Urgent Chamber Application
UCHENA J: The first
applicant the Movement for Democratic Change is a political party,
commonly known as the (“MDC”). It will be referred to as the
first applicant. The second applicant Mr Morgan Tsvangirai is its
President. He was the first applicant's presidential candidate in
the just ended harmonized elections held on 29 March 2008. He will be
referred to as the second applicant.
The first respondent is the
Chairman of the Zimbabwe Electoral Commission, a Commission
established in terms of section 61(1) of the Constitution of
Zimbabwe. He was appointed in terms of section 61(1)(a) of the
Constitution. He will be referred to as the first respondent. The
Commission is commonly known as (“ZEC”), in reference to the
abbreviation of its name. It will be referred to as ZEC in this
judgment.
The second respondent is ZEC's
Chief Elections Officer appointed in terms of section 11 of the
Zimbabwe Electoral Commission Act [Cap
12:12], hereinafter
called the Zimbabwe Electoral Commission Act. He will be referred to
as the second respondent.
The Facts
The first respondent through ZEC, conducted harmonised elections
which were held on 29 March 2008. The elections were contested by
candidates aspiring for the following positions, Councilors of local
authorities, Members of the House of Assembly and the Senate, and
President of the Republic of Zimbabwe.
It is common cause that the contestants of the first three positions
now know the results of their elections. The results were announced
at the Ward Constituency, House of Assembly and Senatorial
constituency levels. The winners were declared by the respective Ward
and Constituency Elections Officers. House of Assembly and
Senatorial results have also been announced by the National Collation
Centre presided over by the second respondent.
It is conceded by the respondents that this was merely for the
benefit of the general public as the legal requirements had been
satisfied at constituency level.
The applicants who have an interest in presidential election results,
filed an urgent application seeking this court's provisional order,
compelling the respondents to announce the results.
The respondents while conceding that presidential results have not
yet been announced contented that they will announce them when they
are ready.
They contented, in
limine that, they are
not subject to the jurisdiction of this court.
After the court's ruling on the
issue of jurisdiction Mr Muchadehama
for the applicants submitted that the application was urgent and
outlined the facts establishing the urgency. In response, Mr
Chikumbirike,
for the respondents, submitted that the application is not urgent,
and should have been brought by way of ordinary application.
Jurisdiction
On 6 April 2008, before this case
could be heard on the merits Mr Chikumbirike
for the respondents submitted that this court did not have
jurisdiction to hear the applicant's application. He relied on the
provisions of section 61(5) of the Constitution which provides as
follows:
“(5) The Zimbabwe Electoral
Commission shall not, in the exercise of its functions in terms of
subs (4), be subject to the direction or control of any person or
authority.”
The provisions of subsection (4)
which are relevant to this application are found in subsection
(4)(1)(a). They provide as follows:
“(4) The Zimbabwe Electoral
Commission shall have the following functions -
(a) to prepare for, conduct and
supervise –
(i) elections to the office of
President and to Parliament; and
(ii) elections to the governing
bodies of local authorities; and
(iii) referendums; and
to ensure that those elections and referendums are conducted
efficiently, freely, fairly, transparently and in accordance with the
law”.
Mr Chikumbirike
submitted that this
court has no jurisdiction to hear the applicant's complaint, and
should therefore dismiss the application with costs.
Mr Muchadehama
for the applicants submitted that the respondents are subject to the
jurisdiction of this court and that, is why section 18 of the
Zimbabwe Electoral Commission Act provides for the citing of the
first respondent, as a nominal citee. He further submitted that the
court has jurisdiction to inquire into any complaint against the
Zimbabwe Electoral Commission provided that it observes ZEC's
independence if it is complying with the provisions of the law. He
further submitted that this court can intervene if the respondents
stray from the provisions of the law.
I agree with Mr Muchadehama's
submissions as it could never have been intended by the legislature,
that ZEC could conduct itself outside the provisions of the law
including the provisions of section 61(4) of the Constitution itself,
and still remain outside the jurisdiction of this court.
The clear intention of the
Legislature in section 61(5) of the Constitution was to ensure ZEC's
independence provided it was operating within the law.
It has to exercise its functions
as provided by subsection (4) for it to enjoy that immunity.
