1 zimbabwe election support network [zesn] - Nehanda Radio

Legality of the 27June Run- Off Election Date
According to the presidential results released on 2 May 2008 by the ZEC, no candidate
achieved an absolute majority of the votes cast. Section 110 [3] of the Electoral Act [Chapter
2:13] stipulates that in such circumstances a run off election “shall be held within 21 days after
the previous election”. ZEC however delayed the run off election until June 2008 purporting to
be doing so in terms of section 192[5] of the Electoral Act and by that delay extended the
retention of power by President.
There have been different interpretations of the section of the Act where it is stated that “ a
second election shall be held within twenty-one days after the previous election” with some
[including the MDC] arguing that the “previous election day” refers to the 29 March 2008
while others [ ZEC, Government and ZANU PF] interpret it as May 2 , that is, the day when
presidential results were released.
Statutory Instrument 73A/2008 gazetted by ZEC on 15 May 2008 made provision for the
Presidential Run-Off Election to be held within 90 days of 2 May [the day of the declaration of
the Presidential Election results] implying that the run –off would have to be held on or before
31 July 2008.
On 16 May, through Statutory Instrument 78, ZEC also announced that the run –off would take
place on 27 June 2008 appearing to have invoked the powers given to it by the section of the
Electoral Act read with section 195 [5] [a] thereof in order to extend the 21 day period for the
runoff stipulated by section 110[3] of the Electoral Act. ZEC announced the dates through a
statutory instrument which it described as the Electoral [Alteration of sections 39 [20][b] and
110[3] of the Electoral Act] Notice published in the Government Extraordinary of 15 May 2008.
The regulations were reportedly published with the approval of the Minister of Justice, Legal
and Parliamentary Affairs.
However analysis of the Electoral Act suggests that ZEC has no legal mandate to change the
date of elections as its powers under section 192 appear regulatory in nature. By publication of
Statutory Instrument 73A [extending the period from 21 days to 9 days], ZEC effectively
amended or side-stepped the terms of section 110[3] which state that “a second election shall
be held within a period of twenty-one days”. It is further noted that Statutory Instrument 73A
reportedly obliges that a second election be held within 90 days “from the date of the
announcement of the results of the first poll of the election of a President”.
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