[18th April 2008]


Please see end of this Bill Watch for updates on Bills, Acts and Statutory Instruments.

Vote Recounts Go Ahead
MDC took a court case to stop the vote recounts that the Zimbabwe Electoral Commission [ZEC] scheduled for the 19th April. High Court Judge Guvava dismissed the case on 18th April, which means that the recount will go ahead in terms of GN 58A/2008. [Electronic version of GN 58A available on request.] The recount will start Saturday 19th April at 8am and will include a recount of all votes cast at all polling stations in those constituencies. [For list of the 23 constituencies in which votes are being recounted see Bill Watch 15/08 of 12th April.] The recounts will take place at counting centres listed in GN 58A [note: in some cases these are the same as the constituency centres of the 29th March elections, but in some cases different counting centres are being used].
The recounts will involve votes cast in the House of Assembly, Senatorial and local authority elections, as well as votes cast in the Presidential Election [although the Presidential results have not yet been declared]. Candidates, their election agents and accredited observers are entitled to be present. The press has reported that about 50 SADC observers will be deployed. Zimbabwe Lawyers For Human Rights have issued an opinion that the intention of the Zimbabwe Electoral Commission to continue with proposed recounts will be unlawful and in contempt of court. [Electronic version of statement available on request or direct from ZLHR [tinahse@zlhr.org.zw]

Declaration of Winners after Recounts
ZEC in their press notifications of the recounts stated that after the recount the constituency elections officers will declare the new winners if any. MDC brought an urgent application to stop this declaration of new winners after the recount, on the basis that the existing declarations are final in terms of section 66 (4) of the Electoral Act, which states that the declaration of the constituency elections officer shall be final, subject only to a reversal on petition to the Electoral Court. Nothing in section 67A [the new section providing for recounts] expressly provides for changing the previously declared result of an election if a recount produces a different result from the original count. The court case was dismissed on the grounds that 'the application was not urgent'. This was not a dismissal on the merits of the applicant’s [MDC’s] argument. This means that if ZEC does go ahead and declare new winners and previously declared winners are unseated as a result, they will be able to challenge the new result in the Electoral Court.

Delay in Announcing Presidential Election Results
The MDC applied to the High Court for an order obliging ZEC to announce the result promptly. High Court Judge Uchena accepted jurisdiction in the case and agreed to treat the matter as urgent. Judgment was given on 14th April and MDC lost the case. [Electronic version of Judge Uchena’s judgment available on request] One of the main reasons that ZEC has given for their delay in announcing the Presidential winner was that they had ordered a recount in 23 constituencies and the results of these recounted Presidential votes would have to be included. That being so, it is difficult to see what reasons could be given for a further delay once the recounts have taken place.

Note: Two unsuccessful aspirants to the Presidency, whose nomination papers were not accepted and whose cases were rejected by the Electoral Court, have now appealed to the Supreme Court claiming that their constitutional rights have been violated. There are fears that this appeal could be used to further delay announcement of Presidential election results.

SADC and UN Statements on Zimbabwe’s Delay in Announcing Presidential Election Results
Extract from SADC Communiqué from the 2008 First Extra-Ordinary SADC Summit of Heads of State and Government, 3rd April 2008, Lusaka, Zambia:

14. The Summit urged the electoral authorities in Zimbabwe that verification and release of results are expeditiously done in accordance with the due process of law. Summit also urged all the parties in the electoral process in Zimbabwe to accept the results when they are announced. By due process of law, Summit understood to mean that:
(a) the verification and counting must be done in the presence of candidates and/or their agents, if they so wish, who must all sign the authenticity of such verification and counting.
(b) SADC offers to send its Election Observer Mission who would be present throughout such verification and counting.

15. If such verification and counting makes it necessary for the parties to go for a run-off, the Government is urged to ensure that the run-off elections are held in a secure environment. SADC offers to send an Election Observer Mission

16. The Summit appeals to the Zimbabwe Electoral Commission to ensure strict compliance with the rule of law and SADC Principles and Guidelines governing democratic elections.' UN Secretary General Ban Ki-moon’s Statement on Zimbabwe at the UN Security Council Meeting: 'I am deeply concerned at the uncertainty created by the prolonged non-release of the election results in Zimbabwe. Absent a transparent solution to this impasse, the situation could deteriorate further with serious implications for the people of Zimbabwe. The Zimbabwean authorities and the countries of the region have insisted that these matters are for the region to resolve but the international community continues to watch and wait for decisive action. The credibility of the democratic process in Africa could be at stake here. If there is a second round of elections, they must be conducted in a fair and transparent manner, with international observers. I urge the leaders of the Southern African Development Community to continue their efforts. The United Nations stands ready to provide assistance in this regard.'

MDC challenge 60 House of Assembly seats
The MDC has filed election petitions with the Electoral Court challenging the election results for 60 House of Assembly seats won by Zanu PF. In these challenges, the MDC accuses Zanu PF candidates and supporters of vote-buying, intimidating and interfering with presiding election officers and other election malpractices as well as there being an undercounting of its votes in the Parliamentary poll.

Section 182 of the Electoral Act states that an election petition must be decided by the Electoral Court within six months from the date it is filed. Section 172 states that the judgment of the Electoral Court is final in matters of fact but an appeal on questions of law can be made to the Supreme Court. Appeals must decided within six months after being lodged.

Safety of Stored Ballot Papers
The press reported an attempted bomb blast at the Gutu district administrator’s offices, where the ballot boxes for Gutu South, Central and North recounts were kept. This heightens concern about the safe custody of stored ballot papers and related documents. There has also been concern expressed about whether there could be tampering with ballot papers in view of the lack of transparency about storage of ballot papers. Section 70 of the Electoral Act states that once votes have been counted at polling stations, ballot papers and related documents are placed in sealed packets and delivered to the constituency elections officer for storage in places designated by the Chief Elections Officer. With so many election petitions before the Electoral Court even more ballot boxes will now have to be stored for another six months or more. Ballot papers and related documents not subject to a election petition can be destroyed 14 days after the end of the 'election period' [Electoral Act, section 70].

Escalation of Violence
The long wait for the election results, the recounts and the possibility of a Presidential run-off election have resulted in an alarming escalation of post-election violence. Reports from Zimbabwe Peace Project, Zimbabwe Association of Doctors for Human Rights and Zimbabwe Lawyers for Human Rights on this violence: [Available in electronic version direct from ZPP [zpp@africaonline.co.zw], ZADHR [zadhr@mweb.co.zw] and ZLHR [tinashe@zlhr.org.zw]]

Update on Bills and Acts
No new Bill or Acts were gazetted this week, but the Indigenisation and Economic Empowerment Act came into operation on the 17th April [See Bill Watch Special of 17th April].

Update on Statutory Instruments
SIs 65 and 66/2008 enact new schedules of payments for the purposes of the Parks and Wild Life Act and the Trapping of Animals (Control) Act. The schedules specify the amounts that persons convicted of illegal hunting or trapping of animals must be ordered to pay the landowner concerned for the animals hunted or trapped. The payments are over and above any criminal penalty [imprisonment and/or fine] imposed by the court. SI 67/2008 confirms an already-implemented increase in State pensions, backdated to 1st January 2008.

Information supplied by Veritas