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Are elections by 31st July possible - Bill Watch 19/2013
Veritas
June 11, 2013

Are Elections by End of July Possible?

Constitutional Court Judgement of 31st May

In a majority judgement handed down by Chief Justice Chidyausiku on 31st May the Constitutional Court ordered and directed the President:

“to proclaim as soon as possible a date(s) for the holding of Presidential election, general election and elections for members of governing bodies of local authorities in terms of s 58(l) of the Constitution of Zimbabwe, which elections should take place by no later than 31 July 2013”.

Court Watch 7/2013, of 11th June, describes the background to the case and the judgements [i.e., the majority judgement and the two dissenting judgements] in more detail, and refers to suggestions for further court action that might be taken should the President find it constitutionally, legally or practically impossible to comply with the court’s order.

Why the Timing set by the Court is Difficult, Maybe Impossible

Formal proclamation must be gazetted: The Constitutional Court’s use of the word “proclaim” in its order indicates that the court was referring to the formal legal step of a proclamation in the Government Gazette complying with section 157(3) of the new Constitution and the Electoral Law. The President cannot comply merely by making a public statement naming the election date.

The Electoral Law [Act and Regulations] cannot be changed after the electoral proclamation: Section 157(5) of the new Constitution provides that “after an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election”. [Note: Section 157 is applicable, because it is on the list of provisions of the new Constitution that came into operation immediately the Constitution was gazetted on 22nd May.]

But the Electoral Law still needs to be changed to comply with the new Constitution: The forthcoming election is an election for the purposes of the new Constitution [because now that the new Constitution has been gazetted, it is too late to have an election under the former Constitution]. And the Electoral Law has to be changed to fit the new Constitution. There are important essential changes to be made to the Electoral Act to make it comply with the new Constitution, for instance to deal with new features such as:

• election of 60 women members of the National Assembly under a party-list system of proportional representation
• election of 60 Senators under a party-list system of proportional representation
• election of 10 provincial councillors for each provincial council under a party-list system of proportional representation.

The new Constitution adopts the principle of party-list proportional representation but leaves the detail to be provided for by the “Electoral Law”, defined as “the Act of Parliament that regulates elections in terms of this Constitution”, i.e., the Electoral Act.

The significance of this is that until an Electoral Amendment Bill making appropriate amendments to the Electoral Act has been passed by Parliament, assented to by the President and gazetted, it will not be legally possible for the President to “proclaim” the election date.

[Note on Presidential Powers regulations: There has been a suggestion that the necessary changes to the Electoral Act can be made by regulations made by the President under the Presidential Powers (Temporary Measures) Act [PPTM Act]. This is not so. The PPTM Act itself says that it cannot be used to do by regulation what the Constitution says must be provided for “by, rather than in terms of, an Act of Parliament”. And the new Constitution requires just that: for instance, section 120 refers to elections “in the manner prescribed in the Electoral Law”, and the election of Senators having to be “in accordance with the Electoral Law”, i.e., the Act of Parliament regulating elections.]

The Electoral Amendment Bill still has to go to Parliament: The Minister of Justice and Legal Affairs, as the Minister responsible for the administration of the Electoral Act, has to get the agreement of the GPA parties, then get the Bill through Cabinet, before taking it to Parliament. In the President’s absence in the Far East, there was no Cabinet meeting last week. So the Bill can only come before Cabinet on Tuesday, 11th June. Monday 17th June is the last day for gazetting a proclamation that would comply with the new Constitution’s timeframe for an election on 30th July [see below]. Which means that if the Bill is agreed by Cabinet on Tuesday, it still has to be passed by both Houses of Parliament, and assented to by the President, and gazetted as an Act in the Government Gazette, all before 17th June.

That may seem achievable in theory if the three GPA parties can reach agreement on the Bill in time for it to be rushed through Parliament in a day or two this week. But there will have been no time for the gazetting of the Bill for public information, or for input from concerned stakeholders other political parties, civil society, let alone members of the public at large. This would detract from the acceptability of the Bill. [And the proclamation date also depends on the date that the intensive voter education period finishes – see below.]

Need to consult ZEC before Electoral Act amended: Section 157(4) of the new Constitution also already in force says that no amendments may be made to the Electoral Law unless ZEC has been consulted and its recommendations duly considered. This requirement must not be overlooked in undue haste to comply with the Constitutional Court’s order.

New Constitution requires at least 44 days from proclamation date to polling day: Although the election proclamation will actually be issued in terms of the Electoral Act, section 157(3) of the new Constitution stipulates the minimum content of the proclamation: “The Electoral Law must provide for the nomination of candidates in any election to take place at least fourteen days after the publication of the proclamation calling for that election. Polling must take place at least thirty days after the nomination of candidates.” So the shortest election timetable compatible with section 157(3) needs 44 days after the day the proclamation is gazetted:

• Proclamation gazetted Day 0
• Earliest nomination day Day 14 [at least 14 days after proclamation]
• Polling day Day 44 [at least 30 days after nomination day]

Longer periods can be fixed, within limits set by the Electoral Act. The Electoral Act currently allows for a campaign period of between 42 and 63 days between nomination day and polling day [these limits were suggested by the Zimbabwe Electoral Commission when the Act was amended in 2012].