It cannot for example conduct elections unfairly, outside the law,
and which are not free and fair, but on being sued insist that the
courts have no jurisdiction over it. The court would in such
circumstances have jurisdiction to hear and determine complaints
against ZEC.
It was for these reasons that I ruled that this court has
jurisdiction to hear the applicant's application.
Urgency
After the ruling on the issue of
jurisdiction, Mr Muchadehama
made submissions on the urgency of the application.
He submitted that section 110(3)
of the Electoral Act [Cap
12:13]
hereinafter called the Electoral Act, provides, for a re-run within
21 days after the previous election in the event of no candidate
obtaining a clear majority in the election. This he submitted means a
delay in announcing the election results will deprive candidates of
sufficient time to prepare for the re-run. He also submitted that the
respondents would not have enough time to prepare for the re-run.
Mr Chikumbirike
for the applicants submitted that there was no urgency in the
applicant's application because its cause of action was based on
the announcement of the results of the Presidential poll. He argued,
that those results where not due, as the provisions of the Second
Schedule have not yet been complied with. He therefore reasoned that
the cause of action would arise when the provisions of the Second
Schedule of the Electoral Act would have been complied with. He
summed up by submitting that the applicant's cause of action as
stated in Tendai Biti's founding affidavit has not yet arisen hence
the absence of urgency in the application.
Mr Muchadehama
in response disputed Mr Chikumbirike's
submission that the cause of action had not yet risen. He submitted
that Tendai Biti's affidavit complaints of delays and the
respondent's wasting time on already declared election results
instead of doing what they are mandated to do, that is the collation
and verification of Presidential results and their announcement.
A reading of Tendai Biti's founding affidavit confirms that though
he in some paragraphs emphasised the announcement of results he
clearly brought out a case against the general delay. That was in
fact the theme of the applicants' complaint in paragraphs 5, 11,
12, 13, 14, 16, 17, 24, 26 and 27.
I am therefore satisfied that the
applicants' application is premised on delays and the respondents'
wasting time doing everything else other than what they should have
been doing. Therefore the cause of action has arisen though the
wording of the provisional draft order seeks the announcement of
results within four hours of the service of it on the respondents.
This can be corrected by a variation in terms of Rule 246(2) of the
High Court Rules 1971 which provides as follows:
“(2) Where in an application
for a provisional order, the judge is satisfied that the papers
establish a prima facie case he shall grant a provisional order
either in terms of the draft filed or as varied”.
This means an application for a
provisional order which has been prima
facie proved cannot be
dismissed because of a poorly drafted order. The court can vary it
and grant a correctly formulated provisional order consistent with
the prima facie
case proved.
In fact on being granted the order becomes the court's order. The
court must therefore be satisfied by its formulation before granting
it.
It was for these reasons that I, found, the application was urgent
and proceeded to hear it on the merits.
Procedural Issues
In response to Mr Muchadehama's
submissions on the merits, Mr Chikumbirike
for the respondents
raised several procedural issues which he should have raised as
preliminary issues.
He in his first procedural issue
contented that the applicant's application was not made in the
correct form. He submitted that it should have been in Form 29 with
appropriate modifications.
Mr Muchadehama
for the applicants in reply submitted that the applicants'
application was made in the correct form and that even if it was not
in the correct form, Rule 229C provides that such failure shall not
in itself be a ground for dismissing the application.
The court can however dismiss such an application, if it has caused
prejudice to the other party which cannot be cured by directions for
service of the application on the other party with or without an
order of costs.
An examination of the applicant's
application reveals that it is in Form 29B when it should be in Form
29 with relevant modifications as provided by the proviso to Rule
241(2).
The applicants have however, not suffered any prejudice.
They were served with the application and they took no issue until
during their counsel's response on the merits.
Even though the issue was raised
no prejudice was alleged. I am satisfied that nothing turns on this
as either Rule 229C or Rule 4C could be resorted to, to condone the
application's failure to strictly comply with the proviso to Rule
241(2).
In his second procedural issue Mr
Chikumbirike
raised the issue of the applicants not having filed an answering
affidavit.
He submitted that, that means the applicants have accepted the
respondent's averments in the opposing affidavit.
Mr Muchadehama's
response was that most of the issues had already been put in
contention by the applicant's founding affidavit deposed to by
Tendai Biti.
