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Illegal not to hold by-elections - Bill Watch 20/2009
Veritas
June 13, 2009

Reminder: Deadline for Applications for Appointment to Constitutional Commissions

Friday 19th June is the last day for submission of applications to Parliament by persons wishing to be considered for appointment to one or other of the four Constitutional Commissions.

Existing Parliamentary Vacancies – By Elections Long Overdue

There are already 7 vacancies in constituency seats in Parliament [4 in the House of Assembly; 3 in the Senate], all dating back to 2008 [for details see Bill Watch Special of 17th May on By-Elections]. The President should have gazetted proclamations specifying the dates on which nomination courts will sit and the dates when voting will take place if necessary, i.e., if two or more candidates are nominated. These are long overdue – under section 39 of the Electoral Act a by-election proclamation must be gazetted within 14 days of the President receiving notification of a vacancy. Parliament has stated that all vacancies were promptly notified to the President’s Office. A recent newspaper report stated that it was up to ZEC to set the by-election procedure in motion, but that is not so. ZEC has to wait for the proclamations to be gazetted by the President. [Note: This is not a matter in which the President is free to act as he thinks fit; he must act in accordance with Cabinet advice. So the inclusive government as a whole is responsible for these inordinate delays.]

Why these delays in holding by-elections?

The Government has put forward no satisfactory explanation for its failure to call the by-elections – in spite of the fact that this has left the constituencies concerned without representation in Parliament for many months, in breach of the Electoral Act and of the constitutional rights of the voters in those constituencies. The law is absolutely clear that these vacancies should have been filled. If the Electoral Act’s requirements for calling by-elections are not complied with, the High Court can order compliance, provided an interested party takes the trouble to go to court; that happened in Bulawayo last year when a by-election was unduly delayed.

There is a worry that waiting for the vacancies resulting from existing MPs being appointed as new provincial governors [end of August, see below] will be another reason put forward for further delays. If by-elections are delayed till mid-September, this would raise the spectre of election violence. The IPA tried to put a moratorium of 12 months on election violence. In Article 21 the three parties declared their awareness of the “divisive and often times confrontational nature of elections and by-elections”, noted the need to allow the IPA to take root amongst the parties and the people, and recognized the need to give people breathing space and a healing period. They accordingly agreed that for a period of 12 months from the signing of the IPA [which period expires on 15th September] should any electoral vacancy arise, “only the party holding that seat prior to the vacancy occurring shall be entitled to nominate and field a candidate to fill the seat”. [Note: this does not rule out by-elections, it is merely an agreement that the three parties will not field candidates against each other – only the party previously holding the seat will field a candidate.]

Another reason why by-elections should be held promptly is that the MDC majority in the House of Assembly is very tenuous and it has already been reduced. The nearer the MDCs come to losing their majority and ZANU-PF to gaining a majority, the more violent by-elections are likely to be if postponed. The by-elections should be held now while there is a moratorium on the three parties of the IPA competing against each other.

Should by-elections wait for a new election commission?

No – this is going to take a long time to put into place and, to reiterate, it is illegal to wait. And, as pointed out above, waiting could result in a more violent election environment. Any new Commission would be operating with existing electoral statutes and administrative structures and existing personnel until the whole system is overhauled.

It is certainly hoped that the new Electoral Commission will be functioning, and will have facilitated the reform of the Electoral Act and the reform of the whole electoral apparatus [including its de-militarisation and de-politicisation], before the holding of the Referendum on the new Constitution and the General Elections expected to coincide with the introduction of the new Constitution.

Provincial Governors

Despite discrepancies reported from different parties, it is likely that the final division of governorships agreed on will be MDC 5, ZANU-PF 4, MDC-M 1. But the new governors will not be sworn in until towards the end of August when the departing governors will have served one year of their two-year contracts. [Roy Bennett’s swearing-in as Deputy Minister will be postponed until the new governors are sworn in.] The allocations per party and province will be:

• ZANU-PF: Mashonaland Central [Martin Dinha], Mashonaland East [Aeneas Chigwedere], Mashonaland West [Faber Chidarikire] and Midlands [Jaison Machaya] [These are all already Governors.]
• MDC-T: Bulawayo [Seiso Moyo], Harare [James Makore], Manicaland [Julius Magaramombe], Masvingo [Lucia Matibenga], and Matabeleland North [Tose Sansole]. [MDC-T has nominated its new Governors.]
• MDC-M: Matabeleland South. [To be nominated.]

