Election Watch 19-2023 - Withdrawal of Presidential Candidate


Withdrawal of Presidential Candidate

Mr Douglas Mwonzora, a presidential candidate standing for the MDC-T party, has said he wants to withdraw from the election and has written to the Zimbabwe Electoral Commission [ZEC] requesting the Commission to remove his name from the list of candidates.  ZEC has refused to comply, saying it is too late to remove his name and citing section 107(1) of the Electoral Act, which reads:

“(1)  A nominated candidate for election as President may, by notice in writing addressed to the Chief Elections Officer, withdraw his or her candidature at any time before twenty-one days from the day … on which the poll in an election to the office of President is to be taken.”

There is less than a fortnight left until polling day on the 23rd August so it seemed that Mr Mwonzora is out of time in trying to withdraw.

Actually, he isn’t.

There is a rule of law expressed in the Latin maxim cessante ratione legis cessat et ipsa lex, which means that if the reason for a law ceases to exist then the law itself falls away or ceases to apply.  The reason for section 107(1) is fairly obvious:  a candidate should not be allowed to withdraw from an election after ballot papers have been printed because either the ballot papers will have to be reprinted at extra expense or, if they are not and the candidate’s name is left on them, ZEC will have to take steps to inform voters that the candidate has withdrawn and they should not vote for him or her.

In the particular circumstances of this election, that reason does not apply.  There have been so many challenges to the nomination process, and the courts have taken so long to finalise them, that ZEC has been unable to print the ballot papers – we know this because ZEC’s legal representative said so during preliminary proceedings before Mr Kasukuwere’s application to the Constitutional Court was heard.

Since the reason for section 107(1) does not apply, the section does not apply either and should not be invoked to prevent Mr Mwonzora from withdrawing.

ZEC should accept Mr Mwonzora’s withdrawal.  If his name continues to appear on the presidential ballot papers, voters may vote for him in the mistaken belief that he still wants to be elected.  If they do vote for him they will be voting for a candidate who has renounced the election.  Their votes will be as futile as if they had spoiled their papers.

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