That may be so in respect of the
delay and aspects related to it. It is however not correct in respect
of the reason for the delay averred to in CHIWESHE J's opposing
affidavit. CHIWESHE J said the delay is due to ZEC having received
complaints about miscounting and is considering the evidence for it
to decide whether or not to order a recount of the Presidential votes
before announcing the results.
The failure to file an answering affidavit disputing that fact means
the fact that complains have been received is not in dispute. However
the legality of the recount can still be challenged as it is a matter
of law.
Mr Chikumbirike
in his third procedural issue raised the issue of the second
applicant not having filed any affidavit.
He submitted that he should have filed a founding affidavit or at
least a supporting affidavit verifying the averments made on his
behalf by the first applicant's deponent.
Mr Muchadehama
in response submitted that the averment by Tendai Biti that he was
authorized to depose to the founding affidavit by the second
applicant, is sufficient. He relied on Rule 227(4)(a) which provides
as follows:
“(4) An affidavit filed with a
written application –
(a) shall be made by the
applicant or respondent, as the case may be, or by a person who can
swear to the facts or averments set out in therein”.
There is no dispute that Tendai
Biti is the Secretary General of the first applicant and can swear
positively to issues involving the first and second applicants as
regards events which took place in connection with the announcement
of Presidential results.
The issues in this case are
purely party matters and the second applicant being the first
applicant's Presidential candidate is merely joined not because he
has issues for which he has separate and distinct information which
the first applicant's Secretary General is not privy to.
I would therefore find that
nothing turns on this issue. The affidavit filed by Tendai Biti
satisfies the requirements of Rule 227(4).
Mr Chikumbirike's
fourth procedural issue was on para (1) of the draft provisional
order seeking the same relief, as is sought in para (1) of the final
order.
Mr Muchadehama
conceded the error and sought a variation of the provisional order so
that it grants a relief different from that sought in the final
order. This issue has already been dealt with in my ruling on the
issue of urgency.
Mr Chikumbirike's
final procedural issue was on what he alleged was an improper joinder
of the first and second respondents.
He submitted that the first
respondent plays no roll in the processing and announcement of
Presidential results, and should therefore not have been joined with
the second respondent in these proceedings.
Mr Muchadehama
in his response correctly submitted that the first respondent was
correctly cited in his nominal capacity as the Chairman of ZEC.
Section 18 of the Zimbabwe Electoral Commission Act provides for his
being a nominal citee, just as the Minister of Home Affairs would be
cited together with a Constable who would have committed a delict
during the course of his duties.
I find no merit in Mr
Chikumbirike's
submission on this issue, especially in view of CHIWESHE J's
concession that there was no issue on the citation of the parties.
The respondents' in their
opposing affidavit said the Commission received complaints about
miscounting of the Presidential votes which it is considering with a
view to ordering a recount before those results are announced.
This clearly confirms the
importance of citing the first respondent as a party as it is the
Commission which is considering the complaints.
The second respondent cannot deal
with that issue, and cannot process and announce Presidential results
until that issue is resolved.
The first respondent has therefore been correctly cited as a party in
these proceedings.
The Merits
On the merits the applicants,
contented through Tendai Biti's founding affidavit dated 3 April
2008, that there has been an unreasonable delay in the processing and
announcement of Presidential results. They submitted that the
harmonised elections having been held on 29 March 2008, the results
for the Presidential poll should have been announced.
They accused the respondents of employing delaying tactics by
announcing the already declared results for the House of Assembly and
the Senate.
They submitted that the respondents were thereby avoiding their
primary responsibility.
They explained the procedure laid
down in sections 64, 65 and the Second Schedule of the Electoral Act
which should have been followed and said it should not have taken
long to collate, verify and announce the results.
They submitted that the procedure to be followed signifies the
Legislature's intention that the results of the poll must be
processed and be announced without any undue delays.
On the issue of delays Mr
Chikumbirike
for the respondents submitted that, the respondents had not strayed
from what the electoral laws require them to do. They can therefore,
not be compelled to release the results when they were operating
within the law.
He submitted that, there was no provision in the Electoral Act
requiring the respondents to collate, verify and announce the results
in a specified period. He therefore argued that the respondents were
entitled to act at their own discretion, but in terms of the
electoral laws.
Provisions of the electoral laws and their interpretation
The question of whether or not
the respondents are operating within the law can only be determined
after an analysis of provisions of the Electoral Act which deal with
the transmission of Presidential results from polling stations
through constituency centres to the Chief Elections Officer.
