pic. Prof Welshman Ncube ceased with errand legal opinions
The averment to the Prof Welshman Ncube and Sheila Jarvis opinions about the legality or otherwise of the Presidential runoff election that was staged on 27 June 2008 was nothing more than an attempt to arm whoever will preside over the election of Lovemore Moyo as Parliamentary Speaker the premise on which to uphold the challenge.
In his overzealous attempt to defend Prof Ncube’s flawed and out of context interpretation of the law Hon Senator Coltart argued that the adjudicator must when ceased with the matter ignore the Second Schedule of the Electoral Act 2:13 that upholds Tsvangirai’s election as President at S110 (3)(1) and instead uphold the Electoral Act S110(3) in so far as it sanctioned the runoff without the context in which it prescribes the runoff which coming from a qualified lawyer of Coltart’s experience and stature is most alarming.
He argued that where there is a conflict between a section of an Act and that one of the provisions in a schedule, the enactment in this section prevails over that in the schedule instructed by the opinions of Senior Counsel Adrian De Bourbon and Jeremy Gauntlett and extensive citations of case law therein.
But sadly while the principle he averred to is accurate and unambiguous, its application in the specific issue Sheila Jarvis had raised is questionable.
Jarvis did not argue that a clause in the Electoral Act should prevail over the clause in the act from which it devolves in all circumstances but rather that in the Zimbabwe Electoral Act the Second Schedule that evolved from Section 110 requires a specific performance from the Chief Elections Officer once he has tallied the results of a two or more candidate contested Presidential electorate and that performance is not in conflict with the basic clause of the Act.
Section 110(3) of the Electoral Act 2:13 is tacit and allows for no ambiguity in its interpretation when it states;
110 Determination and declaration of result of election to office of President
(1) -------;
(2) ---------;
(3) Where two or more candidates for President are nominated, and after a poll taken in terms of subsection (2) no candidate receives a majority of the total number of valid votes cast, a second election shall be held within twenty-one days after the previous election in accordance with this Act.
It then goes further to explain who will contest the runoff election so necessitated by the failure of initial contestants to secure a majority of the total number of valid votes – (which in Zimbabwe’s case is 50% plus one additional vote).
The Second schedule that explains the specific performances required of the Chief Elections Officer in respect of a multiple contested Presidential election details that;
SECOND SCHEDULE (Section 110)
DETERMINATION AND NOTIFICATION OF RESULTS OF PRESIDENTIAL ELECTION
Determination and declaration of result of Presidential poll
(1) After the number of votes received by each candidate as shown in each polling station return has been added together in terms of subparagraph (i) of subsection (3) of section sixty-five and the resulting figure added to the number of postal votes received by each candidate, the constituency elections officer shall forthwith—
a) ---------------------;
b) ---------------------;
c) -----------------------;
(2) Immediately after arranging for the constituency return to be transmitted in terms of paragraph (c) of subparagraph (1), the constituency elections officer shall affix a copy of the constituency return on the outside the constituency centre so that it is visible to the public.
That done the next procedure that is the start of the Chief Elections Officer’s specific performance is detailed as;
Procedure on receipt of constituency returns
2.(1) The Chief Elections Officer shall give reasonable notice in writing to each candidate or his or her chief election agent of the time and place where the Chief Elections Officer will verify and collate all the constituency returns.
2. (2) At the time and place notified for the verification and collation of the constituency returns referred to in subparagraph (1) and in the presence of such candidates, their chief election agents and observers as are present, the Chief Elections Officer shall display each constituency return to those present and shall, on request, allow a candidate or chief election agent of a candidate to make notes of the contents of each constituency return.
2.(3) When the Chief Elections Officer has completed the verification of the constituency returns under subparagraph (2) the Chief Elections Officer shall, in the presence of such persons referred to in subsection (2) as are present, add together the number of votes received by each candidate as shown in each constituency return.
Now equipped with the requisite verified results the Chief Elections Officer must proceed to announce the outcome of the election as prescribed by the Act at S 110(3) as follows;
Determination, declaration and notification of result of Presidential poll
3. (1) Subject to subparagraph (2), after the number of votes received by each candidate as shown in each constituency return has been added together in terms of subparagraph (3) of paragraph 2, the Chief Elections Officer shall forthwith declare the candidate who has received—
(a) Where there are two candidates, the greater number of votes;
(b) Where there are more than two candidates, the greatest number of votes;
to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration.
It cannot be put any clearer than that or can it? This specific performance required of the Chief Elections Officer is not in any way linked to whether or not that greatest number of votes is 50% plus one additional vote or more or less than that. It is merely to do with who has the greatest number of votes after the election results have been verified and thus is entitled to be declared President after that election.
Such declaration will remain valid unless challenged in the Electoral Court and nullified or alternatively the candidate with the next highest number of votes behind the declared winner demands for a runoff on the grounds that the declared winner did not garner the requisite 50% plus one extra vote and thus cannot decline the runoff.
Where such demand is made it does not suspend the Chief Elections Officer’s prescribed specific performance of declaring the candidate with the greatest number of votes duly elected President of the Republic of Zimbabwe and proceed to gazette that result at the same time he will grant the runoff request and ensure it is staged within the prescribed time limit of 21 days.
That is the argument Jarvis put forward that Coltart is dismally failing to fault. The person with the greatest number of verified votes after the 29 March 2008 Presidential election ought to have been and still must be declared duly elected President of the Republic of Zimbabwe up to 11September 2008 when the election was set aside by mutual consent of the parties to the mediated settlement of the dispute.
That action is not necessary for academic reasons but will automatically nullify the 27 June 2008 election that was staged outside of legislated limits at the same time it will clarify the position with appointments Mugabe made to the Senate and Governorship before his position as President had been legitimised.
“In short there is a contradiction in the Electoral Act between Section 110 and the Second Schedule. The question is which provision prevails - Section 110 or the Second Schedule?” asked Senator Coltart.
Clearly the only conflict there is, is the attempt by Coltart to put words into Jarvis and use them to defend a cause that was never in dispute.
If after the Chief Elections Officer had declared Tsvangirai who had the greatest number of votes duly elected President of the Republic of Zimbabwe, based on the tallies he announced on 2 May 2008 but never gazetted, Mugabe had requested for a runoff election on account the tallies did not give Tsvangirai the 50% plus one extra vote necessary to avoid the runoff, then that request could not have been declined if it was made within 21 days of 29 March 2008 when the election was held.
However Professor Ncube could not have been legally correct to determine as he did that;
“You can’t remake the rules after the game. The game was that you had more than two players. One of the players had to get 50 + 1 percent for power to move to him. That did not happen---” as an incontestable legality.
Clearly the rules were remade by the Chief Elections Officer than by the contestants and for Prof Ncube mislead sympathy towards the villain instead of defend the victim is bad at law and morally at the same time it is political deceit and mischief on his part.
For a Legislator of the Upper House that we expect to scrutinise laws and ensure they are non partisan to support an opinion that is clearly flawed because it was made by someone who is in the leadership of the political formation he belongs to is alarming.
How many more bad laws will Hon Coltart support because they were proposed by his political associates and how many good laws will he oppose because they were proposed by his political opponents.
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