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Trust Maanda
Post Correspondent
THE declaration of a candidate who has received more than half the number of votes cast to be duly elected as President of the Republic of Zimbabwe is, in terms of the law, made not later than five days after the polling day or the last polling day, as the case may be, in the Presidential election concerned.
In a case where a recount has been ordered in terms of Section 67A of the Electoral Act, the declaration must be made not later than five days after completion of the recount.
A declaration by the Zimbabwe Electoral Commission (ZEC) that a candidate who received more than half the number of votes cast has been duly elected as President of the Republic of Zimbabwe is final.
The finality of the declaration is subject to reversal by an order, on application by a losing and aggrieved candidate, that such a declaration be set aside or that the proceedings relating to the Presidential election were void.
If someone alleges a miscount, then he or she has Section 67A of the Act to utilise.
That section makes provision for the recounting of votes in one or more of the polling stations in a constituency.
Any political party or candidate that contested the election in a ward or constituency may request ZEC in writing to conduct a recount of votes.
The request must state specifically the number of votes believed to have been miscounted and how the miscount may have occurred.
It must state how the result of the election has been affected by the alleged miscount.
The remedies of that section are available for utilisation within 48 hours after the commission has declared a candidate to be duly elected.
The declaration of the result of a Presidential election in terms of Section 110(3)(f)(ii) of the Electoral Act gives rise to a presumption of validity of the election result.
The election is presumed to have been conducted regularly.
Anyone who wishes to challenge the election should rebut the presumption.
The burden of proof of the allegations on which the relief to upset an election is sought is on the person who alleges.
One who alleges a fact on the basis of which his or her cause of action bears the onus of proving that fact.
That person must prove to the satisfaction of the court that the irregularities he or she alleges are as a matter of fact.
An applicant should produce sufficient and clear evidence to establish the grounds on which he or she seeks relief to entitle him or her to the granting of the relief sought.
It is not enough that he or she is aggrieved by the outcome of an election.
He or she should show that the irregularities were of such a nature that they either materially affected the result or substantially undermined the electoral process, thereby rendering ZEC unable to deliver a free, fair and credible Presidential election.
The burden is on the aggrieved party to prove non-compliance with electoral law, and to show that the non-compliance affected the results of the election.
It is not enough to rely on generalised allegations of irregularities.
Polling stations returns are obtainable in terms of the provisions of Section 64(1) (d1) of the Act.
In terms of that section, a presiding officer displays the completed polling-station return to those present and afford each candidate or his or her election agent the opportunity to append their signatures and provide them with a copy of the completed polling-station return.
If voter fraud is alleged, a petitioner ought to obtain and produce authentic completed V11 forms collected from his or her political party’s election agents and compare that to the figures announced by ZEC.
The petitioner has to place before the court clear, sufficient, direct and credible evidence to prove the irregularities he or she alleges.
He or she should prove the allegation of electoral malpractices he levels against the declared winner.
Once he or she proves the irregularities, it becomes necessary in the circumstances to answer the question whether the alleged irregularities affected the result of the election.
It is an international standard that an election is not set aside merely on the basis that an irregularity occurred.
It is also not enough that a losing candidate is aggrieved by the outcome of an election.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity.He can be reached at +263 772432646.
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