Departing Governors: Ginyilitshe Mathema [Bulawayo], David Karimanzira [Harare], Christopher Mushowe [Manicaland], Titus Maluleke [Masvingo], Thokozile Mathuthu [Matabeleland North] and Angeline Masuku [Matabeleland South]

Effect in Parliament of Changes in Provincial Governorships

As provincial governors are ex officio members of the Senate, the changes will affect party strengths in the Senate. Assuming that the governorship question really has been finalised, ZANU-PF will lose 6 seats while MDC-T will gain 5 seats and MDC-M 1. In addition, as four of the five MDC governors-designate are already Parliamentarians [3 in the House of Assembly and 1 an elected Senator] they will relinquish their constituency seats in order to take up their ex officio seats, causing another four vacancies [3 in the House of Assembly and 1 in the Senate] to be filled by by-elections. [MDC-M has not yet named a governor-designate, so it is not known if their nominee will be from outside Parliament or from the Senate or the House of Assembly].

The greatest impact will be on party numbers in the Senate. Numbers of elected Senators are fairly even at present: ZANU-PF 30, MDC-T 24 and MDC-M 6, giving the combined MDCs 30. Of nominated and ex officio Senators ZANU-PF has 16 [which will change to 10], MDC-T 4 [which will change to 9] and MDC-M 2 [which will change to 3]; the combined MDCs have 6 [which will go up to 12]. Assuming that the MDCs will vote together, this means that in the Senate ZANU-PF would only have a majority if the chiefs [there are 18] vote with them, which has been traditional while ZANU-PF was the governing party.

On the Parliamentary Agenda

There are still no Bills to be considered. The order papers [agendas] for both Houses list only the uncompleted debates on the President's Speech at the opening of Parliament last year and other motions carried forward from the May sittings. It is hoped there is time to conclude debate on important motions, e.g., in the House of Assembly – for appointment of a select committee to investigate last year’s election violence, and on the need for a transparent system for distribution of agricultural inputs for the 2009-10 season; in the Senate – on the need for a policy to harness the expertise and resources of Zimbabweans in the Diaspora. These motions have been carried forward for months.

On Wednesday it is Members’ Question Time in the House of Assembly and there are twenty-nine questions down for reply by Ministers. There include important questions that have been on the Order Paper since March; it is to be hoped that this backlog can be cleared soon.

House of Assembly Portfolio Committees will resume meeting on Monday 15th June. No public hearings have been announced.

Senate Thematic Committees have been decided on by the Committee on Standing Rules and Orders. The members of the five committees will be announced in the Senate on Tuesday.

The Parliamentary Legal Committee has met once to elect the chairperson. There is a year’s backlog of statutory instruments which the committee has a constitutional obligation to examine for consistency with the Constitution. It is hoped it will be able to commence this onerous and urgent task soon. [If the committee considers a statutory instrument to be inconsistent with the Constitution, it must report this to the Senate; if the Senate agrees and is not overruled by the House of Assembly, the President must then repeal the offending statutory instrument. Standing Orders also require the committee to report on statutory instruments that it considers to be ultra vires [outside the scope of] their enabling Acts. So the longer this task is left undone, the greater the possibility of unconstitutional or ultra vires statutory instruments remaining on the books, to the detriment of the members of the public affected by them, and this could lead to litigation.]

Update on Legislation

Bills: No new Bills have been gazetted. Nor are there any Bills being printed. The Reserve Bank of Zimbabwe Amendment Bill approved by Cabinet recently has not yet been sent to Parliament for printing and gazetting.

Acts: The Appropriation (2008) (Additional) Bill [passed by Parliament on 24th March] has still not yet been gazetted as an Act.

The Engineering Council Act (No. 3 of 2008) comes into operation on Monday 15th June [date fixed by SI 84/2009].

Statutory Instruments: SI 88/2009 [Companies (Alteration of Table of Fees) Notice] fixes US dollar fees for registration of companies and other matters under the Companies Act [effective from 12th June].

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