Section 64(2) of the Electoral Act provides for the transmission of
polling station return as follows:
“(2) Immediately after affixing
a polling station return on the outside of the polling station in
terms of subs (1)(e), the presiding officer shall personally transmit
to the constituency elections officer for the constituency to which
the polling station belongs –
(a)…
(b) the poling-station return certified by himself or herself to be
correct:
provided that if, by reason of death, injury or illness, the
presiding officer is unable personally to transmit the ballot box,
packets, statement and polling station return under this subsection,
a polling officer who was on duty at the polling station shall
personally transmit these”.…
It is clear from the provisions of this section that polling station
returns and other election results material must be urgently, and
under the personal care of the presiding officer, be send to the
constituency elections officer.
Even the death, injury or illness of the presiding officer is not
allowed to delay the transmission of the polling station-returns and
other election result materials to the constituency elections
officer.
In the event of death, injury or illness a polling officer must take
over and deliver them with the same urgency the presiding officer
should have done.
The presidential polling station-return is part of the material to be
urgently transmitted.
The second schedule to the
Electoral Act in paragraph 1(1) and (2) provides for the further
handling and transmission of Presidential results. It provides:
“(1) After the number of votes
received by each candidate as shown in each polling-station return
has been added together in terms of subpara (1) of subs (3) of
section 65 and the resulting figure added to the number of postal
votes received by each candidate, the constituency elections officer
shall forthwith -
(a) record on the constituency
return the votes obtained by each candidate and the number of
rejected ballot papers in such a manner that the results of the count
for each polling station are shown on the return;
(b) display the completed
constituency return to those present and afford each candidate or his
or her election agent the opportunity to subscribe their signature
thereto; and
(c) transmit to the Chief
Elections Officer by hand through a messenger the constituency return
or a copy thereof certified by the constituency elections officer to
be correct.
(2) Immediately after arranging
for the constituency return to be transmitted in terms of paragraph
(c) of subpara (1), the constituency elections officer shall affix a
copy of the constituency return on the outside of the constituency
centre so that it is visible to the public”.
The provisions of paragraph 1 of
the Second Schedule clearly express the urgency with which the
constituency return has to be transmitted to the (“second
respondent”) the Chief Elections Officer.
A reading of subpara (1)(c) and subpara (2) reveals the urgency
through the use of the word “immediately” and the fact that the
affixing of the constituency return outside the constituency centre
can only be attended to after the Constituency Elections Officer has
arranged for the transmission of the constituency return to the Chief
Elections Officer.
The question that has to be answered is why should these returns be
urgently transmitted from polling stations and constituency centres,
if the legislature did not expect the Chief Elections Officer to
equally attend to them without delay?
The inquiry must be taken to the next and subsequent stages of the
process.
Paragraph 2(1) of the Second
Schedule provides:-
“(1) The Chief Elections
Officer shall give reasonable notice in writing to each candidate or
his or her chief election agent of the time and place where the Chief
Elections Officer will verify and collate all the constituency
returns”.
Mr Chikumbirike
seems to rely on this paragraph for the absolute discretion he claims
for the respondents.
It is true no time within which the notice shall be given is
specified, but does it mean the second respondent was intended to
take whatever time he deemed necessary before inviting the candidates
for the collation and verification of the constituency returns.
An analysis of para 2(1) seems to reveal that the apparent relaxation
of the urgency previously insisted on in the preceding sections and
paragraphs could be for the benefit of the invitees. The Chief
Elections Officer must await their arrival before the collation and
verification starts. Even if that was the intention of the
legislature he could have been required to invite them forthwith or
immediately.
It must be noted that these returns will be transmitted by hand from
all constituencies scattered throughout the country. The distance
between each constituency centre and the National Collation Centre
determines the arrival of each return.
The legislature could in those circumstances have provided for
urgency soon after the receipt of the last return. The fact that it
did not leaves its intention unclear.
However in the construction of statutes the intention of the
legislature can be ascertained from the context within which the
provision in question is found.
This part of the Second Schedule
should therefore be construed in conformity with the whole Schedule
and other provisions of the Electoral Act.
The inquiry must therefore move on to the remaining provisions under
paragraph 2.
