Movement for Democratic Change and Morgan Tsvangirai v The Chairperson of the Zimbabwe Electoral Commission and The Chief Elections Officer Zimbabwe Electoral Commission

The Movement for Democratic Change (MDC) and its president Morgan Tsvangirai, who was a presidential candidate in the harmonized elections held on 29 March 2008, brought an urgent application against the Zimbabwe Electoral Commission (ZEC) and its Chief Elections Officer. Results for local authority councilors, Members of the House of Assembly and Senate had been announced at constituency levels and by the National Collation Centre. However, presidential election results had not been announced by 4 April 2008, six days after the elections. The applicants sought an order compelling the respondents to announce the presidential results, alleging unreasonable delay. The respondents explained that they had received complaints about miscounting under s 67A of the Electoral Act and were considering whether to order a recount before announcing results.

• Whether the High Court has jurisdiction over the Zimbabwe Electoral Commission in light of s 61(5) of the Constitution which provides that ZEC shall not be subject to direction or control of any person or authority
• Whether the application was urgent and brought in proper form
• Whether s 67A of the Electoral Act (providing for recounts) applies to presidential elections
• Whether the delay in announcing presidential results was unlawful or unreasonable
• Whether ZEC was entitled to consider complaints and order a recount before announcing presidential results

The application was dismissed with costs on the ordinary scale.

The binding legal principles are: (1) The High Court has jurisdiction over ZEC when it acts outside the law, as s 61(5) of the Constitution only protects ZEC's independence when it exercises its functions in accordance with law; (2) Section 67A of the Electoral Act applies to presidential elections through importation by s 112, with necessary changes limited to names of officers, sections and places, not substantive provisions; (3) While s 67A(1) allows complaints only within 48 hours after declaration of results, s 67A(4) permits ZEC to order a recount on its own initiative before announcement if it has reasonable grounds to believe votes were miscounted; (4) ZEC's decision on whether to order a recount and its extent is not subject to appeal per s 67A(7), giving ZEC wide discretion; (5) Where ZEC's conduct is authorized by law and it has not strayed from legal requirements, courts will not intervene even if delay occurs.

The court made several obiter observations: (1) The legislature intended presidential results to be processed urgently, as evidenced by provisions requiring "forthwith" and "immediately" in ss 64, 65 and the Second Schedule, and the possibility of a re-run within 21 days under s 110(3); (2) Processing of presidential results should be given priority over announcement by the National Collation Centre of other elections which have no possibility of re-runs; (3) A delay of six days between elections and the application appeared unjustified prima facie, pointing to lack of efficiency, especially when three other elections were finalized within two days; (4) The court noted that procedural defects in applications should not defeat meritorious cases where no prejudice results, referencing the power to condone under rules 229C and 4C; (5) The court declined to award costs on the higher scale, noting that electoral matters are important and applicants should not be penalized for approaching courts in circumstances of unexplained delay.

This case is significant in Zimbabwean electoral and administrative law as it clarifies the scope of judicial oversight over the Zimbabwe Electoral Commission. While ZEC enjoys independence under s 61(5) of the Constitution, this is not absolute - courts retain jurisdiction to intervene when ZEC acts unlawfully or outside the law. The judgment interprets the Electoral Act's provisions on urgency in processing presidential results and the interplay between different Parts of the Act. Importantly, it establishes that s 67A(4) gives ZEC discretion to order recounts on its own initiative before announcing results, and that such decisions are not subject to appeal. The case balances electoral efficiency and urgency against ZEC's independence and discretion to ensure accurate results.