MDC leader Morgan Tsvangirai’s withdrawal from the disputed presidential run-off election held on Friday could expose loopholes in the country’s electoral laws, as evidenced by different interpretations of the legality of the move by legal experts and the authorities.
The government, the Zimbabwe Electoral Commission (ZEC) and some legal experts argued that the withdrawal was "a legal nullity" as Tsvangirai registered his consent to take part in the election by contesting on 29 March, knowing the election could result in a run-off, an "irreversible process". ZEC went ahead with the election on Friday.
But others believe the withdrawal "is in compliance with the national laws and regional and international human rights standards relating to elections", and that Tsvangirai "can be said to have substantively complied with the requirements of the electoral law".
The conflicting interpretations, it was argued, also show "that the drafters (of the Electoral Act) overlooked the need to ensure that comprehensive provisions were included to deal with the procedure of the run-off”.
Tsvangirai pulled out of the run off against President Robert Mugabe citing the killing of more than 90 of his supporters, violence, intimidation and the disruption of his campaign rallies by State security agents and Zanu PF militias.
He said the run-off was “illegally delayed” as it was held after the 21 days from the date of announcement of results prescribed in the law, and that certain requirements, such as the payment of a deposit by candidates, had not been met.
In a letter to ZEC chairperson George Chiweshe on 24 June, Tsvangirai said he withdrew because “the conditions presently obtaining throughout the country make it virtually impossible for a proper election to take place”.
On the legality of his move, Tsvangirai said Section 107 of the Electoral Act which deals with the withdrawal of candidature from a Presidential election “was clearly not designed for a presidential run-off”.
The Zimbabwe Lawyers for Human Rights (ZLHR) backed Tsvangirai’s argument, saying “Section 107 referred to the withdrawal of a candidate from any single presidential election, but not for withdrawal of a candidate from a presidential run-off”.
Said the ZLHR: “Therefore, since there is no provision for withdrawal from a presidential run-off in the Electoral Act, one would have to look to the withdrawal procedures for a candidate in either parliamentary (Section 49) or local government (Section 126) elections: both of these provide that a candidate can withdraw ‘at any time before polling or the first polling day, as the case may be’. In this situation, the candidate merely has to provide written notification to the constituency elections officer.”
The organisation said that “by submitting his written notification of withdrawal three days before polling day, he can be said to have substantively complied with the requirements of the electoral law and the Zimbabwe Electoral Commission (ZEC) is required to take measures to publicize this withdrawal in terms of the law”, adding that Friday’s election with only one candidate was “an absurdity”.
Section 110 (3) of the Electoral Act provides that when no candidate receives more than 50% of the total votes cast, there has to be a second election featuring the top two candidates within 21 days from the date of announcement of results. As such, Tsvangirai said, “it would not make sense to expect a candidate from a presidential run-off election to give 21 days’ notice of his/her withdrawal where such election has to be held within 21 days anyway”.
The MDC leader also argued that “there have been no rules prescribed for the conduct of a presidential run-off election and in particular the notice period set for the withdrawal of candidature by a participant”.
“Accordingly, any candidate wishing to withdraw his candidature is free to do so at any time before such an election.”
But ZEC chair Chiweshe insisted the withdrawal was null.
“It was unanimously agreed that the withdrawal had inter alia been filed well out of time and that for that reason the withdrawal has no legal force or effect.
Accordingly, the Commission does not recognise the purported withdrawal.”
The ZLHR argued that the matter should have been “referred to a court of law for determination” before ZEC could make that decision.
“The election management body cannot simply state that the conditions exist and proceed unilaterally when clear facts supporting a disparate view have been put to it . . . and proceeding with an election, therefore could be argued to result in ZEC acting outside the boundaries of the law.”
Despite being among the first lawyers to say Tsvangirai could not withdraw because “candidature for the run-off or the second election is not a voluntary exercise, you give your consent when you contest the first election”, National Constitutional Assembly chairperson, Lovemore Madhuku on Thursday led civil society organisations in endorsing Tsvangirai’s pullout.
“The acts of brutality that have occurred over the last three months have made any semblance of a free and fair election impossible. We therefore urge the people of Zimbabwe not to vote,” says a civil society statement read by Madhuku.
The law, said ZLHR, only states that Tsvangirai is “eligible” for the run off as he received the highest number of votes, but it was “not mandatory” for him to contest.
UK-based Zimbabwean lawyer, Alex Magaisa, also argued that “eligibility does not mean that you must take part in the process”.
“It simply means you meet the necessary conditions but you can choose not to take part . . . eligibility does not make participation fixed and mandatory.”
Published in the front page of The Standard on 29 June 2008
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