ELECTION WATCH 40/2018
15th August 2018
Challenging Council and Parliamentary Election Results
Remedies Open to Dissatisfied National Assembly and Local Council Candidates
Challenges to National Assembly and local authority election results are matters for the Electoral Court alone. If an unsuccessful candidate believes that he or she should have won, or that the election in the constituency/ward was so flawed that it should be nullified and re-run, that candidate has a limited choice of remedies:
- a request to the Zimbabwe Electoral Commission [ZEC] for a recount where the only complaint is that votes were miscounted
Note: the time for making such a request has passed so it will not be dealt with in this bulletin
- an election petition to the Electoral Court in the case of other complaints.
In both cases, there are strict time-limits to be observed and procedures to be followed, and failure may result in rejection. Time-limits are particularly important: our courts have held that time-limits in electoral cases cannot be extended.
Election Petitions to Electoral Court
14-day deadline for lodging election petition
An election petition challenging the election of a member of the National Assembly in a general election must be lodged with the Electoral Court within 14 days after the declaration of the results for the last constituency in the election.
An election petition challenging the election of a councillor in a general election must be lodged with the Electoral Court within 14 days after the declaration of the results for the last ward of the local authority concerned.
This is the effect of section 168(2) of the Electoral Act.
Who can lodge an election petition?
Only an unsuccessful candidate for the parliamentary or council seat concerned may lodge an election petition [Electoral Act, section 167]. Political parties and members of the public cannot do so.
On what grounds can an election petition be based?
Section 167 of the Electoral Act allows an election petition to complain that the election was not valid “by reason of want of qualification, disqualification, electoral malpractice, irregularity or any other cause whatsoever”. This is very widely phrased but the circumstances in which the Electoral Court can set aside an election are more limited, as will be pointed out later in this bulletin.
There is a definition of electoral malpractice in section 4 of the Electoral Act:
“electoral malpractice” means an intimidatory practice, corrupt practice, illegal practice or other offence in terms of Part XX [of the Act]
- Intimidatory practices include intimidating people to vote for a particular candidate or not to vote, or compelling people to attend political meetings or other events; taking anyone’s identity documents to obstruct voting; and [a very recent addition to the list by the Electoral Amendment Act, 6/2018] persuading or attempting to persuade people that it will be possible to discover who they have voted for in an election
- Corrupt practices include bribery, using undue influence to induce people to vote or not to vote, and impersonating voters or casting more than one vote in an election
- Illegal practices include preventing the holding of lawful political meetings; destroying, defacing or removing political posters; conducting political activities within 300 metres of a polling station on polling day; obstructing voters from voting either at a polling station or on their way to or from a polling station.
Service of notice on successful candidate
Within 10 days after a petition is lodged, written notice of it must be served on the person whose election is challenged, either on him or her in person or by leaving it at his or her usual or last known dwelling or place of business [section 169 of the Electoral Act]. In previous elections many petitions were summarily dismissed for being served late or at the headquarters of the successful candidate’s political party.
Petitioner must give security for the respondent’s costs
Within seven days after lodging an election petition the petitioner must give security for the respondent’s costs. The amount of security is fixed by the Registrar of the court and, according to section 168 of the Electoral Act, must be not less than an amount prescribed by ZEC in terms of section 192 of the Act after consultation with the Chief Justice. It can be more than this sum but this can only be fixed by the Registrar of the Electoral court
The amount prescribed in section 28 of the Electoral Regulations is US $500. Six days ago the Chief Justice issued a Practice Direction in which he announced that the prescribed amount was now to be US $2 000 for National Assembly election petitions and US $1 000 for local authority petitions. The Practice Direction is probably illegal because the amounts have not been prescribed in regulations made by ZEC under section 192 of the Electoral Act, as they should have been. In any event the Direction probably does not apply to current petitions because section 157(5) of the Constitution states that changes to laws relating to elections do not apply to an election once it has been called. Whatever its validity the timing of the Practice Direction – issued just before election petitions are due to be lodged – is most unfortunate.
Procedure and evidence
The procedure to be followed in election petitions is laid down in section 171 of the Electoral Act and, for any matter not specifically covered in that section, is the same as the procedure for court applications under the High Court Rules.
