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Trust Maanda
Post Correspondent
WITHIN 48 hours of declaring a winner, any political party or candidate that contested the election in the ward, constituency or presidential election concerned may request the Zimbabwe Electoral Commission to conduct a recount of votes in one or more of the polling stations in the constituency.
The request for a recount must be in writing and signed by an appropriate representative of the political party or candidate making the request.
The request must also state specifically the number of votes believed to have been miscounted and, if possible, how the miscount may have occurred.
The request should also state how the results of the election have been affected by the alleged miscount. The recount must be ordered where the miscount affected the result.
For example, where the winner won by a certain number of votes and the alleged miscount related only to an insignificant number of votes, the miscount would not have affected the result.
On receipt of a request for a recount, ZEC is required to immediately notify the nature of the request to all the other political parties and candidates that contested the election.
The commission must notify them of the date and time on which the request was received by ZEC.
If ZEC considers that there are reasonable grounds for believing that the alleged miscount took place and that if it did occur, it affected the result of the election, the commission will order a recount in the polling stations concerned.
ZEC may on its own initiative order a recount of votes in any polling stations if it considers that there are reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election.
Where ZEC orders a recount of votes, it shall specify the polling stations whose votes are to be recounted and, where appropriate, the votes that are to be recounted; and the date on which, and the place and time at which the recount will take place; as well as the procedure to be adopted for the recount.
ZEC shall take all necessary steps to inform accredited observers and all political parties and candidates that contested the election of its decision and of the date, time and place of the recount.
Accredited observers and representatives of candidates and political parties that contested the election are entitled to be present at any recount.
Any recount of votes shall be completed within five days after the announcement of the last result in the presidential, parliamentary or local authority elections, as the case may be, and the result of the recount should be announced within twenty-four hours of its completion.
The Electoral Court, on application, may for good cause extend the period of recounting and of announcement of the result of the recount.
ZEC’s decision on whether or not to order a recount and, if it orders one, the extent of the recount, shall be final and not be appealed against.
A distinction between a request for a recount and an order for re-opening of the sealed ballot boxes or sealed packets with election residue should be noted.
Section 70(3)(a) of the Electoral Act ensures that the evidence that is sealed and safely kept in terms of the Act is available for certain purposes, including conducting a recount of the election votes if the need arises.
Section 70(4) of the Act permits an application to be made to the Electoral Court for an order to have the closed and sealed ballot boxes opened if the court is satisfied that the inspection or production of its contents is required for the purposes of instituting prosecution for an offence in relation to an election or its result.
The Electoral Court may order that the separately sealed packets that contain election residue, including V11 forms, be opened for purposes of providing evidence in an electoral petition.
All these are mechanisms available to a party who alleges, but bears the onus to prove beyond reasonable doubt, that the election of the winner be set aside.
An election cannot be lightly set aside without a proven basis even if a losing party is aggrieved.
In the next instalment we shall discuss in greater detail the application of Section 70(4) of the Act, which provides for the re-opening of sealed packets with election residue.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
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