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This article participates on the following special index pages:
Zimbabwe's Elections 2013 - Index of Articles
the mist: Position paper on elections and the new Constitution
Zimbabwe Lawyers for Human Rights (ZLHR)
May 22, 2013
Constitution will guide us on electoral processes?
On 22 May 2013,
President Robert Mugabe assented to the Constitution of Zimbabwe
(Amendment No.20) Bill (hereafter referred to as “the new
It was gazetted on the same day. This is the “publication
day” of the new Constitution, on which various of its Chapters
have come into operation. This includes Chapter 7, which deals with
elections. The only sections of Chapter 7 which have not become
operational, are section 158 (timing of elections), section 160
(number of constituencies and wards), and section 161 (delimitation
of electoral boundaries).
In all matters
relating to the upcoming electoral process, therefore, Chapter 7
of the new Constitution will be the supreme and binding law. However
the timing of elections will be done in terms of the current
Lancaster House Constitution (hereafter referred to as “the
old Constitution”), whilst constituency and ward boundaries
will remain as they were for the 2008
elections, and there will not be a fresh delimitation exercise.
So the new Constitution
and the old Constitution will be operating simultaneously for purposes
of the timing of elections. They must be read together with the
Sixth Schedule of the new Constitution, which contains provisions
to assist during the transition from the old Constitution to the
The timing of
elections is difficult to estimate and essentially depends on when
Parliament will complete election-related amendments and when those
amendments become operational (when the President assents to the
amendments), as well as when the voter registration and inspection
exercise is carried out. What follows is the minimum time-frame
for various processes.
Limited in when he can Announce the Date of an Election
Part 3, Section
8 of the Sixth Schedule stipulates that the first elections must
be conducted in terms of the Electoral
Law in conformity with the new Constitution. All action taken
must therefore comply with the provisions of the new Constitution.
As certain electoral processes have changed in the new Constitution,
the current Electoral Act, regulations, and other laws and regulations
related to elections must be amended so that they comply with the
new Constitution. Additionally, there will be need to amend the
Local Government Act and the Provincial Councils Act. It would also
be folly to proceed to elections without addressing key reforms
of legislation relating to media, access to information, public
order, criminal procedure and the justice delivery system (including
the mandate and operations of the Electoral Court). All of these
relate to elections and have been affected by the new Constitution.
The new Constitution
clearly sets out in section 157(5) that all amendments to the Electoral
Law and any other law relating to elections must be made before
an election date is proclaimed. Once an election date is announced,
absolutely no amendments can be made to the Electoral Law or other
laws relating to elections, either by Parliament, or by the President
using his executive powers under the Presidential
Powers (Temporary Measures) Act. The President therefore has
to wait for all electoral amendments to be adopted by both Houses
and he must sign them into law before he can announce an election
date. It should be noted that the Zimbabwe Electoral Commission
(ZEC) must be consulted on all proposed amendments relating to elections.
If this process is not followed, the President will be violating
the new Constitution.
Voter Registration and Inspection Exercise
of the Sixth Schedule specifically states that there shall be a
special and intensive voter registration and inspection exercise
for at least 30 days after the publication of the new Constitution.
This does not have to start immediately after the publication date,
and will also be dependent on preparedness, as well as adequate
human and financial resourcing of ZEC, which will supervise the
Registrar-General’s (RG) office during this exercise. There
is also a possibility of extending this 30-day period if it does
not satisfy the needs of people wishing to register to vote or inspect
the voters’ roll. The 30-day exercise is mandatory and failure
to carry out this exercise after the new Constitution comes into
effect will be a violation of the new Constitution by ZEC and the
an Election Date
At the very
earliest, the President could proclaim the date of the election
15 days before the end of the voter registration and inspection
exercise, but only if all the amendments to the Electoral Law and
other related laws have been finalised and are operational. This
would mean that, the day after the exercise ends, the voters’
roll would close and 14 days later, Nomination Court could sit in
terms of section 157(3) of the new Constitution. Polling can then
occur – at the very earliest – 30 days after Nomination
Court has sat.
by which Elections must be Held
of the Old Constitution states that a general election must be held
within a period not exceeding 4 months after Parliament is dissolved.
If Parliament runs its full course, an election would therefore
have to be held before 29 October 2013. If Parliament is dissolved
earlier by the President, elections must be held within 4 months
of the date on which he dissolves Parliament. In other words the
country has four months to announce an election date, convene nomination
courts, and hold the polls.
prerequisites before an election date is announced
processes must occur in terms of the new Constitution before an
election date can be announced.
(a) All amendments
to the Electoral Law and election-related legislation must be finalised
(b) A 30-day
voter registration and inspection exercise has been carried out.
[If a date is announced after (a) but still during the voter registration
exercise, the announcement can only be done 15 days before the end
of the voter registration exercise.]
(c) Once an election date is proclaimed, a minimum of 44 days (14
days between proclamation of the date and the sitting of the Nomination
Court, and a further 30 days between the sitting of the Nomination
Court and Polling Day) must elapse before actual voting.
(d) The polls
must be held within 4 months of the dissolution of Parliament. [At
the latest elections must be held by 29 October 2013, if Parliament
runs its full course, or alternatively within 4 months of the date
on which the President dissolves Parliament.]
to extend its life, and/or for the current government to extend
itself beyond 29 October 2013, there will be need for a constitutional
amendment, possibly together with a new political agreement.
If the above
processes are not complied with there will be a constitutional crisis
that would give rise to the real probability of protracted constitutional
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