COLUMN: DR ALEX T. MAGAISA
Dr Alex T. Magaisa
On April 4, 2008, the MDC made an urgent application at the High Court, to compel the ZEC to release the results of the Presidential election held on March 29, 2008.
The matter came before Justice Uchena and with it the whole weight of the key election rested on his shoulders.
Justice Uchena initially acknowledged the urgency of the matter of announcing the results. He said at page 11, “In the absence of an explanation the delay between 29 March 2008 and 4 April 2008 seems to be unjustifiable and points to a lack of efficiency [on the part of the ZEC]”.
Ironically, notwithstanding his acknowledgement of urgency, it took the learned judge ten days to deal with the matter and deliver judgment on April 14, 2008. That is four days more than the delay initially complained of. As if that was not enough, the learned judge dismissed the application with costs.
A lot was said in the judgment but everything came down to one crucial point: the power and discretion of the ZEC to order a recount hence necessitating a delay in the announcement of the result of the presidential election.
The ZEC explained that the delay was caused by the complaints that had been raised by a party, presumably Zanu PF, under Section 67A of the Electoral Act in relation to counting of the votes.
Section 67A – Fish Out of Water?
The judge had to deal with the important question of whether S. 67A of the Electoral Act was applicable to the Presidential election because it is a provision that specifically deals with parliamentary elections.
After considering the arguments, the judge decided that it applied because it was not specifically excluded by Section 112 of the Electoral Act as is the case with surrounding and related provisions. In this case the judge’s hands appeared to be tied because the statute does not exclude S. 67A from application to Presidential elections and he could not legislate, even if he thought that in this case it was like fish out of water.
The 48-Hour Window
Nevertheless, S. 67A(1) on which the ZEC was relying requires that the recount may be demanded by a party/candidate within 48 hours of the announcement of the result. The rationale is clear: one cannot demand a recount unless he knows the result.
The judge found, correctly it has to be said, that S. 67A(1) could not apply in this case because a request could only have been made within 48 hours after the declaration of the result of the presidential election and clearly this had (and still has) not been done.
The matter could have ended at that point because this was the erroneous basis on which the ZEC relied for the delay. This was not a proper legal basis for delaying the announcement of the results and the judge should have dismissed the defence on that basis.
ZEC Discretion to Order a Recount
But the judge went further to consider another provision, namely, S. 67A(4) and found that the ZEC has a very wide discretion to order a recount ‘on its own initiative’. It is on the interpretation of this provision that the Judge dismissed the MDC application.
The judge stated that the ZEC could order the recount ‘on its own initiative’. Having failed to place the matter under S. 67A(1) because there had been no announcement to trigger the 48-hour window, the matter was, therefore, placed under this catch-all provision.
You have to wonder, however, why the legislature made provision for the 48-hour window under S. 67A(1) if the ZEC can receive complaints at any point (even before announcement of the result) which it can then use as a basis for delaying the announcement, allegedly ‘on its own initiative’ under S. 67A(4). The judge’s interpretation of S.67A(4) in effect makes S.67A(1) redundant which cannot be what the legislature intended when it enacted it.
In any event, it seems fairly clear from the ZEC explanation that the decision to perform a recount is not ‘on its own initiative’ but has been prompted by the alleged complaints by, presumably Zanu PF. Curiously, the judge makes no specific enquiry on this matter except to conclude that the ZEC was entitled to act ‘on its own initiative’.
Surely, in drafting these two separate provisions, Parliament intended there to be a difference between the ZEC acting ‘on its own initiative’ under S. 67A(4) and acting on the basis of a complaint under S. 67A(1)? But in this case, the judge has read the complaints supposedly made under S. 67A(1) as if they apply equally where the ZEC acts ‘on its own initiative’ under S. 67A(4).
Further, Justice Uchena states that S. 67A(4) does not state the time when the ZEC may order a recount ‘on its own initiative’. This is interpreted as granting a wide discretion to the ZEC.
But, with respect, it is incorrect to read this provision in isolation from the rest of the provisions relating to elections. In particular, there is a clear Constitutional standard for judging the conduct of the ZEC which is to be found under Section 64(1) of the Constitution and the judge had correctly acknowledged this in the earlier part of the judgment.
It states that the ZEC must ensure that elections are conducted ‘efficiently, freely, fairly, transparently and in accordance with the law’. Having accepted that Constitutional standard, surely, the conduct of the ZEC in using its discretion must be measured accordingly.
But there is another important shortcoming in the judgment. It is that the judge appears to give way too much discretion to the ZEC, notwithstanding that the statute itself limits the extent of such discretion. It goes without saying that in any case discretion must be exercised reasonably.
But in this case the provision states clearly that in deciding whether or not to order a recount the ZEC must have ‘reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election’. It is clear that this provision imports a clear standard of reasonableness in the exercise of the ZEC discretion.
On the contrary, the judge states at page 14, that, “It [ZEC] simply should have grounds for believing that the votes were miscounted” (emphasis added). With respect, it is incorrect to omit the important factor of reasonableness stated in the law because it makes a big difference to the exercise of discretion. “Grounds” and “Reasonable Grounds” are two different standards at law and the learned judge should know this. The judge refers to ‘grounds’, contrary to the statute’s wording which requires there to be ‘reasonable grounds’ for the ZEC decision.
The standard of reasonableness means that the ZEC must be objective in its conduct and, crucially, it provides a basis upon which its conduct may be challenged. In other words, the ZEC cannot get away with giving flimsy and unreasonable basis for ordering a recount. If the legislature intended it to be subjective reasons that could not be challenged for their unreasonableness, it would not have used the term ‘reasonable grounds’ as it did. The judge appears to deal with this as if the ZEC only needs to have subjective grounds as opposed to an objective basis for its decision.
Appealability of the ZEC Decision
In order to bolster the view that the ZEC has wide discretion on this matter, the judge refers to S. 67A(7) of the Electoral Act which states that the ZEC decision for a recount is not subject to an appeal.
On the face of it, there must, surely, be strong reservations as to the constitutionality of this provision, given that it is inconsistent with the provisions that require the ZEC to act reasonably, a ground upon which its acts or omissions may, surely, be challenged. What if it does not act reasonably and continues to delay the announcement because of a purported need to count and re-count the votes ad nauseam? Surely, that has to be and can be challenged for lacking reasonableness.
In any event, as shown above, the Constitutional standard requires the ZEC to act ‘efficiently, freely, fairly, transparently and in accordance with the law’. That Constitutional test matters because the Constitution is the supreme law of the land and, surely, the ZEC is required to act accordingly. If it fails, the ZEC can be challenged notwithstanding the Electoral Act provision preventing appeals. To talk of a very wide discretion appears to be giving undue weight to this Electoral Act provision at the expense of the general constitutional context in which the ZEC operates and is expected to act.
In any event, the judge could surely have taken into account that notwithstanding the no-appeal provision, the decision could surely be subject to review on the manner in which the discretion is exercised. Parliament is very clear in the statute that it must meet the reasonableness standard.
It is difficult to understand how the learned judge came to his conclusion given his positive findings throughout in favour of the applicant. Perhaps it is our collective folly to have expected too much of one man. Perhaps this was a load that one man could have only carried so far and when it became too much he just had to offload it somewhere. Just a pity that he left it in the wilderness. Is there a way out of this?
I am not sure the judiciary has the wheels to carry justice in these political matters. As the famed American Judge Learned Hand said many years ago, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it ..."
Magaisa is based at Kent Law School, UK and can be contacted at firstname.lastname@example.org
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