Tsvangirai’s withdrawal irrelevant-delay has nullified run-off

Two independent legal opinions commissioned by the Southern Africa Litigation Centre (SALC) support a conclusion that delay and the absence of a lawful run-off means the candidate who obtained the greatest number of votes in the election of 29 March 2008 has been duly elected as President and must be declared as such.

Read together, the opinions provided by David Unterhalter SC and Wim Trengove SC and Max du Plessis on different aspects of Zimbabwean electoral law argue that Zimbabwe’s Electoral Act provides both a majoritarian principle and a residual principle for determining the outcome of a Presidential election.

The majoritarian principle is predicated upon the requirement that a second election takes place within the 21 day period after the first election, which would have been April 2008. Only two candidates participate in this second election – those with the highest and next highest number of votes from the first round – and the candidate with the greater number of votes shall be declared the duly elected President, as set out in item 3 (1)(a) of the Second Schedule of the Electoral Act.

However item 3 of the Second Schedule also provides for a residual principle: where no second election is held or can be held with the requisite 21 day period, and there were two or more candidates for President, and no candidate received a majority of the total number of valid votes cast, item 3(1)(b) provides that the candidate with the greatest number of votes, and not the majority of the total number of votes, shall be the duly elected President.

This argument is set out in greater detail in an opinion titled: The Procedures Governing the Determination and Declaration of the President in the Event of an Unlawful Runoff. SALC has made the opinion publicly available at www.southernafricalitigationcentre.org

A second opinion commissioned by SALC addresses the issue of whether the Zimbabwe Electoral Commission (ZEC) is authorised to extend the runoff period beyond the statutorily mandated 21 day period and consequently whether the current runoff, scheduled for 27 June 2008, is lawful.

It is argued that ZEC was not constitutionally authorised to extend the run-off: that the regulatory powers it invoked in order to extend the run-off constitute an impermissible and unconstitutional delegation on the part of Parliament, that it violates the separation of powers principle and that insufficient guidelines were given to limit such delegation.

It follows that no lawful run-off can take place if not held within the 21 day period: that ZEC’s purported extension was unconstitutional and unlawful. This opinion is also available from SALC at www.southernafricalitigationcentre.org

If there can be no lawful run-off now, then as set out in the first opinion, the residual principle applies and the Chief Elections Officer is required to declare the candidate with the greatest number of votes the duly elected President. Even assuming that the run-off could be extended beyond the 21 day period, but that the run-off could not occur because violence and intimidation made it impossible that a free and fair election could be held, then the residual principle would still apply and the candidate with the greatest number of votes must be declared duly elected President.  

SALC Director, Nicole Fritz said: These opinions assume critical importance in light of recent developments. They provide clarity in what seems an increasingly uncertain situation. And the give the lie to any claim by Mugabe that he is the lawfully elected President.

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