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Legal
opinion on March 2005 general election date
Zimbabwe
Human Rights NGO Forum and Zimbabwe Election Support Network (ZESN)
January 28, 2005
Section 58(1) of the
Constitution is the starting-point:
"(1) A general
election shall be held on such day or days within a period not exceeding
four months after the issue of a proclamation dissolving Parliament
under section 63(7) … as the President may, by proclamation in
the Gazette, fix."
In other words, the
polling day (or last polling day) in the general election must fall within
that four-month period.
Example:
- Assuming publication
of the dissolution proclamation on the 1st February, the election proclamation
would have to provide for polling to be completed not later than the
31st May.
What follows, however,
assumes that polling in the forthcoming general election will take place,
as generally anticipated, in March. For practical purposes that seems
to require polling not later than Thursday the 24th March; March polling
after that date seems unlikely, having regard to the Easter long weekend,
with its public holidays on Good Friday the 25th March, Easter Saturday
the 26th March and Easter Monday the 28th March.
The new Electoral
Act, published on the 21st January 2005 as Act No. 25 of 2004, states
what must be contained in the election proclamation and lays down the
minimum and maximum lengths of the two stages in the electoral process
- (1) from publication of election proclamation to nomination court and
(2) from nomination court to polling day (or days). The relevant provision
is section 38 (which is set out at the end of this note). It is almost
the same as the corresponding provision of the former Act, also section
38; the periods laid down are identical. The timing of the publication
of the election proclamation controls the timing of the ensuing stages
in the process.
Nomination court
day or days
The day or days fixed by the proclamation for the sitting of the nomination
court must be "not less than 14 nor more than 21 days after the date
of publication" of the election proclamation.
Polling day or
days
The day or days fixed by the proclamation for polling must be "not
less than 21 nor more than 45 days after the nomination day or last nomination
day".
Shortest permissible
period from proclamation to poll
If the shortest possible election programme is desired, the first polling
day would be the 35th day after the date of publication of the election
proclamation (14 + 21).
Examples:
- Proclamation published
Monday 31st January
Nomination
day Monday 14th February
(First) polling
day Monday 7th March
- Proclamation published
Friday 4th February
Nomination
day Friday 18th February
(First) polling
day Friday 11th March
Longest permissible
period from proclamation to poll
This is written on the 27th January, only 63 days from the end of March.
It is, therefore, too late for the longest legally permissible election
programme (21 + 45 = 66 days) to be used for a March election. A still
possible 59-day programme would be as follows:-
Example:
- Proclamation published
Monday 31st January
Nomination
day Monday 21st February
(Last) polling
day Thursday 31st March
Other examples between
the extremes, and allowing for weekend polling.
Section 38 allows
for flexibility between the shortest and longest periods. The following
examples provide for the weekend polling that has become customary. They
are examples only. Other combinations are possible, as long as section
38 is complied with.
Examples:
- Proclamation published
Friday 4th February
Nomination
day Friday 18th February
Polling Weekend
12th-13th March or Weekend 19th-20th March
- Proclamation published
Friday 11th February
Nomination
day Friday 25th February
Polling Weekend
19th-20th March
Excerpt from the
new Electoral Act [Electoral Act [Chapter 2:13] (No. 25 of 2004]:
38 General
elections
-
In a proclamation in terms of subsection (1) of section 58 of the
Constitution fixing a day or days for the holding of a general election
for the purpose of electing members of Parliament, the President shall
provide for the matters required by this section.
- For
the purposes of the election of members of Parliament, other than
Chiefs, the President shall fix—
(a) a place or places at which, and a day or days, not less than fourteen
nor more than twenty-one days after the day of publication of the
proclamation referred to in subsection (1), on which a nomination
court shall sit in terms of section forty-six to receive nominations
of candidates for election as members of Parliament; and
(b) a day or days, not less than twenty-one nor more than forty-five
days after the nomination day or last nomination day, as the case
may be, fixed in terms of paragraph (a), on which a poll shall be
taken if a poll becomes necessary in terms of paragraph (c) of subsection
(17) of section forty-six for the election of members of Parliament;
and
(c) a day on which the voters rolls for that election shall be regarded
as closed for the purpose of accepting the registration of voters
who may vote at the election, which day may be on or after the day
of publication of the proclamation referred to in subsection (1).
- For
the purposes of the election of chiefs the President shall fix times
and places at which and a day or days, not earlier than the nomination
day fixed in terms of paragraph (a) of subsection (2) and not later
than fourteen days after the polling day or last polling day, as the
case may be, fixed in terms of paragraph (b) of subsection (2), on
which electoral colleges shall meet in terms of Part X.
- Subject
to section 58 of the Constitution, the President may, by further proclamation
in the Gazette, alter any day, time or place fixed in terms of subsection
(1), (2) or (3) and the day, time or place as so altered shall be
deemed to have been fixed in terms of the appropriate subsection.
Visit the Zimbabwe
Human Rights NGO Forum fact
sheet
Visit the ZESN fact
sheet
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