Paragraph 2(2) and (3) provides as follows:
“(2) At the time and place
notified for the verification and collation of the constituency
returns referred to in subpara (1) and in the presence of such
candidates, their chief elections agents and observers as are
present, the Chief Elections Officer shall display each constituency
return to those present and shall, on request, allow a candidate or
chief election agent of a candidate to make notes of the contents of
each constituency return”.
This paragraph establishes that at the time notified the collation
and verification should start and continue irrespective of the
absence of other candidates.
The words “as are present” are instructive.
The urgency which seems to have been abandoned in subpara (1) seems
to have been resumed. In para 2(3) the legislature provided:
“(3) When the Chief Elections
Officer has completed the verification of the constituency returns
under subpara (2) the Chief Elections Officer shall, in the presence
of such persons referred to in subpara (2) as are present, add
together the number of votes received by each candidate as shown in
each constituency return”.
This means once the invitees referred to in subpara (1) arrive
verification and collation shall continue in their presence.
We move on to para 3(1) which provides:
“3(1) Subject to subpara (2),
after the number of votes received by each candidate as shown in each
constituency return has been added together in terms of subpara (3)
of para 2, the Chief Elections Officer shall forthwith declare the
candidate who has received (the qualifying votes in terms of (a) and
(b)) to be duly elected as President of the Republic of Zimbabwe with
effect from the day of that declaration”.
This means once the verification
and collation starts it continues until the winning candidate is
forthwith declared the President of Zimbabwe if the result produces a
winner with a majority of the votes cast.
This clearly proves urgency is resumed from the time the invitees
come till the declaration of the winner.
This means from the transmission
of the polling and constituency returns the legislature intended that
officials must urgently forward returns to the Chief Elections
Officer who must from the arrival of invited candidates or their
agents urgently collate and verify and declare the result of the
Presidential poll.
Mr Muchadehama
submitted that section 110(3) of the Electoral Act must be factored
in, in ascertaining the legislature's intention on whether or not
the respondents were intended to act with urgency.
The section provides as follows:
“Where two or more candidates
for President are nominated, and after a poll taken in terms of subs
(2) no candidate receives a majority of the total votes cast, a
second election shall be held within twenty-one days after the
previous election in accordance with this Act.”
He further submitted that the possibility of a second election within
twenty-one days is consistent with the urgency expressed in the
sections and paragraphs already discussed above. He said the time for
the second election is fast approaching and according to his
calculation the second election must be held on 19 April 2008.
He submitted that the legislature
being aware of the possibility of a re-run could not have intended
para 2(1) of the Second Schedule to give the second respondent a wide
discretion as to when he should collate and verify constituency
returns.
The limited period between the first and second election suggests
that the first election's results must be processed with urgency to
avoid prejudicing candidates who will be contesting the second
election.
The processing of Presidential
results must in my view be given priority when compared to the
announcement by the National Collation Centre of other elections
which have no possibility of a re-run.
I am therefore satisfied that the
legislature intended that Presidential election results should be
processed without any undue delay.
It is however not in dispute that
the legislature did not specify the period within which Presidential
results should be collated, verified and announced.
Mr Muchadehama
said it must be within a reasonable time and relied on the provisions
of section 3(1)(b) of the Administrative Justice Act [Cap
10:28] hereinafter
called the Administrative Justice Act.
It provides as follows:
“(1) An administrative
authority which has the responsibility or power to take any
administrative action which may affect the rights, interests or
legitimate expectations of any person shall –
(a) act lawfully, reasonably and
in a fair manner; and
(b) act within the relevant
period specified by law or, if there is no such specified period,
within a reasonable period after being requested to take the action
by the person concerned”.
Mr Chikumbirike
for the respondents contented that the Administrative Justice Act
does not apply to the respondents as the Commission is not an
administrative authority.
Mr Muchadehama
contented that it is and relied on its being created in terms of
section 3 of the Zimbabwe Electoral Commission Act.
Mr Chikumbirike
submitted that section 3 of the Zimbabwe Electoral Commission Act has
since been repealed and substituted.
He is correct the provisions which created the Commission in the
Zimbabwe Electoral Commission Act was repealed and substituted by one
which provides for the procedure it shall follow and how it shall
perform its functions.
