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 The latest date he could have withdrawn, therefore, was 8 March 2008.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.
Itayi Garande
itayi@talkzimbabwe.com
[Some information used in this article was supplied by Veritas]
