Legal update

THE following legal briefing is published by The Zimbabwe Guardian to keep readers up to date with developments during the election period.

No new Bills or Acts were gazetted this week

Statutory instrument on cash withdrawals [see end of update]

Update on Presidential Run-Off Election

General Notice 71/2008 - notifies the results of the Presidential election and the need for a run-off election, as already announced by the Chief Elections Officer on 2nd May.

Participation in Run-off

President Mugabe's [Zanu PF] candidature was confirmed soon after the results were declared on 2nd May. Morgan Tsvangirai [MDC-T] has announced today that he will participate, but has set conditions which have to be met including that the run-off should be by 23rd May. [see note at end of Bulletin for other conditions].

Run-Off Date—Extension of 21-day deadline?

ZEC has not announced the run-off polling date.

Section 110(3) of the Electoral Act states that the run-off election must be held within 21 days 'after the election'. There is a difference of legal opinion whether this means 21 days after polling [29th March] or 21 days after declaration of results [2nd May]. ZEC has taken it to be the latter, which would give a deadline of Friday 23rd May.

But... ZEC has the power to extend the 21-day period in terms of section 192(4) and (5) of the Electoral Act. These provisions empower ZEC to make "such statutory instruments as it considers necessary or desirable to ensure that an election is properly and efficiently conducted and to deal with any matter or situation connected with, arising out of or resulting from the election...... [including] altering any period specified in this Act within which anything connected with, arising out of or resulting from any election must be done'.

Any such statutory instrument must be approved by the Minister of Justice, Legal and Parliamentary Affairs and be gazetted. Section 192 does not in as many words set any limits to ZEC's power to extend the 21-day period, but on general principle ZEC should use its power reasonably.

Effect of 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].

Effect of Death of Candidate

Where a candidate dies before polling day, the election is called off and the Presidential electoral process has to be gone through again, commencing with a new nomination court for nomination of candidates. Where a candidate dies after voting has begun, the election continues and if the surviving candidate receives the majority of the votes cast, he will be declared duly elected as President; if, however, the deceased candidate receives most votes, the election must be re-run, commencing with new nominations. [Electoral Act, section 108]. Where a successful candidate dies after being sworn in as President, the resulting vacancy must be filled by the members of the Senate and the House of Assembly sitting as an electoral college. [Constitution, section 28(3) (b)]

Voting in Run-Off Election

Voters Rolls for Run-Off Election

The run-off election is an extension/continuation of the election of the 29th March. This rules out voting by any voter registered after the 14th February, when the rolls were closed for the purposes of the election. 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. 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].

Ward-Based Voting Procedure

The Chief Elections Officer has confirmed that the procedure for voting in the run-off election will be the same as for the election on 29th March. That is in line with section 110(3) of the Electoral Act, which requires the run-off election to be held 'in accordance with this Act'. It follows that, as in the election of the 29th March, only registered voters will be able to vote and they will have to vote in the ward in which they are registered. Votes will be counted at polling stations immediately after the closing of the poll and results of polling station counts will be posted outside polling stations for public information [using form V.11]. Polling station results will be collated at constituency level on form V.23 for onward transmission to the Chief Elections Officer at the ZEC National Collation Centre.

Update on House of Assembly, Senate and Council Elections

House of Assembly By-Elections

There has been no announcement of dates for by-elections to fill the vacancies in the three House of Assembly seats [Pelandaba-Mpopoma, Gwanda South and Redcliff] which were not voted for in the 29th March election following the deaths of candidates. The by-elections will be called by Presidential proclamation published in the Government Gazette.

Publication of Council Election Results

The Chief Elections Officer has published results in the press for Bulawayo [Bulawayo City Council]; Harare [Harare City Council, Chitungwiza Town Council, Epworth Local Board]; Manicaland [Mutare City Council, Chipinge and Rusape Town Councils, Buhera, Chimanimani, Chipinge, Makoni, Mutare, Mutasa and Nyanga Rural District Councils]; and Mashonaland Central [Bindura Municipal Council, Bindura, Chaminuka, Guruve, Mazowe, Mbire, Muzarabani, Pfura and Rushinga Rural District Councils]. ZEC has said that the results for councils in the remaining provinces will be published shortly.

Election Petitions

The outcome of these petitions could drastically alter the proportion of seats and accordingly the balance of power between the two main parties, in particular in the House of Assembly. At present the figures are:

House of Assembly: combined MDC 109; Zanu PF 97; Independent 1; seats waiting by-elections 3 [total 210].

Senate: combined MDC 30; ZANU PF 30; Chiefs 18; and the 10 seats for Provincial Governors and 5 other seats to be appointed by the new President [total 93].

The latest figure for election petitions lodged with the Electoral Court is 105 [53 by ZANU-PF candidates, 52 by MDC candidates]. Seats in both Houses of Parliament are involved—the majority in the House of Assembly and a few in the Senate. We will supply further details about the petitions as soon as they become available. All 22 High Court judges have now been appointed as judges of the Electoral Court in view of the large number of petitions lodged. Section 182 of the Electoral Act states that an election petition must be decided by the Electoral Court within 6 months from the date it is lodged. All petitions had to be lodged within 14 days of declaration of results [either original or recount results]. So judgments on the petitions will have to be handed down at the latest during October and early November, depending on when individual petitions were lodged. On Friday 9th May Judge President Rita Makarau and Judges Guvava and Uchena met lawyers representing all petitioners to discuss procedural matters. The Judge President stressed that the 6-month deadline would be observed. Normal court procedures would have to be modified to ensure completion of all cases within the 6-month period. A Practice Direction setting out the special procedures is expected to be issued shortly. [We will offer it as soon as it becomes available.]

Appeals from Electoral Court decisions

A judgment of the Electoral Court is final on matters of fact but an appeal on questions of law can be taken to the Supreme Court. Appeals must decided within six months after being lodged.

Escalation of Post-Election Violence

Much of this seems to be based on reprisals for voting patterns. The environment of fear resulting from the violence will effect voting in the run-off. The head of a South African contingent of regional election observers, Kingsley Mamabolo, said last Wednesday. 'A presidential election run-off in Zimbabwe cannot take place given the current levels of violence....We have seen it, there are people in hospital who said they have been tortured, you have seen pictures, you have seen pictures of houses that have been destroyed and so on.' Pretoria - News24. Also of major concern for a run-off election is the displacement of persons taking place, not only of those being displaced for political affiliations but also the numbers of farm workers being displaced. There are no facilities at the moment for internally displaced persons to vote.

MDC Conditions for Run-Off

· Run-off to take place within two weeks, not later than 23rd May

· Cessation of violence

· Unfettered access for international observers

· SADC peacekeeping force on the ground

· Re-constitution of ZEC,

· Free press—local and international

The MDC hopes all these to be achieved before 23rd May, 2008.

Update on Statutory Instruments

SI 73/2008 - confirms the latest increased limits under the Bank Use Promotion and Suppression of Money-Laundering Act for (1) daily cash withdrawals from financial institutions [$5 billion for both individuals and companies] and (2) cash holdings by individuals and other non-traders [$5 billion] [Electronic version available]. Gazetted 9th May. Note: This SI replaces SI 62/2008 of 11th April in which the limits were set at $1 billion.

The Zimbabwe Guardian / Veritas