ELECTORAL LAW

Electoral Systems

An election is a procedure whereby people choose public office holders such as representatives
in Parliament and heads of government. An election is not the only way of designating public
office holders. Other methods include hereditary succession and appointment. However,
elections are widely regarded as the best indicator of democracy. An election confers legitimacy.
It is a fundamental form of political participation by the people. The electoral process in any
country is determined by the electoral systems of that country. An electoral system may be
defined as a set of rules according to which voters may express their political preference and
according to which it is possible to convert voters into office holders. A vote is one thing, the
determination or the effect of that vote is a different thing. It is the electoral system which gives
the answer.

There are many electoral systems in the world. However, these maybe placed into two main
types – majority system and proportional representation system.

Majority System

In a majority system, it is the majority of votes cast which decide who wins the election. Its
major political aim is to produce a stable government. Under the majority system, the rule tries to
determine what a majority is. There are two types of majority systems – the plurality system and
absolute majority system.

1. Plurality System – characterized by winner-take-all, and is also generally known as first-

past-the-post.

2. Absolute Majority System – requires an absolute majority i.e. 50% + 1 vote. If an

absolute majority is not obtained, a special process is devised to attain it. The most
common process is to hold a second ballot which is restricted to fewer candidates
popularly known as a “run-off”

The majority system is mainly supported for the following perceived advantages,

a. Promotion of stable government by bringing about parliamentary majorities.

b. It enables voters to decide directly which political parties should form the government.

c. It increases the possibility of producing a clear winner

d. It reduces the influence of small parties thus preventing formation of political parties
based on racial or ethnic considerations.

The disadvantages include,

a. It leads to wastage of votes in that votes cast for the loser are completely lost.

b. It does not accurately reflect the wishes of the voter – there is in many cases a
discrepancy between votes cast and seats received.

c. It manufactures majorities – a party with less than 50% of the vote may get seats in
excess of 50% e.g. Blair in the 1997 U. K vote. Zimbabwe 1990 elections, ZANU PF got
147 seats out of 150 and 2 seats went to ZUM under Tekere and one seat went to ZANU
Ndonga. ZUM got 20% of the overall vote which were rewarded with 2 seats.

d. It benefits parties with a geographical concentration and prejudices those with scattered
support e.g. ZANU PF’s tendency to put seats in areas of their support in the delimitation
of constituencies.

Proportional Representation System

The essence of proportional representation is that the result of the election is determined by
the proportion of the votes cast to that which is obtained by each candidate or party. Its
objective is to ensure that the share of votes and of seats should correspond as nearly as is
possible so as to reflect as accurately as possible the existing social and political forces in the
country.

It advantages include,

a. It provides maximum representation of all opinions and interests.

b. It prevents manufactured majorities and expresses the country’s diversity.

c. It moves away from the winner-take-all approach and thus encouraging coalitions,
negotiating and compromises. The latter aspects are preferable to a winner-loser
situation.

d. It stimulates multi-partism.

e. It prevents the emergence of dominant political parties where the dominance is

manufactured – a dominance arising from an electoral system and not from electoral
support (1990 election of ZANU PF)

f. It a useful technique for protecting minorities.

g. It encourages voters to participate in the elections in the sure knowledge that each vote
has equal value.

Disadvantages include,
 a. It creates weak government, by making it difficult to achieve an absolute majority
thereby requiring coalitions.

b. It encourages proliferation of political parties.

c. It reduces the relationship between the voter and the representative.

d. Some systems of proportional representation are too complicated for voters to

understand.

There are a wide variety of proportional representation systems. Two main ones have been
identified namely,

(i) The single transferable vote system – the voter indicates choice by writing 1,2,3,4 or
5. To win a candidate must attain a specific quota. If the quota is obtained by the first
preferences the candidate is elected. The votes of that candidate are passed on to the
second preference, etc.

(ii) The list system – each party provides a list of its candidates in order of preference. If
it wins 30% of the votes e.g. 40 seats the top 40 on the list are elected e.g. in South
Africa where each party produces a list of 400.

The following considerations should be taken into account.

1. Representation – the system must achieve clear representation.

2. Stable and effective government

3. Voter participation

4. Simplicity – should be simple for both voters and election administrators

5. Legitimacy – the community should accept the results

Electoral System in Zimbabwe

Zimbabwe has the majority system. For parliamentary elections it is the winner-takes-all
(Section 66 of the Electoral Act). In a presidential election it is the absolute majority system that
is adopted (Section 110 of the Electoral Act). If no candidate obtains a majority, a second
election must be held within 21 days between the candidate who received the highest and the
next highest number of votes. Proportional representation has been consistently rejected by the
political authorities in Zimbabwe. In Africa, it is only in South Africa that proportional
representation is practical. However, every reform proposal has raised the card of proportional
representation.
The majority system provided for in a Presidential system is not in the constitution but is in the
Electoral Act. This means that it can be changed by Parliament. Section 110 provides that where
there are two or more candidates and “no candidate receives a majority of the total number of
valid votes cast, a second election should be held within 21 days after the previous election.”
Although this provision does not define the word “majority” the problem is solved by Section
110(4) which says that in the second election only “the two candidates who received the highest
and next highest numbers of valid votes cast at the previous election shall be eligible to contest
the election.” The majority is therefore 50% + 1. It avoids the problem which arose in Malawi.