The Electoral (Applications, Appeals and Petitions) Rules, 1995 (SI 74A/1995) should be complied with as well. Although they were made before the current Electoral Act was enacted, a judge of the Electoral Court in 2013 decided that they remained in force, and his judgment was followed in subsequent cases. The judgment is available on the Veritas website [link]. Veritas lobbied the Minister of Justice to update and simplify the procedural rules early this year. But this was not done.
Electoral Court’s Limited Power to Set Aside Election
Although the Electoral Act allows an election petition to seek the setting aside of an election “for any … cause whatsoever”, the Electoral Act makes it clear that not every malpractice will result in an election result being changed:
- Under section 155 of the Act, the Electoral Court can set aside an election on the ground of electoral malpractice only if it was committed with the knowledge or consent of the successful candidate or his or her agents, and if the malpractice was such as to have materially affected the outcome of the election.
- Section 156 of the Act reinforces this by stating that if malpractices were committed by a candidate’s agents, but neither the candidate nor his or her chief election agent sanctioned them and took reasonable precautions to prevent them, and if the malpractices were trivial, unimportant and limited, then the election cannot be set aside.
- Under section 177 of the Act, the Electoral Court can set aside an election on the ground of mistake or non-compliance with the Act only if:
- the election was not conducted in accordance with the principles laid down in the Act, and
- the mistake or non-compliance affected the result of the election.
It is for the petitioner, of course, to prove both these things.
Despite what is said in the Electoral Act, the Constitution may have expanded the grounds on which elections can be set aside. Sections 155 and 156 of the Constitution lay down principles by which elections must be conducted. Section 67 gives citizens the right to free, fair and regular elections. Elections which are not free or fair, or which violate the principles laid down in the Constitution, are arguably not elections for the purpose of the Constitution and are void no matter what the Electoral Act may say. This was the line adopted by the Supreme Court of Kenya in a constitutional case decided last year. It is to be hoped that our courts may adopt a similar approach.
Time Limits for Deciding Election Petitions
Every election petition must be decided by the Electoral Court within six months of its presentation [Electoral Act, section 182].
Appeals against Electoral Court decisions
The Electoral Court’s decision on a question of fact is final and is not subject to appeal. But its decision on questions of law may be taken on appeal to the Supreme Court [Electoral Act, section 172].
An appeal to the Supreme Court must be decided within three months of the lodging of the appeal [this period was reduced from the previous six months by the Electoral Amendment Act, 6/2018].
The new section 182(3) of the Electoral Act empowers the Judge President of the High Court and the Chief Justice to give directions as to the filing of documents and the hearing of evidence, to ensure that the Electoral Court and Supreme Court meet these time-limits for deciding petitions and appeals.
The Electoral Court and its judges
The Electoral Court is a division of the High Court [Electoral Act, section 161(1) as enacted by the recent Electoral Amendment Act, 6/2018]. Its judges are High Court judges assigned by the Chief Justice.
Note: For the purposes of the recent general election, the Chief Justice appointed all 35 High Court judges, including Judge President Chiweshe, to be judges of the Electoral Court from the 8th June to the 31st December 2018: see General Notice 390/2018 [link]. So there will be Electoral Court judges available to hear election petitions lodged at any of the four seats of the High Court – Harare, Bulawayo, Masvingo and Mutare.
An Electoral Court judge may sit alone, or in a particular case ask for the assistance of two assessors appointed by the Registrar of the Electoral Court from a panel of at least ten persons compiled by the Chief Justice and the Judge President. One of the two assessors in any case must be a woman [an amendment made by the Electoral Amendment Act, 6/2018]. Assessors are advisory only, meaning that – unlike assessors in High Court criminal trials – they have no say in the court’s decision.
Importance of Using an Updated Version of the Electoral Act
It will have been obvious to everyone reading this bulletin that anyone involved in bringing an election petition should use an updated version of the Electoral Act that includes the amendments made by the Electoral Amendment Act, 6/2018. An updated version of the Act is available for downloading on the Veritas website [link]. Also available, if needed, is the text of the Electoral Amendment Act as a separate document [link].