In this second part of the BSR Elections Series, we look mainly at the presidential election and related provisions. In the next part, we will focus on local authority elections.
Rules of the game
First, however, it is important to highlight one of the most important consequences of the proclamation of the election date. We saw that it activated the closure of the voters roll two days afterwards and also set the nomination day. Another important consequence is that the rules of the elections cannot now be changed. This is because section 157(5) of the Constitution states as follows:
“After an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election.”
The meaning of this is that there will be no more new rules or changes to the existing Electoral Law or regulations. ZANU PF is not going to surprise its rivals with new rules, even using the Presidential Powers (Temporary Measures) Act, as doing so would be unconstitutional. Section 157(5) was crafted specifically to prevent abuses of the past where the president, who was also a candidate could simply change rules of the game on the eve of the election. This was usually done using the Presidential Powers Act. The President cannot do that now that he has proclaimed the election date.
However, this also means the issue of electoral reforms is now on pause in so far as it concerns changes to the electoral laws. Such changes will have no effect for the 30 July election. The issue of electoral reforms remains important, however, in relation to the implementation of existing rules. There is much that can be done to ensure reforms in the conduct of key actors in the election, as we will see in the discussion on the role of state media in this BSR.
In Part 1 we pointed out that results are supposed to be posted outside the polling station and that any member of the public can record or take note of the results. We also pointed out that this can be a useful facility for contestants to gather data on the election results throughout the ward, constituency and country. However, it is important to note that only ZEC, through its electoral officers has the authority to announce election results. Section 66A prohibits unofficial or false declaration of results. Therefore, any person who “purports to announce the result of an election as the true or official results or purports to declare any candidate to have been duly elected” ahead of an official announcement by an electoral officer would have committed a criminal offence. Nevertheless, this does not prevent a person from reporting the number of votes received by a candidate or political party in an election, where that report is based on polling-station returns and constituency returns from the election concerned. This means it is perfectly legal for people to report information on election results based on information that is posted outside polling stations or constituency command centres.
What happens where there is a draw?
The candidate with the highest number of votes is declared the winner of an election. However, in the unlikely event of a draw, the law provides that the winner shall be determined by the drawing of lots. The drawing of lots is done by the Chief Elections Officer in the presence of a judge of the Electoral Court and the candidates or their agents. This is purely down to luck. It has never happened in the history of Zimbabwean elections.
Where a party or candidate is dissatisfied, he may apply for a vote recount. This must be done in writing within 48 hours of the declaration of the result. The Commission may also order a recount on its own initiative if it considers there was a miscount which had a material effect on the outcome. Where a recount is ordered it must be completed within 5 days of the final result in the elections and it must also be conducted in the presence of all those entitled to be present when votes are counted. This includes all observers, candidates and political parties. Also notably, the decision by ZEC on whether or not to order a recount and the extent of such a recount if it does order one, is final and shall not be subject to appeal.
In certain limited circumstances, voters are allowed to vote by post. Only a specified category of persons is allowed to use postal voting: Persons who will be unable to vote at a polling station because they will be -
This includes police officers and polling officers who will be on duty on polling day. It also includes diplomatic staff at foreign embassies. It does not cover Zimbabweans in the Diaspora.
Any person who wishes to use postal votes must make a written application to ZEC using the prescribed forms. For those outside the country and in government service, this is handled through the embassy. For members of a disciplined force the application for postal voting is made only through their commanding officers.
Postal voting will be particularly important in this election after provisions for Special Voting which were used in the 2013 elections were repealed in 2014. Special Voting allowed members of the security services and election officials to vote two weeks in advance of the main election. This Special Voting procedure was marred with challenges as ZEC was underprepared for it. Some members of the security services ended up voting twice after ZEC opened the door ostensibly to permit those who had been excluded during special voting. This means members of the security services will be using postal voting on the grounds that they will be on duty on polling day. It means political parties need to take extra caution towards postal voting, making sure it is not abused.
