I join the nation in passing condolences to the families of the people who lost their lives needlessly in the violent demonstrations that disgraced Harare on Wednesday afternoon.
guest column; MIRIAM T MAJOME
The ensuing shooting of unarmed civilians is roundly condemned and it is hoped that our country will not live to see such a dark day again. It is a well-known fact that in any political contest, there will be heated disputes, particularly in a hotly contested national election such as that which took place on Monday, July 30. The law makers envisaged this and catered for the eventuality of disputes and their resolution at length and detail in the Electoral Act.
There is never any need to take to the streets to protest elections as there are remedies within the law for resolving electoral disputes. We shall look at the Electoral Court and explain its functions and how to approach it if candidates feel aggrieved. There are also criminal remedies if there has been a breach of electoral laws.
Purpose of the court
The Electoral Court is established in terms of Section 161 of the Electoral Act. Judges of the High Court hear and determine cases and are assisted by one or two qualified assessors in an advisory capacity.
Naturally, there is a flurry of cases before the court currently because this is a very busy period. This is positive as it shows that politicians are aware of the court and that it is the way to resolve disputes as opposed to violence on the streets. With enough convincing evidence before it, even stolen votes can be nullified and the wronged person given justice. Disputes are actually finalised while the street has no finality.
The Electoral Court has exclusive jurisdiction to hear appeals, applications and petitions and to review decisions made by Zec or any other person or any decisions made in terms of the Act.
The Electoral Court has the authority to deal with all matters to do with elections, but does not just entertain election disputes. It hears all cases from nomination of candidates, voter and candidate conduct, media coverage, electoral fraud, voter and candidate intimidation; political violence and all things elections-related. The only exception is criminal matters. Criminal acts should be reported to the police and dealt with by the criminal court. Judgments from the Electoral Court have the same effect and force as the High Court.
Petitions are lodged by candidates who took part in an election if they feel aggrieved by anything to do with the conduct of that election. Petitions are based on complaints over undue returns or undue election of a Member of Parliament for lack of qualifying for the seat, malpractice or any other irregularity committed. Irregularities are varied and include any of a variety of malpractices like intimidation, inciting violence, electoral fraud, poll misconduct, vote buying etc.
The time to lodge petitions is very limited as they must be filed within 14 days after the end of the period of the election. This is somewhat vague as the end of an election period is not defined. There are two dates election results are announced and the winners declared. The first time is at the constituency elections centre and the second time is when the results are announced at national level at the national elections centre.
Results at national level are announced as they trickle in over a number of days from the various constituencies. Candidates need to be diligent so that they do not leave it until too late. It recommended to benchmark the date of lodging the petition with the date the results were first announced at constituency level.
Payment of security deposit
The petitioner will be required to pay a security deposit within seven days and the amount is determined by the Registrar. The security deposit is a guarantee to the other party for their legal costs in responding to the petition and attendances in pursuit of the petition.
The deposit also pays costs incurred by witnesses called to court. The security deposit requirement also serves the purpose of sifting out chancers to leave genuine petitioners who are serious about pursuing their case and seeking justice.
The respondent must be served with the petition and given adequate time to respond to the charges and allegations within the time frame allowed by the rules of the Electoral Court.
Reversal of election
The Electoral Court hears the matter in an open court, including evidence and defence of the parties and witnesses. The petitioner is expected to provide the court with the evidence of the allegations of the electoral irregularities in order to try and convince it to reverse the appointment of the rival candidate, that is the respondent.
Upon hearing all the patties and assessing the evidence before it, the court can make only one of two decisions. It can decide to uphold the election and the appointment of the elected person or it can overturn the election altogether.
If the election is overturned, the court will cause the pronouncement of the seat as vacant. On the other hand, the court can also cause the declaration of the petitioner as the duly elected member of the seat.
The Electoral Court will inform the Commission and the President of the Senate and the Speaker of the National House Assembly of the decision to overturn the result. The petitioner is then declared as having been elected into the disputed seat. If the court does not appoint the petitioner to replace the respondent, it will cause the seat to be declared vacant.
The determination is communicated to the Speaker of Parliament and President of the Senate and there will have to be a by election to fill the vacant seat. This is much more effective, tangible and progressive than being disorderly and running riot in the streets.