Gwanda Chakuamba v. Attorney-General & Malawi Electoral Commission MSCA 20-00

The applicant sought an order declaring unlawful the election of President Muluzi on the
basis that he had not obtained a majority. The commission had declared the President duly
elected after he obtained a majority of the votes cast. The opposition claimed that the law
required the President to have a majority of the electorate and this had to take into account
even people who had not voted as long as they were on the voters roll. Section 80(2) of the
Malawian constitution provided as follows “The President shall be elected by a majority of the
electorate through direct, equal and universal suffrage.” The lawyers for the opposition
“hired from the U.K” argued that the use of the word electorate was significant. It meant
those entitled to vote. For its part the Malawi Electoral Commission meant those who had
actually voted. The court ruled in favour of the MEC and upheld the declaration that the
President had been validly elected. They held that majority meant 50% + 1 and the word
electorate had to be restricted to those persons who had actually exercised that right by voting.
It refers to those voting and not those entitled to vote.

In terms of Zimbabwean law the emphasis is on valid votes cast does not only disregard that part
of the electorate which has not voted but also disregards that potion which participates but with
an invalid, “so called Spoilt ballots”. In the 2008 Presidential election the official results were as
follows,

Morgan Tsvangirai – 47.9%

Robert Mugabe – 43.2%

Simba Makoni – 8.3%

Relton Tangwena – 0.6%

The chief elections officer declared that no candidate received a majority. The General Notice 71
of 2008 read as follows “Since no candidate received a majority of the valid votes cast, a second
election will be held between the candidates who received the highest number of votes, namely,
Tsvangirayi Morgan of MDC(T) party and Mugabe Robert Gabriel of ZANU(PF) party.” The
notice did not set the date for the second election. Conveniently the two candidates were
described as having received “the highest number of votes.” There was no reference to the
highest and next highest. These results were published more that 21 days after the conduct of the
poll. Is the second election supposed to be held within 21 days from the date of the election or
within 21 days of the announcement of results? For 2008 this question became academic as 21
days from the date of the election had already been passed by the time the results were
announced. ZEC did not want to hold the second election even within 21 days of the
announcement of results. It then relied on Section 192(5) of the Act and extended the period of
21 days to 90 days counted from the date of the announcement of the results. The argument
which arose was whether ZEC had the power to do so. This is a debatable point as the powers of
delegation by Parliament in Zimbabwe are wider than in most democracies. The powers given to
ZEC by Section 192(5) of the Act used to be exercised by the President under Section 158. In
fact Section 192 is a reproduction of Section 158 but with ZEC taking over the role of the
President under the old law. The elections were then set for 27 June 2008. Tsvangirai withdrew
from the election on 22 June sighting a brutal campaign by the other candidate. A legal issue
arose – what was the effect of the withdrawal? In terms of Section 110 candidates for the second
election are selected by the law. There are no nomination papers. A withdrawal does not
invalidate the second election except at the instance of a court. What is unclear is whether the
election proceeds or the remaining candidate is simply declared the winner. The declaration of a
winner only arises when there is a nomination process. In the absence of a nomination process it
is arguable that the chief elections officer may declare the remaining candidate to be duly
elected. The better view of the law appears to be that the election goes ahead.

Zimbabwe’s electoral law does not have adequate provisions for a second election. It was grossly
unprepared for the situation in 2008.

RIGHT TO VOTE

The right to vote lies at the heart of any democratic electoral system. It has been said, for
instance, “All forms of democratic systems are founded upon the right to vote. Without the right
democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of a
democracy. It is a proud badge of freedom.”

(See Haig v. Canada 16 CRR 193)

Unlike in many other countries Zimbabwe’s bill of rights does not enshrine a right to vote. The
right to vote is provided for outside the bill of rights. Schedule 3 of the constitution sets out
circumstances under which the right to vote exists. Section 58 of the constitution sets out the
framework as follows, “The qualifications and disqualifications for registration as a voter and for
voting at elections shall be prescribed in Schedule 3 and subject, thereto, by the electoral law.”

In Schedule 3 there is provision for registration as a voter. To be registered as a voter a person

must either be a citizen of Zimbabwe who is 18 years or above or a person who is regarded as a
permanent resident since 1985. In addition the person must satisfy the residence qualification in
the electoral act. A person must be resident in a given constituency to be able to vote. This is the
case even in a Presidential election were all people vote for the President.

