Pull-out irrelevant: Delay nullified run-off (SALC, South Africa)
June 23rd, 2008
This comes from the Southern African Litigation Centre
There are two dowloadable documents accompanying this:
LEGAL OPINION – Procedures for Presidential Determination and Declaration
LEGAL OPINION – Lawfulness of Runoff
Two independent legal opinions commissioned by the Southern Africa Litigation Centre (SALC) support a conclusion that in the event of a lawful run-off not being held, the candidate who obtained the greatest number of votes in the election of 29 March 2008 has been duly elected as President and must be declared as such.
Read together, the opinions provided by David Unterhalter SC and Wim Trengove SC and Max du Plessis on different aspects of Zimbabwean electoral law argue that Zimbabwe’s Electoral Act provides both a majoritarian principle and a residual principle for determining the outcome of a Presidential election.
The majoritarian principle is predicated upon the requirement that a second election takes place within the 21 day period after the first election. Only two candidates participate in this second election – those with the highest and next highest number of votes from the first round – and the candidate with the greater number of votes shall be declared the duly elected President, as set out in item 3 (1)(a) of the Second Schedule of the Electoral Act.
However item 3 of the Second Schedule also provides for a residual principle: where no second election is held or can be held with the requisite 21 day period, and there were two or more candidates for President, and no candidate received a majority of the total number of valid votes cast, item 3(1)(b) provides that the candidate with the greatest number of votes, and not the majority of the total number of votes, shall be the duly elected President.
This argument is set out in greater detail in an opinion titled: The Procedures Governing the Determination and Declaration of the President in the Event of an Unlawful Runoff. SALC has made the opinion publicly available at www.southernafricalitigationcentre.org
A second opinion commissioned by SALC addresses the issue of whether the Zimbabwe Electoral Commission (ZEC) is authorised to extend the runoff period beyond the statutorily mandated 21 day period and consequently whether the current runoff, scheduled for 27 June 2008, is lawful.
It is argued that ZEC was not constitutionally authorised to extend the run-off: that the regulatory powers it invoked in order to extend the run-off constitute an impermissible and unconstitutional delegation on the part of Parliament, that it violates the separation of powers principle and that insufficient guidelines were given to limit such delegation.
It follows that no lawful run-off can take place if not held within the 21 day period: that ZEC’s purported extension was unconstitutional and unlawful. This opinion is also available from SALC at www.southernafricalitigationcentre.org
If there can be no lawful run-off now, then as set out in the first opinion, the residual principle applies and the Chief Elections Officer is required to declare the candidate with the greatest number of votes the duly elected President. Even assuming that the run-off could be extended beyond the 21 day period, but that the run-off could not occur because violence and intimidation made it impossible that a free and fair election could be held, then the residual principle would still apply and the candidate with the greatest number of votes must be declared duly elected President.
SALC Director, Nicole Fritz said: “These opinions assume critical importance in light of recent developments. They provide clarity in what seems an increasingly uncertain situation. And the give the lie to any claim by Mugabe that he is the lawfully elected President.”
June 23rd, 2008 13:07
So Morgan Tsvangirai is the duly elected President. Can we all stop referring to him as the “Opposition” leader from here on in (especially people in the MDC who seem stuck in this habit).
People rightly seek to follow the legitimate government. An illegitimate government only holds power as long as everyone believes that everyone else believes it has a right to do so. Six generals in their palaces can’t personally beat up 12 million people.
So it’s surely time to hold out, to the people of Zimbabwe, that legitimacy resides with the duly elected President and his Parliament, and not with the military forces that are at war with Zimbabwe.
A call for international aid against such forces, so framed, would do no harm either.
Mike
June 23rd, 2008 13:32
The important thing now seems to be to make the powers-that-be in the Southern African community and world at large aware of what the law and constitution of Zimbabwe says about the election results, and to get them to put pressure on Zimbabwe and/or intervene to ensure that the constitution of Zimbabwe is upheld here. Morgan Tsvangirai was duly elected. The run-off was/is illegal and holds no weight. The world needs to know and understand this. It’s also probably a good idea to spread the word about this around Zimbabwe so the people themselves know where they stand, so let’s all get onto the contact database, and forward this information to as many people as we can. I still haven’t lost hope that we can make a difference, and that we can help effect the change that Zimbabwe so desperately needs!
June 23rd, 2008 13:44
Perhaps for addition to our contact database, and really more relevant to UK residents:
from guardian.co.uk: “A British MP says this: customers of Halifax Bank of Scotland (HBOS) and the Royal Bank of Scotland (RBS) should threaten to withdraw their business since HBOS and RBS are also clients of the German-based firm Giesecke and Devrient… which prints money for Mugabe.”
I’ll try track down relevant contact info today…
June 23rd, 2008 21:44
Barclays bank is the worst offender and I did try to get people to ask them about their doing then found that the MDC uses them and advised them to move their priorities but I was largely ignored. SABC ran an article whilst we were doing the ship thing and pointed directly to Barclays Bank, and the movement of fund from ivory sales////