The 31st July, the deadline specified by the court is the 44th day after 17th June. It follows that unless the Electoral Amendment Bill is through Parliament, signed by the President and gazetted as law on or before Monday 17th June, it will be impossible for the President to proclaim an election to be held on, let alone before, the 31st July. But even this would mean violating the new constitution as nomination day can only be after voter registration is over – which will be the 9th July [see below]

Special 30-day intensive voter registration/voters roll inspection exercise must precede nomination day

The current absence of a constitutionally-compliant Electoral Law is not the only problem. Another provision of the new Constitution [Sixth Schedule, paragraph 6(3)] precludes an election with polling on 31st July. Why? Because this paragraph lays down that there must, for the purpose of these first elections, be a “special and intensive voter registration and voters’ roll inspection exercise for at least thirty days after publication day [22nd May]”. This exercise only started on Monday 10th June and ZEC has said that the voters’ roll inspection will be restricted to the same period, making Tuesday 9th July the 30th and last day of this constitutionally-essential exercise.

Why must nomination day wait until the exercise has been completed? Because section 26A of the Electoral Act provides that the voters roll must be closed for the purposes of the election 24 hours before nomination day [it has not been suggested that this will be changed by the Electoral Amendment Bill]. As Tuesday 9th July is the last day of the registration exercise, Thursday 11th July becomes the earliest possible nomination day and Saturday 10th August the earliest possible polling day just ahead of two major national holidays [see below].

Need to implement the new Constitution’s “principles of the electoral system”

Section 155 of the new Constitution [another section already in force] obliges “the State” to take all appropriate measures to ensure that effect is given to the principles the section spells out. The use of the words “the State” is significant and must be taken into account by the courts; it shows that the obligation is imposed on “all executive, legislative and judicial institutions and agencies of government at every level” [new Constitution, section 2]. The principles include freedom from violence and electoral malpractices, proper registration of voters, fair and equal access to electronic and print media, both public and private, for all contesting parties and candidates.

A lot still has to be done

1. Alignment of laws with provisions of new Constitution already in force Parliament has not yet seen any of the Bills needed to align existing statutes with those provisions of the new Constitution that came into force on 22nd May. What little remains of Parliament’s term should be meaningfully used to bring about those reforms. While the Act most obviously needing amendment is the Electoral Act, there are other laws that fall short of the standards set by the new Declaration of Rights and need to be changed now to avoid compromising the coming elections and the run-up to them laws such as POSA, AIPPA, provisions of the Criminal Procedure and Evidence Act on powers of arrest and detention and the time-limit for taking arrested persons to court, and provisions of the Criminal Law Code that unduly inhibit freedom of speech and expression and of the press, including criminalisation of defamation, etc. [See Constitution Watch 26/2013 of 8th May for more detail].

2. Implementation of Election Roadmap Over and above legislative action, there are still unfulfilled administrative steps envisaged in the Roadmap to Elections to be implemented these require action such as appointing new controlling boards for the public media houses; ensuring impartial police administration of the law to allow true freedom of speech and assembly to all political parties; and steps to ensure there is no security force interference in the elections. [See Bill Watch 14 and 15/2013 of 15th and 16th May for more detail.]

Timing Extremely Tight

With so much needing to be done in such a short time, doubts inevitably arise:

• Can Parliament pass the necessary Bills in time for a 31st July election?
• Can the voters roll be put into shape in the time available?
• Can ZEC fairly be expected to organise an election that complies with all aspects of the new Constitution including those which say all prisoners have the right to vote?
• Can funding be arranged?
• Will there be an attempt to comply with the order of the African Commission on Human and Peoples Rights to cater for the Diaspora vote?
• Will a too-hasty rush to the polls only give rise to aggrieved would-be voters taking ZEC and the Government to court for breaching their rights to a properly-conducted election?

It would be sad if the first election under the new Constitution were to be spoilt by inadequate time, lack of funding, an incomplete or unsatisfactory voters roll, or too little time for ZEC to satisfactorily arrange the logistics associated with such a large project. Zimbabwe desperately needs an election that is credible within the country, within SADC and the international community.

Timing of Presidential Runoff Election and Clashes with Other Forthcoming Events

The election proclamation must by law specify a date for the Presidential runoff election should one become necessary. The Electoral Act says so. Under present Electoral Act timeframes a runoff election must be held at least 28 days and not more than 42 days after the main election. This means that there must be a weighing-up of the possible effects of runoff election campaigning and/or polling clashing with important national and international events coming up in August :

Heroes Day 12th August

Defence Forces Day 13th August

UN World Tourism Conference, Victoria Falls 24th to 29th August.

A poll on 31st July or in the first half of August carries with it the possibility of a clash with the national holidays and holding a runoff Presidential election during or shortly after the UNWTO Conference. This raises the spectre of the run-up to the UNWTO Conference, or the Conference itself, being thrown off course by the counter-attraction of the closing stages of a hotly-contested runoff Presidential election campaign.

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