The Commission as it now stands
was established in terms of section 61(1) of the Constitution. Mr
Muchadehama
countered that in any event the second respondent remains within the
meaning of “an administrative authority” as defined by section 2
of the Administrative Justice Act, as he is authorized by “an
enactment to exercise or perform any administrative power or duty”.
I agree with Mr Muchadehama's
submission as the Chief Elections Officer is employed by ZEC in terms
of section 11 of the Zimbabwe Electoral Commission Act, and his
duties and functions are specified in that section.
The remaining issue on that aspect is whether the establishment of
ZEC by the Constitution excludes it from the definition of an
“administrative authority”.
Mr Muchadehama
further submitted that ZEC remains an “administrative authority”
by virtue of the provisions of Parts I and II of the schedule to the
Administrative Justice Act.
Mr Chikumbirike
submitted that, that is not the correct way of determining whether or
not ZEC is an administrative authority.
Mr Muchadehama's
submission is premised on the fact that ZEC is not mentioned among
the administrative authorities for which, the application of the
Administrative Justice Act is limited or excluded.
It is true that ZEC is not mentioned in Parts I and II of the
Schedule, but the limitation and exclusion must only apply to those
who fall under the definition of “administrative authority”.
Those who do not fall within the definition need no limitation or
exclusion from the application of the Act as they are already not
affected by its application.
I would therefore agree with Mr
Chikumbirike
that the fact that ZEC was not mentioned in Parts I and II does not
assist in the determination of whether or not it is an
“administrative authority.”
Mr Muchadehama
sought to establish the validity of the applicant's claim that ZEC
had acted outside the law by proving that it as an “administrative
authority” had not announced the Presidential results within a
reasonable time.
In my view the conduct of ZEC
should be measured against section 61(4)(a) of the Constitution which
provides as follows:
“The Zimbabwe Electoral
Commission shall have the following functions -
(a) to prepare for, conduct and
supervise -
(i) elections to the office of
President and to Parliament;
(ii) elections to the governing
bodies of local authorities;
(iii) referendums; and
to ensure that those elections and referendums are conducted
efficiently, freely, fairly, transparently and in accordance with the
law”.
The standard set by the legislature in the Constitution is for ZEC to
perform any function required of it by the legislature through the
Constitution, the Electoral Act or the Zimbabwe Electoral Commission
Act, efficiently, freely, fairly, transparently and in accordance
with the law.
The use of the word “efficiently” when construed in conformity
with the urgency provided for in the Electoral Act means ZEC must act
accurately and timeously.
In this case the question to be
answered is, did the respondents act efficiently, fairly,
transparently and in accordance with the law towards the collation,
verification and announcement of Presidential results.
If they did, that should be the end of the inquiry. If they did not
the failure must be identified before this court can intervene and
order compliance.
When the above criteria is applied to the facts of this case and the
law as provided in the Electoral Act the applicants' allegations
that there was delay seems to be justified by the legislature's
intention that the election results must be processed without undue
delay.
This intention is revealed through the provisions which provide for
the urgent transmission of polling station-returns and constituency
returns to the Chief Elections Officer, and how he should conduct the
collation, verification and declare the winning candidate.
In the absence of an explanation the delay between 29 March 2008 and
4 April 2008 seems to be unjustified and points to a lack of
efficiency.
The period between the holding of the elections and the date of
application is six days.
Three other elections involving greater numbers of candidates were
processed and finalized at their levels within two days of the date
of the elections.
The work to be done by the Chief
Elections Officer is made simpler by the counting and collation done
at polling stations and constituency levels. All he has to do is to
verify and display the constituency returns and add the figures
thereon to identify the winning candidate whom he should forthwith
declare the President of Zimbabwe. This task should all things being
equal not have taken the second respondent up to 4 April 2008 to
announce the Presidential results.
The explanation
The respondents explained the delay through CHIWESHE J's opposing
affidavit. In paragraph 18 of his opposing affidavit he said:
“In response to the letter of 2
April 2008 Annexure 'B' I had prior to receiving the application,
which was served on me last night, prepared a press statement, which
I intended to release, not only to inform the applicants of the
Commission's position on these issues, but to the country and world
at large. I attach a copy of the statement and request this
honourable court to incorporate it as part of this affidavit. The
statement relates extensively and accurately to the correct legal
position. This statement is annexed as Annexure 'C'”.
At pp 2 to3 of Annexure “C”
he explained that ZEC had received several complains in terms of
section 67A of the Electoral Act.
