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Update on elections, Parliament and legislation – Bill Watch 34/2010
Veritas
August 31, 2010

The House of Assembly has adjourned until 5th October, the Senate until 12th October

SI and General Notices of Special Interest

Transitional conditions for magistrates transferred to Judicial Servicer; Competition Commission ruling against ZESA’s abuse of its monopoly; Gukurahundi Murals prohibited. [See Legislation Update at end of bulletin.]

Next Elections

President Zuma’s report to the SADC Summit included two recommendations that are relevant to the next elections:

• The Inclusive Government and the Zimbabwean political parties should find an uninterrupted path towards free and fair elections and the removal of impediments as and when they arise;
• The SADC Troika should persuade SADC to help Zimbabwe to draw up guidelines for a free and fair election, where intimidation and violence would not play any part and where the result of such elections would be credible. [Note: so far there has been no news on this initiative.]

Elections in 2011?

No date is given for the next elections in the GPA nor in the SADC Summit’s decisions – nor in the implementation matrix for the 24 issues agreed by the principals. But there has been a general assumption that they will be some time in 2011. Both President Mugabe and Prime Minister Tsvangirayi have also talked of elections in 2011. But Zimbabwe Electoral Commission [ZEC] chairperson Justice Mtambanengwe has cast doubt on ZEC’s ability to conduct elections in 2011, citing financial constraints and the fact that the voters roll is in “disarray”. And in a recent radio interview Deputy Prime Minister Mutambara said it was not possible to put the voters roll in order in time for elections in 2011.

Electoral Amendment Bill: President Zuma’s report recorded that the principals have instructed the Minister of Justice to organise immediately the completion of the Bill to amend the Electoral Act. This is reflected in the Implementation Matrix. The principals had already agreed on certain amendments and the negotiators last week met the Zimbabwe Electoral Commission to consult them on the amendments. Completion of drafting and subsequent gazetting of the Bill are awaited.

Diaspora Vote: At the moment the Electoral Act does not allow Zimbabweans in the Diaspora to vote, and as far as is known the agreed proposed amendments make no provision for a Diaspora vote, despite considerable pressure for this provision.

Voters Roll Problems: If funding for compiling a new voters roll can be found, it should not be impossible to have it in place for elections in 2011. Kenya, with a much larger population, managed to produce a new roll in a matter of months.

By-Elections

GPA Parties Extend No-Contest Pact: President Zuma’s report to the SADC Summit on the Zimbabwe negotiations reveals that the three GPA party principals have agreed that “if and when electoral vacancies occurred, the parties would not stand against each other in the resultant by-elections for the duration of the lifespan of the Inclusive Government, in order to avoid conflict”. This extends the GPA’s original twelve-month no-contest provision [Article 21], which fell away last September. This does not mean that there should not be by-elections – an inter-party agreement cannot by itself change the Electoral Act, and the Act requires the prompt holding of a by-election whenever a constituency seat in the House of Assembly or the Senate falls vacant. If the agreement is honoured, the GPA party which held a seat before it fell vacant will put up a candidate and that candidate will not be opposed by candidates sponsored by the two other GPA parties – but there is nothing to stop independent candidates and candidates from other non-GPA political parties standing.

Will Overdue By-Elections be Held? A separate question – not mentioned in the Zuma report or the implementation matrix – is whether and when the Government will comply with the Zimbabwean law and Constitution and publish the Presidential proclamations needed to give the go ahead for the by-elections needed to fill the 17 vacancies that have accumulated since July 2008 – 16 of the by-elections are long overdue, in breach of the strict time-limits laid down by the Electoral Act. [Note: The calling of by-elections is not a ZEC responsibility. ZEC can only organise a by-election once the President has gazetted a proclamation calling the by-election – fixing dates for the nomination court and voting. This is not a matter for the President’s personal decision; it is a Presidential function requiring the advice of Cabinet; so in principle not only the President, but also the responsible Minister – the Minister of Justice – and to a lesser extent the Prime Minister and the rest of the Cabinet must share the blame for the present extraordinary situation. A court case pending in Bulawayo – see next item – may force action at last.]

Ex-MPs Ask High Court to Order Calling of By-Elections: Three former MDC-M MPs, who lost their seats in the House of Assembly in August 2009 after being expelled from the party, have applied to the High Court in Bulawayo for an order compelling the President to call the necessary by-elections and ZEC to conduct them. The three – Abednico Bhebhe, Njabuliso Mguni and Norman Mpofu – wish to stand for re-election as independent candidates. The President’s response to the application is expected to be filed later this week. [Note: Section 39 of the Electoral Act says that the President must, within 14 days of being informed of a vacancy by Parliament, gazette a proclamation calling a by-election to fill the vacancy. The 14-day deadline has long since expired for these vacancies. In a similar situation in mid-2008 an application to the High Court resulted in the calling of a by-election to fill a vacant Bulawayo seat and the by-election was held on the same day as the Presidential run-off election.]

ZEC attitude: ZEC chairperson Mtambanengwe has said ZEC is “concerned” about the by-election backlog but declined further comment, saying the question is sub judice – a reference to the case in Bulawayo.

