Election Watch: Death or Withdrawal of a Candidate

ELECTION WATCH 28/2018

 

FILE – A boy plays next to election posters in Bulawayo, Zimbabwe, June 23, 2018. The U.S. said Monday it cut funding to some civil action groups in the country fearing that the money could be misused ahead of July 30 elections.

In the Event of Death or Withdrawal of a Candidate

Death of Presidential Candidate

Some news reports have suggested that in the event of the death of the President, the elections would have to be cancelled and the process restarted.  These reports were no doubt prompted by the deplorable attempt on President Mnangagwa’s life as he is also a presidential candidate for the forthcoming elections.

The correct legal position, as stated in section 108 of the Electoral Act [link], is that the death of a presidential candidate would stop only the presidential election.  The other elections would proceed.  Section 108 states that “where a candidate duly nominated for election as President dies on or before the day on which the poll in the election is to be taken”, i.e., on or before 30th July, there must be a further proclamation in the Government Gazette announcing “the sitting of a new nomination court”.  Thereafter the provisions of Part XVII of the Electoral Act, headed Provisions Relating to Elections to Office of President, would apply accordingly.  These include the election can only take place within 30 and 63 days after the sitting of the new nomination court.

If a Constituency Candidate Dies

The death of a candidate, if it is after nomination and before the close of polling, stops all proceedings to fill the seat for the constituency concerned [Electoral Act, section 50].  That particular constituency will elect a candidate after the general election in the same process used for a by-election

Note: Section 50A makes limited provision for a political party to substitute a new candidate where one of its candidates dies, but that provision  is now academic because any substitution under it would have had to be made no later 23rd June [“nine days after nomination day” – section 50A(2)].

The Death of a Party-List Candidate

If a party-list candidate dies at any time before the date when results of the particular party-list election concerned are decided by ZEC, ZEC must fill the gap with the next person on the party list for a women’s quota seat, or the next person of the same sex for a Senate or Provincial Council seat. If the party list no longer contains any eligible names, ZEC must proceed as if a vacancy occurred and invite the political party entitled to fill the seat to make a fresh nomination, which ZEC will advertise for objections or representations until a qualified person is identified by the party and appointed by ZEC to fill the vacancy.  The relevant provision is section 45H of the Electoral Act.

The Death of an Urban/Rural District Council Candidate

The death of a candidate, if after nomination and before the close of polling, stops all proceedings in the election to fill the seat for the ward concerned that particular ward will elect a candidate after the general election in the same process used for a by-election [Electoral Act, section 127].

Withdrawal of Candidate

The Electoral Act caters for the possibility that duly nominated candidates may wish to withdraw from the election.  There are different rules for different candidates:

Presidential candidates  A candidate may withdraw before Monday 9th July [“at any time before 21 days from polling day” – section 107]. 

National Assembly constituency candidates and local authority candidates  A candidate may withdraw before Monday 30th July [“at any time before polling day” – section 49]. 

Party-list candidates   Section 45H allows for withdrawal at any time before the day on which the provincial elections officer is due to work out the allocation of party-list seats among participating political parties [which will be once all the constituency results for the province concerned have been officially declared].

What about ZEC’s 22nd June “deadline” for withdrawals?

ZEC’s announcement of a 22nd June deadline for withdrawal of candidates in the elections was open to misinterpretation as a statement that candidates would not be permitted to withdraw after 22nd June.  In fact, ZEC did not say that and it would have been wrong if it had.  It is reasonably clear from ZEC’s statement that it was merely warning that printing of ballot papers would begin soon after 22nd June, and that the names of candidates withdrawing thereafter would probably still appear on the printed ballot papers.  That would obviously be inconvenient, not only for ZEC and its officials but also for voters and candidates and political parties – in fact, for all concerned [see next paragraph].

Deletion of Name of Withdrawn Candidate on Ballot Paper

If the withdrawal of a candidate leaves only one duly nominated candidate for a particular seat, the remaining candidate will be declared elected with effect from polling day and further proceedings will be called off.

If, however, a withdrawal leaves two or more candidates for a seat, polling must go ahead in the normal way, and ZEC must “take all such steps as are reasonably practicable to ensure that”:

  • “the withdrawal is drawn to the attention of voters” – for example, by notices at polling stations and in the press and announcements to voters on radio and TV and on the spot at polling stations; and
  • “the name of the candidate who has withdrawn is either omitted or deleted from all ballot papers” – meaning that if a withdrawal comes so late in the day that the ballot paper cannot be reprinted, the ZEC officials at the polling stations affected will have to ensure that the name of the withdrawn candidate is effectively deleted.

False Statements about Candidate’s Illness, Death or Withdrawal

Political parties should obviously assist ZEC in spreading the word to voters about a candidate’s withdrawal or death.  But facts must be carefully checked and care taken to avoid spreading mere rumours and fake news.

It is a criminal offence to spread false statements of the illness, death or withdrawal of a candidate for the purpose of promoting or procuring the election of another candidate, knowing the statement to be false or even not knowing for certain or believing it to be true [Electoral Act, section 148].  And if the offence is committed by a rival candidate or a rival candidate’s chief election agent, that would constitute an electoral malpractice and might lead to the nullification of the rival’s election.

Nomination Court Results [Names of Candidates]

The Acting Chief Elections Officer [CEO] of the Zimbabwe Electoral Commission [ZEC] has, as he is required to do by the Electoral Act, gazetted the names all duly nominated candidates for the Presidential, Parliamentary and Provincial Council elections in Government Gazettes Extraordinary.  The names were also published in newspapers.

ZEC published lists of candidates for seats on urban and rural district councils in newspapers, as required by section 125 of the Electoral Act.

For those who have been unable to obtain list of candidates or who cannot read the small print in the newspapers the official ZEC lists, as gazetted in the Government Gazette, are available on the Veritas website:

Presidential election – 23 candidates [GN 410/2018] [link]

National Assembly constituency seats – [GN 411/2018] [link]

Party-List seats in Senate, National Assembly and Provincial Councils – GN 412/2018 [link].

 

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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