Registrar General of the Elections & Ors v. Morgan Tsvangirai 2002 (1) ZLR 185

Morgan Tsvangirai, a presidential candidate representing the MDC made an application to

the High Court seeking an order compelling the Registrar-General to prepare a common role
for a presidential election with the names of all persons entitled to vote, without referring to
the specific constituencies. The MDC candidate contended that proof of residence in a
particular constituency was irrelevant for the presidential election. The Registrar-General
agued that one had to prove qualification to be on the roll of a given constituency. The
Supreme Court agreed with the Registrar-General and held that the common roll was a sum
total of the various constituency rolls. In the 2002 election, the Registrar-General had directed
every voter to vote in their given constituencies for the President. A voter outside their
constituency on voting day had no right to vote. Tsvangirai challenged this in the Supreme
Court and his argument was rejected. It set aside Makarau J’s reasoning in the High Court.

The approach of Zimbabwe on this point is unusual. Even in the rejected 2000 draft constitution
there was no right to vote in the bill of rights but in Section 60.

Madzingo & Ors v. Minister of Justice 2005 (1) ZLR 171 (SC)

The applicants were all voters duly registered as such in their constituencies. At the time of
the application they were all resident and employed in the U.K. They were unable to cast their
votes personally in their constituencies. They sought an order for the electoral authorities to
put in place mechanisms for them to vote in the UK. Predictably, the authorities refused. The
Applicants claimed an infringement of Section 20 of the constitution which guarantees
freedom of expression. The judgement was delivered by Malaba JA. The Supreme Court
dismissed the application, Malaba JA had this to say, “Notwithstanding, its importance to
democracy, the right to vote is, anomalously not guaranteed as a fundamental human right.”
He went further to hold that the opposition was ill conceived that freedom of expression under
the Zimbabwean constitution includes the right the vote.

INSTITUTIONS INVOLVED IN THE ELECTORAL PROCESS

The main institution is the Zimbabwe Electoral Commission (ZEC) which has taken over the
previous roles of the Delimination Commission and the Electoral Supervisory Commission. The
functions of ZEC are now provided for in Section 100B which was inserted by amendment 19.
Before that ZEC was introduced by amendment 17. Its functions are to conduct the elections
“efficiently, fairly, transparently and in accordance with the law”. It is required to be
independent. The chairperson of the commission is appointed by the President after consultations
with the Judicial Services Commission and Parliament. Eight other members are appointed by
the President from a list of not “fewer than twelve nominees” submitted by the committee of
Parliament. In the 2008 Presidential election ZEC could not announce election results for up to 6
weeks. When results were not announced after 6 days the MDC rushed to the High Court to
compel ZEC to announce the results.

MDC & Morgan Tsvangirai v. Chairperson of the Zimbabwe Electoral Commission & Ors

It was an unnumbered urgent chamber application. The matter was heard by Uchena J. The
first hearing was on 5 April, 7 days after the election. Judgement was delivered on 14 April, 9
days after the hearing and 16days after the election with results not still announced. ZEC’s
first argument was that the court had no jurisdiction because ZEC was an independent body –
this was rejected by the court. The second argument was that the matter was not urgent – this
was again dismissed. The third argument was on the merits – ZEC argued that the verification
process had to be done efficiently and this required accuracy. The court had the view that 6
days amounted to undue delay. However, the court considered ZEC’s explanation of delay.
The Chairperson of the commission claimed that ZEC had received complaints which
required it to consider recounting in some constituencies. The decision whether to recount or
not was at its absolute discretion. The court accepted that explanation and held that it had no
jurisdiction to inquire into the decision, “I should therefore find that the reason preferred by
the respondent for their failure to timeously announce the Presidential result 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.” The application was therefore dismissed.

CHALLENGING ELECTION RESULTS

The Act now creates an Electoral Court for the speedy resolution of electoral disputes. A number
of cases have now held that violence constitutes a serious breach of the principles enshrined in
the act and justify the setting aside of an election.

Morgan Tsvangirai v. Manyonda (Buhera North Election Petition) 2001 (1) ZLR 295

Hurungwe East Election Petition 2001 (1) ZLR 285

Mutoko South Election Petition 2001 (1) ZLR 208

Electoral petitions have been delayed and most have not achieved any results either because of
delays or because of appeals. The most successful was Margaret Dongo v. Vivian Mwashita
1995 (2) ZLR 228. Some challenges have succeeded at the instance of a disqualified candidate
(See Roy Bennett v. Constituency Elections Officer For Chimanimani 2005 (1) ZLR 258
where the court held that Bennett’s conviction by Parliament for contempt was not a criminal
conviction for purposes of schedule 3). Others have failed.

Kombai v. Registrar-General 2001 (1) ZLR 256

Kombai wanted to stand for the post of Executive Mayor of Gweru. The qualification for a
mayor set out in the act required a general certificate of education with passes in at least 5
subjects including English at Ordinary Level and either 2 subjects at Advanced Level or a Post-
Ordinary Level qualification in any profession. Kombai did not have an Ordinary Level
Certificate. He had a Standard 6 pass, a two year Primary Teachers (lower) and a Locomotive
Driver’s License (steam) certificate. Kombai contended that Standard 6 and a two year Teacher’s
Certificate fulfilled the Ordinary Level requirement whilst the Locomotive Driver’s License
fulfilled the two Advanced Level/Post K Ordinary Level qualifications. He was disqualified.