At 2 of Annexure “C” he said:
“In this process, sight must
not be lost of the provisions of section 67A(1) of the Electoral Act
(Electoral Laws Amendment Act No 17/07) which provides as follows:
'(1) Within 48 hours after a
constituency elections officer has declared a candidate to be duly
elected in terms of s66(1), any political party or candidate that
contested the election in the ward or constituency concerned may
request the Commission to conduct a recount of votes in one or more
of the polling stations in the ward or constituency.'
This is a right accorded to a
candidate or a political party that contested an election for either
of the House of Assembly. The same is also applicable to a
Presidential candidate, by virtue of the provisions of Part XVIII in
s112, which imports Part XIII of the Electoral Act (where s67A is
found).
For the avoidance of doubt, I relate to this section below:
'Subject to this Part, the
provisions of Parts XIII, (other than ss 66, 67, and 68, for which
the provisions of the second schedule are substituted), XIV, and XV,
shall apply, with any changes that may be necessary, to an election
to the office of President'.”
After explaining the effect of a
miscounting, even by one vote could have on a Presidential election,
CHIWESHE J concluded at pp3 - 4 by saying:
“The Commission, it must be put
on record, has received several complaints in terms of s 67A.
The Commission is in the process
of considering the evidence submitted, to
determine whether a recount should or should not be done? The
question, as to whether to order a recount, or not, is entirely in
the discretion of the Commission. This is provided in s67A(7) which
provides -
'The Commission's decision on
whether or not to order a recount and, if it orders one, the, extend,
of the recount shall not be subject to appeal'”.
Interpretation of the Law applicable to the explanation
The prospect, of a recount, generated spirited legal arguments for
and against it.
Mr Muchadehama
submitted that section 67A being part of section 67 was excluded from
the sections which were imported into Part XVII by section 112. He
further argued that section 67A does not apply to Presidential
elections, because it is not found in Part XVII where Presidential
elections are provided for.
Mr Chikumbirike
for the respondents argued that section 67A is a section of the
Electoral Act in its own right and was imported into Part XVII by
virtue of its not having been mentioned among the sections excluded
by section 112.
I agree with Mr Chikumbirike,
because a section in a statute has its own separate existence even if
it shares a section number with another section. It is distinguished
from the preceding section by the letter added to the section number
it shares with the preceding section.
A section in a statute is constituted by the provisions after its
section number up to the last subs under it.
In this case section 67 ends with
subsection (3), and the next section which is section 67A follows.
Section 67A was not in the
original Electoral Act. It was introduced by section 48 of Act 17 of
2007.
If the legislature intended to
make it part of section 67 it would have introduced it into the Act
as a subsection of section 67. A new section is usually placed in the
part of the statute where it fits into the scheme of the Act.
In this case it was placed
between section 67 which provides for the notification of the result
of an election, and section 68 which provides for the publication of
the names of elected candidates in the Gazette, because that is where
a recount conveniently fits into the scheme of the Electoral Act. It
determines the winning candidate whose name should be published.
I am therefore satisfied that
section 67A enjoys a separate existence from section 67.
Therefore its exclusion from the
sections of Part XIII, excluded by section 112 from importation into
Part XVII, means it was imported into Part XVII.
Mr Muchadehama
for the applicants summed up by submitting that even if section 67A
is held to be part of Part XVII it does not apply to Presidential
elections because they have not yet been announced. He for that
argument relied on section 67A(1)'s provision that the complaint by
a party or candidate must be made within forty-eight hours after a
candidate for that election has been declared duly elected.
Mr Chikumbirike
for the respondents submitted that the forty-eight hours within which
the complaint must be raised after the winning candidate has been
declared does not apply to Presidential elections because section 112
provides for “necessary changes” in the importation of Parts
XIII, XIV and XV into Part XVII.
Section 67A as already found is
part of Part XVII, by virtue of its importation thereto by section
112. It therefore applies to Presidential election results with the
necessary changes referred to by section 112.
I however do not agree with Mr
Chikumbirike
that the necessary changes extend to the substantive provisions of
section 67A.
Where in a statute a provision from one Part of a Statute is imported
into another part of the same statute, to “apply, with any changes
that may be necessary” the court interpreting that statute is not
allowed to re-enact the relevant provision. It can only make
necessary changes, to make the provisions, fit into the importing
Part.