Monitoring postal ballots
There is potential for abuse of the postal ballot. Therefore, it is important to note and make use of the monitoring mechanisms that exist within the law. The Chief Elections Officer is required to keep a record of all the applications for postal voting and to permit them to be inspected by members of the public free of charge. Secondly, the Chief Elections Officer must keep a record of all postal ballots issued and permit the list to be inspected by members of the public also without charge. Third, every name of a person to whom postal voting has been allowed should be crossed off the voters roll supplied to each polling station. The voters roll must indicate the letters “P.V.” to signify that they have been granted postal voting.
Fourth, all postal votes that are received by the Chief Elections Officer must remain unopened until the counting stage at the relevant polling station. They will only be opened in the presence of all parties that are legally required to be present at the counting of votes. Agents are allowed to object to postal votes if there are any irregularities. For example, it must be clear that the person using the postal vote is permitted to do so within that constituency and at that polling station. If parties inspect the postal votes applications and the postal votes that are received, they should be able to have a list of postal votes that are permitted at each polling station. This will prevent abuse, such as excessive numbers of postal votes at any one polling station which may affect the result.
These are things that political parties, agents and observers can monitor in order to minimise the abuse of the facility of postal voting. Parties in particular should assign a person or persons dedicated to monitoring the conduct of postal voting.
Employers’ duty on polling day
Section 38(2) of the Electoral Law makes polling day a public holiday. This is designed to permit people to have enough time to vote without the constraints of work. However, the law recognises that there may be situations where eligible voters may be required to work. Section 92 therefore requires employers to allow such employees leave of absence from their work to give them an opportunity to vote in the election. The leave of absence may be for the whole morning or afternoon or the whole day. Employers are not allowed to deduct any wages by reason of this leave of absence and those who breach this rule will be guilty of an offence.
Nomination of presidential candidate
A presidential candidate needs 10 nominators from each of the 10 provinces across Zimbabwe and must pay a $1,000 fee to the nomination court. Each of the nominators must be registered on the voters rolls of constituencies in each province.
A candidate may specify a distinctive symbol with which they wish to be identified on the ballot paper. If the candidate is standing for a political party, they must state this fact and specify the name of the political party and an abbreviation of the name which will appear on the ballot paper. The law requires the nomination paper to be countersigned by an office-bearer of the political party who has the authority to certify that the candidate is to stand for that political party.
This immediately raises a question where there is a dispute between two political parties in relation to a name, abbreviation or symbol. Many in the opposition are concerned by the continuing dispute between Nelson Chamisa and Thokozani Khupe, both of whom claim the leadership of the MDC-T and the legal wrangle remains unresolved. If this is not settled before nomination day, and it’s highly unlikely to be resolved, there may be problems as each will claim the name, symbol and abbreviation of the MDC-T. Even if the High Court makes a decision in the next two weeks, the losing party will probably appeal, thereby suspending the judgment ensuring the continuation of the dispute well beyond nomination day.
One solution is for the parties to come to an agreement to each use a different name for purposes of the election, without prejudice to their rights in the legal dispute. Another, should that agreement fail, is for one of the parties to simply adopt a new name and make sure the electorate is well-informed so that they can make a proper choice. Whichever way, a solution must be found and very quickly in order to avoid confusion.
Withdrawal of a candidate
A nominated candidate is entitled to withdraw from the race but withdrawal is not permitted in the three weeks before polling day. In this case where polling day is 30 July 2018, last possible day for withdrawal is 9 July 2018. Once a notice of withdrawal is received ZEC ensures a notice is published in the Government Gazette and in all national newspapers.
Death of a candidate
A presidential candidate may die after nomination or during polling or before he or she has been duly elected president. If this happens, the law requires a new nomination process to be conducted.
Winner by absolute majority
Where there are two candidates, the winner is the candidate with the greater number of votes. However, where there are three or more candidates, the winner is the candidate with more than half the number of votes. In other words, it is not enough to be the leading candidate in the race. You must have at least half the number of votes cast in that election. This is the 50 percent plus one vote principle which was applied in the 2008 election. The idea behind this rule is that a president should be someone who commands an absolute majority of those who participated in the voting process.
Where no candidate has received more than half the number of votes, there will be a runoff presidential election. This will be a two horse race, pitting the winner against the candidate with the second highest number of votes in the election. The president has already set a date for the run-off election as 8 September 2018. Some people have raised questions why the president has set this date but this is in line with the law. In any event, if there is good cause to extend the period for holding the run-off election, one can apply to the Electoral Court for an extension.
