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does the Justice Chiweshe's decision measure against the law
Derek Matyszak, Research and Advocacy Unit
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and law are in direct conflict, and this seems the case with the
decision by Justice Chiweshe on the application by the President
for further time over the (now) 27 byelections. How does this decision
now square with the so-called road map for elections wanted by SADC,
and how does it exemplify the rule of law?
road map demanded repeatedly by SADC, and apparently agreed to by
all political parties, includes a new constitution, electoral reforms,
media reforms and realignment of the security sector.
The second stakeholders'
conference on the constitution is now set for the end of October.
Following this conference, the final draft must then be presented
within a month. There is thus only political maneuvering to prevent
the draft from being presented to Parliament in late October.
conclude its debate
on the draft within one month. The draft
constitution is then to be gazetted and a referendum held within
three months. President Mugabe sets the actual date for the referendum
within this period. If the draft is approved in the referendum,
it must again be gazetted within one month and introduced into parliament
for passage into law no earlier than 30 days after gazetting. There
is no time limit set for the passage of the Constitutional Bill
into law by Parliament, but, if approved by a two-thirds majority
in parliament, the President must sign the act into law within 21
So, if the one
step follows the other immediately, and without delay, it is legally
possible to have a new constitution in place before the end of March,
as the only mandatory maximum (rather than minimum time frame) is
the 30 day period which must be allowed between the gazetting of
the Constitutional Bill and the passage of the Bill through Parliament.
However, if the maximum periods provided for in the GPA
are applied, the constitution cannot be in place before the end
of March. And, as has been seen, the maximum periods provided by
the GPA have been ignored and exceeded in every step of the process
so far, and there is no reason to think that this pattern will not
proclamation for elections must set a date for the sitting of the
nomination courts no earlier than 14 and no later than 21 days after
the proclamation, and an election date no less than 28 days, and
no more than 50 days, after the sitting of the nomination courts.
date for an election after the gazetting of the presidential proclamation
is 42 days thereafter and the latest 71 days. For an election to
be set for the end of March, the proclamation therefore would have
to be in mid-February, 2013, or earlier. Presumably the new constitution
would need to be in place before the proclamation if Zimbabwe is
to adhere to the road map.
said this, is there a serious intention of the part of ZANU PF to
call for elections in March, or has this simply been a strategy
to avoid the complications which will arise if the President is
seen to be in contempt of court for not setting the dates for by-elections
none of the main political parties want?
In any event,
the grant of the extension to this date for the three by-elections
is a violation of the principle of the separation of powers established
by our constitution. The President is already in breach of the law
in having failed to call these by-elections and the 24 other that
are due. The excuse that this could not be done due to financial
constraints has rightly been rejected by the Supreme Court, and
was simply a delaying tactic and abuse of the court's process
- as was the first application for an extension of time within
which to call the by-elections.
has decided that where a vacancy arises in parliament the president
must set the dates for a by-election within 14 days. It is not for
the judiciary or the executive to decide that the will of the legislature
does not require compliance. It is for the legislature to decide
that the law is inappropriate when general elections are pending
(they were not at the time most byelections fell due), it is the
legislature which must then move an amendment to the Act.
It is not for
the courts or the president to decide which laws can be ignored
out of political expediency - though unfortunately this is
not atypical of the modus operandi of both in present day Zimbabwe.
and according the SADC demands, there remain the issues of electoral
and media reforms. Ignoring the most pressing issues of security
sector governance, policing, etc., there are two other key pieces
of legislation needed ahead of elections: those of the amended Electoral
Act and the passing of the Human
Rights Commission Act.
Act and Human Rights Commission Act now merely require the President's
signature and gazetting to become law, and it seems that the former
has now been gazetted. Gazetting the latter is merely a very first
step in setting up an institution that would be capable of meeting
its duties during elections as is now envisaged by the amended Electoral
Act. But there are far more critical reforms needed if Zimbabwe
is to hold credible elections.
been done to clean up the shambolic voters' rolls and it is
not now feasible to compile new voters' rolls before March, and
it is apparent that ZANU PF never had any intention of allowing
this to happen in any event. Similarly, ZANU PF will not allow the
electronic media to be freed or entertain any reform of security
The idea that
a new constitution and the Electoral Act will do anything to render
the next elections free and fair is hype advanced by all the political
protagonists and SADC. In fact, they will have little or no effect
on the elections. Bear in mind that the draft constitution provides
that most of its provisions are only to come into effect AFTER the
No matter what
Electoral Laws are in place, a free and fair election cannot take
place without some restraint placed on the security sector. A clear,
unequivocal and a public statement from SADC now, that an election
carried out in the manner
of June 2008 will not be recognised, will go some way to achieving
this restraint. Without such an unequivocal statement, the prospect
of another 2008, where electoral laws were simply ignored, is ever
present. Without the opening of the electronic media to non-ZANU
PF aligned voices the election can never be deemed fair. Without
the reform of the voters roll the ability to conceal electoral fraud
remains. And without a robust ZEC, silence can be expected from
this quarter, or at best, the resignation of Commissioners who find
such silence unacceptable.
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