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Presidential powers regulations used to amend Electoral Act - Bill Watch 20/2013
Veritas
June 13, 2013

In a Government Gazette Extraordinary published this morning the President has gazetted Statutory Instrument 85 of 2013, entitled the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, 2013. The regulations contain 75 pages of amendments to the Electoral Act - the amendments that were expected to be in the Electoral Amendment Bill due to come before Parliament next week. [Veritas hopes to make the regulations available in soft copy shortly.]

The Presidential Powers (Temporary Measures) Act empowers the President, subject to certain limitations, to make regulations amending an Act of Parliament when because of the urgency of the situation it is inexpedient to wait for Parliament to pass an amendment Act. But its use in this case can be questioned [see below].

In justification of the invocation of the Presidential Powers (Temporary Measures) Act, the preamble to the Statutory Instrument:

• refers to the order of the Supreme Court in the case of Mawarire v. The President and Others [see Bill Watch 19/2013 and Court Watch 7/2013] the effect of which was to order elections to take place no later than the 31st July
• states that the general public interest requires upholding the doctrine of the separation of powers, the principle of constitutionalism, and the supremacy of the Constitutional Court over the Executive in all matters concerning the interpretation of the Constitution
• refers to the need to align the Electoral Act with the new Constitution and to Cabinet’s approval of the needed amendments on 11th June
• states that it is inexpedient to await the passage through Parliament of an Act dealing with the situation.

What about the Electoral Amendment Bill?

This resort to the Presidential Powers (Temporary) Measures) Act does not necessarily mean that the Electoral Amendment Bill will not be taken to Parliament at all. The Minister of Constitutional and Parliamentary Affairs said in Parliament only yesterday that the Electoral Amendment Bill would be brought to Parliament next week.

The passing of a Bill to confirm today’s regulations is a legal necessity, given the fact that the Presidential Powers (Temporary Measures) 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.

Regulations a Stop-Gap Measure to Allow Election Proclamation?

In the circumstances, SI 85/2013 is presumably a stop-gap measure designed to allow the publication of a proclamation later today for an election to be held on or before the 31st July - probably even before that date.

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