Parliamentary Update

Another Vacancy in Senate: The death of Senator Chiratidzo Gava [ZANU-PF, Kadoma] on 30th July increased the number of vacant constituency seats in the Senate to 7 – and created a need for another by-election. There are also 10 constituency seats vacant in the House of Assembly.

MDC-T MPs arrested and questioned in Masvingo: On 17th August Tachiona Mharadza, MDC-T MP for Masvingo West, was detained by police in Masvingo on allegations of waving a gun and disrupting a Zanu PF meeting at Zano in Masvingo North but was released late that night after the accusers failed to pick him out in an identity parade. On 19th August Masvingo police arrested Jani Varandeni, the MDC-T MP for Bikita South, but later released him on bail pending a court appearance. And five other MDC-T Parliamentarians, including Deputy Youth Minister Tongai Matutu, were last week held briefly by Masvingo police on allegations of public violence and told that prosecution might follow.

Death of Gibson Sibanda

We record with sorrow the death on 23rd August of Gibson Sibanda, vice-President of the MDC-M and member of the National Healing Organ. His death has also raised the question whether in spite of an inclusive government, award hero status in still hands of the former ruling party.

ZAPU Congress

The revived Zimbabwe African Peoples Union [ZAPU] held a three-day congress in Bulawayo last weekend – the first congress since before the ZANU-ZAPU merger of 22nd December 1987. Dumiso Dabengwa was elected party President for a five-year term. The congress adopted an amendment to the party constitution stipulating that the party president must relinquish that post if elected President of the country. The party announced its intention to have candidates in all provinces for national and local authority elections.

Update on Legislation

Public Order and Security Amendment Bill: This Private Member’s Bill awaits resumption of the Second Reading Debate when the House returns. It lapsed at the end of the previous Session but has been restored to the Order Paper by resolution of the House of Assembly. [Electronic version available.]

Bills awaiting presentation in Parliament: [Electronic versions available]

• Zimbabwe National Security Council Amendment Bill
• Criminal Law Amendment (Protection of Power, Communication and Water Infrastructure) Bill

[Summaries of both these Government Bills were given in Bill Watch 22 of 8th June]

Bill gazetted on 27th August:

• Energy Regulatory Authority Bill [Veritas summary and electronic version coming soon]

Bill being printed:

• Attorney-General’s Office Bill [not yet available]

Two Bills awaiting gazetting as Acts:

• Finance Bill [giving effect to Finance Minister Biti’s mid-term taxation changes] [As some of the taxation changes are stated to be with effect from 1st August, gazetting as an Act is now significantly overdue.]
• Appropriation (2010) Amendment Bill [to give effect to the amended Estimates of Expenditure for 2010]. [Electronic version available.]

These Bills were passed by Parliament following the presentation of Finance Minister Biti’s Mid-Term Fiscal Policy Review on 14th July [final vote in Parliament on 16th July]. They will not become law until gazetted.

Statutory Instruments

• Several SIs under the Civil Aviation Act have been gazetted: Aerodromes Regulations [SI 119], Aeronautical Telecommunications and Information Services Regulations [SI 120], Investigation of Accidents and Serious Incidents Regulations [SI 136], Air Traffic Services [SI 139], Air Navigation (Amendment) Regulations [SI 140]. [Electronic versions not available.]
• On 30th July SIs 126 to 133 were gazetted under the Customs and Excise Act and the Value Added Tax Act following the Mid-Term Fiscal Policy Review. Customs tariff amendments were gazetted on 6th and 27th August [SIs 134 and 148]. A customs duty suspension amendment was gazetted on 27th August [SI 147]. [Electronic versions not available.]
• SI 135 of 6th August contained the Judicial Service (Transitional) Regulations made by the Judicial Service Commission. [Electronic version available.] The SI applies the Public Service Regulations to those members of the Public Service transferred to the Judicial Service [e.g. magistrates], with the modification that all references to the Public Service Commission will now be read as references to the Judicial Service Commission. Other members of the Judicial Service [e.g. Supreme Court and High Court judges] are not affected.
• SIs 138 and 144 establish new districts of Sanyati and Mhondoro-Ngezi in Mashonaland West with effect from 13th and 27th August respectively.

General Notices

• GN 227/2010 of 6th August notified public holidays for 2011 for public information [Electronic version available.]
• GN 233/2020 of 20th August set out the Competition Commission’s order to the Zimbabwe Electricity Supply Authority [ZESA] following its finding that ZESA had been guilty of restrictive practices manifesting abuse of ZESA’s monopoly. [Electronic version available.]
• GN 236 of 27th August gave notice that the Board of Censors has declared “prohibited” the Gukurahundi murals painted by Owen Maseko on the walls of the Bulawayo National Art Gallery for “portraying the Gukurahundi era as a tribal biased event”. Also prohibited: a male nude statue on display at the Gallery, and the showing of video clips of the Gukurahundi murals. [The murals were unveiled at an exhibition in March that was promptly closed down by police. Mr Maseko and the Gallery curator have been summoned to answer charges of contravening the Censorship and Entertainments Control Act.] [Electronic version available.]

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