Election Judgments - IFES

Jurisdiction for Election Complaints and Violations in Zimbabwe According to the Constitution and Electoral Act Category of Dispute Jurisdiction According to Legal Framework Voter registration appeals Jurisdiction resides with the “designated magistrate” (Electoral Act, Part VI). The law does not clarify who designates magistrates for voter registration appeals; however, the designated magistrate is likely to be in the locality of the voter registration officers. Candidate nomination appeals Jurisdiction resides with the Electoral Court (Electoral Act, Parts XIA and XII). The Electoral Court is a division of the High Court, and judges are appointed by the chief justice after consultation with the Judicial Service Commission and judge president of the High Court (Electoral Act, Sections 161 and 162) Campaign disputes or violations Jurisdiction resides with Multi-Party Liaison Committees, which are established by the ZEC six months prior to an election to assist with conflict management and to support compliance with the Code of Conduct under the Fourth Schedule of the Electoral Act. Campaign expenditure disputes Jurisdiction for expenditure disputes resides with any “competent court” (Electoral Act, Part XVI). A competent court is not defined in the law but may be determined by geography and cause of action – for example, a local Magistrates Court. Polling and counting No specific complaints process is set out in the Electoral Law, although a political party or candidate may request a recount under Section 66A of that law. The First Schedule to the Electoral Act also sets out a Code of Conduct for election agents and observers but does not set out an enforcement mechanism for breaches of the code. Petitions against results Jurisdiction resides with the Electoral Court (same court as described above under “candidate nomination appeals”) for parliamentary and local elections (Part XXIII) and with the Constitutional Court for presidential elections (Electoral Act, Section 111). Election offenses Jurisdiction resides with the director of public prosecutions and the High Court. Offenses are designated throughout the Electoral Act, along with specific chapters on intimidatory practices (XVIIIA), violence and intimidation (XVIIIB), corrupt practices (XIX) and illegal practices and other offenses (XX). Role of the Judiciary on Election Dispute Resolution Given the significant role of the judiciary for all types of pre- and post-election disputes and violations in Zimbabwe, it is important that judges are impartial and informed14 and that the judicial system expedites decisions.15 International observers in 2018 noted concerns regarding the independence of judges, transparency in judicial appointments and the opaque system of allocation of election-related matters to judges.16 There is also inconsistency between the High Court and the Electoral Court’s handling of disputes,17 although based on the International Foundation for Electoral Systems’ (IFES) decades of support to EDR bodies globally, the establishment of a permanent Electoral Court is a positive 14 ICCPR, Article 14, § 1. 15 ICCPR, Article 14, § 3(c) 16 European Union Election Observation Mission (EU EOM) Final Report, https://eeas.europa.eu/ sites/eeas/files/eu_eom_zimbabwe_2018_-_final_ report.pdf, page 40 17 Ibid, page 42 step in terms of specialist expertise and timely adjudication of complaints. It is important for judicial rules of procedure for electoral disputes to be updated to align with the Electoral Act,18 to clarify the burden of proof and standard of evidence19 and to ensure procedural justice is preserved through the adjudication process.20 The Fourth Schedule of the Electoral Act sets out a Code of Conduct for political parties, candidates and other stakeholders. Ensuring compliance with the code is the responsibility of Multiparty Liaison Committees, which are formed six months before an election, chaired by the ZEC and made up of party representatives. Committees can refer disputes to the ZEC – although the law does not set out what action the ZEC can take – and can request mediation of disputes. The committees allow direct communication between the ZEC and political parties and provide a vehicle to resolve disputes at the national, regional and local levels. While international observers in 2018 noted that these committees functioned well at the district and constituency levels, they were less effective at the higher levels, for reasons that included inadequate ZEC leadership.21 It is important that these alternative dispute resolution processes complement but do not replace a formal appeals process.22 18 Ibid, page 45 19 Barry H. Weinberg, The Resolution of Election Disputes: Legal Principles That Control Election Challenges 16, 2nd ed. 2008 20 For a discussion on the components of procedural justice and how they apply to election cases, see IFES, ‘Elections on Trial: The Effective Management of Election Disputes and Violations” https://www.ifes.org/sites/default/files/ifes_ managing_electoral_disputes_and_violations_final. pdf 21 European Union Election Observation Mission (EU EOM) Final Report, https://eeas.europa.eu/ sites/eeas/files/eu_eom_zimbabwe_2018_-_final_ report.pdf, pages 10 and 19 22 ICCPR, art. 14, § 5; General Comment No.32, pages 47- 50. International human rights conventions all recognize, implicitly or explicitly, the fundamental value of an appeal mechanism. Role of Multiparty Liaison Committees on Election Dispute Resolution IFES IFES| |17 2011 Hodson Crystal Avenue Drive| |Alexandra 10th FloorPark | Arlington, | Harare,VA Zimbabwe 22202 | www.IFES.org | www.IFES.org