That power is limited to the names of officers who act in the
importing Part, the sections empowering them to act, and the places
where they are authorized to act etc.
The substantive provisions cannot be changed. They are infact the
reason for the importation. They are intended to influence the
provisions of the importing Part.
In this case section 67A(1), will
after the necessary changes have been made read as follows:
“(1) Within forty-eight hours
after the Chief Elections Officer has declared a candidate to be duly
elected in terms of section 110(6), as read with the provisions of
the Second Schedule, any political party or candidate that contested
the election for the office of President, may request the Commission
to conduct a recount of votes in one or more of the polling
stations”.
In its changed form section
67A(1) means a recount can only be requested within forty-eight hours
after the declaration of the results of the Presidential election.
A recount before the announcement
of the results, is in terms of section 67A(1) as imported into Part
XVII, not provided for.
If the request for a recount in
terms of section 67A(1), is the reason for the delay in announcing
the Presidential results, the delay is based on an incorrect
interpretation of section 67A(1). It would thus be an invalid reason
for delaying the announcement of the Presidential election results.
Mr Chikumbirike
for the respondents, further submitted that even if the forty-eight
hours apply ZEC, can on its own initiative order a recount in terms
of section 67A(4) which provides as follows -
“The Commission may on its own
initiative order a recount of votes in any polling stations if it
considers there are reasonable grounds for believing that the votes
were miscounted and that, if they were, the miscount would have
affected the result of the election”.
Mr Muchadehama
for the applicants, submitted that section 67A(4) should not be read
in isolation, but together with section 67A(1). He submitted that if
read in the context of the whole section, it means any recount
contemplated by it can only be done after the announcement of the
results.
An analysis of section 67A(4)
reveals that ZEC can act on its own initiative to order a recount. It
does not state when it can do so as is specified in respect of
subsection (1).
The information on which it may
act can come from any source including a complaint as provided in
subsection (1). It simply should have reasonable grounds for
believing that votes were miscounted.
If the legislature intended to
restrict the first respondent to considering a recount after the
announcement it could have made reference to subsection (1) as is
done in subsection (3). The wide discretion given to the first
respondent on this aspect is confirmed by the provisions of
subsection (7) of section 67A. It provides as follows:
“(7) The Commission's
decision on whether or not to order a recount and, if it orders one,
the extent of the recount shall not be subject to appeal”.
The fact that ZEC's decision to recount and the extent thereof is
not subject to an appeal means that it was intended to act
independently and that its decision would be final.
The provision barring an appeal simply means ZEC has been given a
very wide discretion as to whether or not to order a recount.
The provision that ZEC's decision shall not be subjected to an
appeal also means this court cannot inquire into that decision.
This should therefore be the end of the inquiry, as ZEC's conduct
can only be open to the jurisdiction of this court when it strays
from the law.
I should therefore find that the
reason proffered by the respondents for their failure to timeously
announce the Presidential results is legally valid. It can, therefore
justify the delay. The respondents have not strayed from the law.
This court is therefore not entitled to intervene and order the
respondents to announce the results on the basis of failure to comply
with the law.
Mr Chikumbirike
sought costs against the applicants' and their legal practitioners,
on the higher scale.
He submitted that the applicants' application was not necessary as
the applicants could have sought for information from the
respondents. He also relied on the fact that there are no time limits
within which the respondents are required to act, a fact which the
applicants should have known.
Mr Muchadehama
in response to the issue of costs said if any costs are to be ordered
they should be on the ordinary scale.
He disputed that the application could have been avoided as their
letter of 2 April 2008 was not responded to.
The issue of costs is in the court's discretion. That discretion
must be exercised in a manner that does not discourage litigants from
approaching the courts.
Electoral matters are very important to candidates, political parties
and the nation.
In this case the whole nation is waiting for results. The applicants
were anxious at the time they made their application. Their legal
practitioners wrote a letter expressing anxiety and demanding the
results but did not get a reply till they resorted to this
application. They should not be penalized by costs on the higher
scale for making an application in circumstances were delay is
conceded but has now been explained because of their application.
I would in the result dismiss the application with costs on the
ordinary scale.
Mbidzo Muchadehama & Makoni, applicants' legal
practitioners
Chikumbirike & Associates, respondents' legal
practitioners
