section 192 allows ZEC to make amendments in the interest of prevailing conditions.Your argument is better answered by the action that ZEC took.Through a promulgation of a statutory in the govt gazette as required by law,they changed the 21days to almost 3months.Remember the law was made for people and not people for law,so on possibly realising your arguments,the 27th of Jun was announced as run-off date not run-away
So what you are saying do not hold waters,MT had amble time to withdraw not to abscond at the 11th hour.Please be reminded that in Kenya be it Kibaki or Odinga who was responsible for 300 death and not 86 before elections,not even one person in and outside Kenya called for the postponment of elections.Raila Odimga was appointed on the sidelines of massive violence that killed the lives of more than 2000people and his govt is legitimate.Why Zimbabweans you so dull to see,Why would elections have to be called off when allegedly 86people are killed.If you not aware,meanwhile we do not condone violence if presidents are to be legitimised by the degree of violence prior and after elections,Africa could not ve having head of states.Meles Bush's friend is fighting islamic terorism in east africa killed 1600people and jailed all opposition leaders for almost 2years without trial.
Upon released they all fled the country despite that ethiopia is the home of African Politics and Mr Meles is a legitimate leader.Open your eyes Omuhle,some quotas of the society claim to be holier than thou,they are hypocrites who do not even c the shadows of democracy yet they say all sorts of things
Omuhle • n/a Subject: n/a Thu, 26 Jun 2008 13:16:11 • Itayi, let's be objective here. Firstly, how can the government which has been disobeying the very same laws and constitutional Acts of parliament now want to abide by the relevant act? Wasn't it the same Mugabe and his generals who said they wouldn't acknowledge an MDC victory and were prepared to go back to Mozambique to fight?
Secondly,, and still on the point of ignoring their laws, the run-off should have been held within 21 days of the results of the first poll. They conviniently ignored this fact while they mobilised the people who have been beating and killing (who ever they is in this context is subjective so let's leave everyone to their own opinion) So if the run-off is to be held in 21days and the same laws says a candidate can only pull out by giving written notice 21days before the poll, how can you craft a law that states a candidate can only pull out the very same day he is informed he is in the run off? We all know what is going on but for you to then come out writing articles that you know very well have no legal basis and can be shot down by even a high school student who reads the relevant acts is stretching your patronage a bit too far. Print it or not....you've read it, though!
wadyegora • wadyehwata@yahoo.co.uk Subject: Constitution should protect the people first Wed, 25 Jun 2008 14:50:12 • The argument that most people are put forward that the pulling out by the MDC is unconstitutional does not hold water anyway. The Constitution is there to protect the citizens first before anything else, if the government which was elected into power by the people and governe on behalf of the people fails to protect them, then it is an unconstitutional government. So lets first deal with what was happening and still is happening to our people then we can talk about the Tsvangirai withdrawal
Chief Negomo • munhumutapamurozvi@yahoo.com Subject: DEMARK Wed, 25 Jun 2008 11:52:58 • The law provides that if the election do not yield an absolute winner,there shall be a run-off not run-away in 21 days.However it also makes a provision under section 192 for ZEC to ammend as they see it fit in the interest of the prevailing conditions.It is because of this that the 21days was not stuck to by ZEC.
Ma sanctions haasi muvhu as you said,but the ZIDERA bill prohibits some companies from the developing world to do business transactions with zim companies.It is because of this that some necessary raw materials and impliments for a succesfull harvest have been denied access into zim.Zim through sanctions that they decide to call targetedis under siege from the minds of the imperialist.All they say is travel ban and freezing of assets.Apart from these we have never heard of the real assets they froze.In some instances one would be tempted to think that travel ban should work in the favour of the govt.Its like the eligitimacy inversion of iraq under the name of fighting islamic terorism.The sanctions crippling zim do not need a telescope.
I do not condone violence as a means of achieving political leadership.We should be very careful on the perpetrators of this violence.Today you will possibly struggle to believe that the opposition led by Raila Odinga in Kenya was behind the masacre of innocent civilians.Close to 3000people before and after elections brought Odinga to be a prime minister and to a certain extend they say the situation in zim is an eye sore.Not to be outdone on that,he is advocating for amnesty of those behind such evil acts.
The widespread acts of violence will work against the mugabe regime and in favour of teh opposition.Violence can be by the opposition against the mugabe regime.Either winining or not wining,either in offence or in defence the opposition will simply gain a great deal of propaganda in the public domain
samas • n/a Subject: n/a Wed, 25 Jun 2008 10:50:32 • Why not publish the withdrawal letter and get the facts right than put only one-sided comments from Chinamasa only?
Tino Tonga • tonga@yahoo.co.uk Subject: Zanu Maivona Wed, 25 Jun 2008 10:41:16 • Zanu chiororo...truly, this is where boys are separated from men....the MDC boy is holed up in the Dutch Embassy en route to exile. Nyika ndeyedu vakomana...nyika ndeyedu!
Demark Muzarabani - DM • n/a Subject: Selective Application of the Law by Chinamasa Wed, 25 Jun 2008 08:20:51 • Okay, Chinamasa is good and asking ZEC to manipulate the law in favour of the R Mugabe. If you are sticking to the law R G Mugabe is not a President, all previous ministers lost their jobs 3 days before 29 March when the cabinet was dissolved. The country should be run by the Judiaciary. elections were supposed to be done 21 days after the results were announced, but ZEC spent more than 5 weeks vachingoverenga. So its convinient for you to twist the law in your favour. Itai Maelections mega. Isu hama dzapera kufa, zvipfuyo zvapera nema Militia vachingonti War Vet. Chitongaika, Chirimai handiti minda munayo - maSanctions ari muvhuwo here? Sei mava kutenga chibage? Isu tinorima kumamisha kwacho and provide the rural people with inputs and all are now denied to carry even a bucket of maize. Zvorevei?
N/A • N/A Subject: SHAME Wed, 25 Jun 2008 08:07:17 • I suppose beating people into submission is the only constitutional thing that Chinamasa was taught at law school?
Chief Negomo (aka oliver mtyambizi) • Munhumutapamurozvi@yahoo.com Subject: YES Wed, 25 Jun 2008 07:47:21 • Meanwhile other readers may be tempted to think that since the run-off according to section 110 (3) were no candidate receives an absolute majority,subsection 2 provides for the run-off to be held withing 21 days.So would argue how then would Tsvangirai have managed to withdraw within those 21 days,again this is clear.ZEC through section 192 notwithstanding any other provision of this Act - to make a statutory instrument to deal with any matter or situation connected with, arising out of or resulting from an election.ZEC amended the 21days by extending the period to the 27th of June which is a period outside 21days,So even if pple decide to interchangeably use these clauses i.e section 107, then Tsvangirai is legally bound to contest a run-off not run-away.So the election goes ahead.Ngoma-ndiyo ndiyo mutape,,Musangano will continue.
Also be aware that the president's appointed governors will automaticaly become senators that means the representation yemusangano wedu ZANUPF in the upper house is gona be dramiticaly increased to two thirds majority.The upper house controls or has got the power to overule the legislation passed by the lower house which is the parliament where some quotas of the society think MDC has two thirds majority (fantacy is it!).Musangano haufe and we are still in control
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