In the unlikely event of a draw in the run-off election, parliament has the power to convene and elect the president by secret ballot.
Presidential election results must be declared within a period of five days after the polling day. However, where a recount has been ordered, the result must be announced five days after the completion of the recount. The Electoral Court may, if ZEC makes an application, and provides good cause, extend the period. These clauses were added to prevent the 2008 situation when it took 6 weeks before the presidential elections results were announced.
An aggrieved person is entitled to challenge the outcome of a presidential election. This is provided for in the Constitution and also elaborated in the Electoral Law. The Electoral Law specifies that the procedure for handling the challenge is through trial of the election petition. This was a contentious issue when a challenge to the presidential election was presented in 2013. There are specific rules regarding the procedure for a presidential petition which will be covered separately.
The Constitution requires state media to be fair, non-partisan and impartial in its coverage. It should not promote or prejudice the interests of any political party or candidate. These provisions are supplemented by the Electoral Law which requires public broadcasters to give all political parties and independent candidates such free access to their broadcasting services as may be prescribed. The law also requires regulations which specify the amount of time to be allocated to parties and candidates and to ensure that each political party and independent candidate have a reasonable opportunity to present their case through the broadcasting service.
Political advertising is an important part of the election campaign for parties and candidates. There is no legal obligation on the media to run political adverts but if they do, they must afford fair and equal opportunities to all. The Electoral Law requires a media house “to offer the same terms and conditions of publication, without discrimination, to all the political parties and candidates contesting the election”.
During an election period both print and electronic news media are required to treat all candidates and parties equitably in their news media, “in regard to the extent, timing and prominence of the coverage accorded to them”. News reports must be “factually accurate, complete and fair” There must be “a clear distinction … between factual reporting on the election and editorial comment on it”. Any inaccurate reports must be “rectified without delay and with due prominence”. Parties and candidates must be given “a reasonable right of reply to any allegations made in their news media” which are false. They must also not promote or encourage violence or hate speech. They must also avoid language that is “likely to lead to undue public contempt towards any political party, candidate or class of person in Zimbabwe”.
Despite the existence of these rules, State media has been unduly biased towards ZANU PF and against the MDC-T. It’s not long ago that both The Herald and The Chronicle published patently false reports and a cartoon which depicted the MDC Alliance candidate in negative light. The African Union observer report in 2013 highlighted the biased media coverage as one of the shortcomings that needed to be rectified. However, 5 years later, and even after the removal of Mr Mugabe last November, State media is still heavily biased in favour of ZANU PF and against the MDC and other opposition parties.
ZEC has an obligation to monitor the Zimbabwean news media during any election period to ensure that political parties, candidates, broadcasters, print publishers and journalists observe the Electoral Law. ZEC can request the help of the Zimbabwe Media Commission(ZMC) and the Broadcasting Authority of Zimbabwe. The Electoral Law also allows any other person apart from the ZMC to monitor news media and to report on their conduct during an election period. This provides space for civil society organisations and indeed political parties to carry out media monitoring. Media coverage is part of the rules of the game that determine procedural legitimacy of the election. It matters to monitor the media and where it is unduly biased it can impact the legitimacy of the election.
ZEC’s regulatory powers
One of the most contentious issues is the power given to ZEC in terms of section 192(4). Under this provision, ZEC has wide discretionary powers to make new rules in respect of elections which it considers necessary or desirable to ensure that the election is properly and efficiently conducted. These rules may also “deal with any matter or situation connected with, arising out of or resulting from the election.” While this might sound innocuous, this power has been used in the past in a manner that has raised suspicion. In 2008, ZEC used this power to prolong the date of the presidential run-off election beyond what was required by law. Use of this broad power facilitated the inordinate delay in the announcement of presidential election results. It’s important to keep a vigilant eye on ZEC to prevent abuse of this power.
In any event, section 192(4) cannot now be used since the election date has been declared. This is because, as we saw at the start of this BSR, the Constitution prohibits any new rules or amendments to the Electoral Law once the election date has been declared.
In Part 3 of this BSR special series we will look at local authority elections and issues relating to electoral malpractices.