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Election date proclamation - Bill Watch 22/2013
Veritas
June 13, 2013

This afternoon [13th June 2013] the President published a proclamation announcing dates for the forthcoming general election. This followed this morning’s gazetting of Presidential Powers (Temporary Measures) Regulations to amend the Electoral Act [see Bill Watch 20/2013].

The dates fixed by the proclamation are as follows:

• Nomination day will be 28th June for the presidential election and for the elections of members of the National Assembly and local authorities. [Note: Under section 45C of the Electoral Act, as amended by the Presidential Powers regulations, this will also be the date on which parties must file their lists of candidates for election as party-list Senators, members of the National Assembly and provincial councils.]
• Polling day will be 31st July for the Presidential, National Assembly and local authority elections.
• Polling day for the run-off Presidential election, if a run-off election is needed, will be 11th September.
• Election of Senator Chiefs will be on 2nd August, when the provincial assemblies of chiefs will assemble on to elect their quotas of Senator chiefs.

The proclamation has caused a stir, to put it mildly. The Prime Minister was apparently taken by surprise and has issued a statement strongly condemning the President’s failure to consult him before issuing the proclamation.

Legality of the Election Proclamation: Lack of Consultation

In issuing an election proclamation, the President is obliged to act on the advice of the Cabinet. This is laid down by section 31H of the Lancaster House Constitution, a provision that is still in force. Although that section allows the President to act on his own initiative when dissolving Parliament, the President is not dissolving Parliament in this proclamation: instead, he is allowing Parliament to run on until its five-year term expires automatically on 28 June. So he should have obtained the agreement of the Cabinet, at least of a majority of the Ministers, before issuing the proclamation. Quite obviously he did not do so. On that ground alone, the proclamation is legally void.

Problems Arising from the Proclamation

By issuing an election proclamation, the President has prevented any further amendments being made to the Electoral Law, in so far as it will apply to the forthcoming election. Under section 157(5) of the new Constitution, after an election has been officially proclaimed no change to the Electoral Law has effect for the purpose of that election. So whatever deficiencies there may be in the amendments that have been made to the Electoral Act by the Presidential Powers regulations, the election will have to be held in accordance with them – assuming of course that they have been validly made. If they have not been validly made, then we will be stuck with the Electoral Act as amended last year, which everyone accepts is completely inadequate for the purpose [e.g. there is no provision for proportional representation].

It may well be that the regulations have not been validly made for the following reasons:

• The regulations, like the proclamation, appear to have been made without the authority of Cabinet, indeed without consultation with Cabinet. They seem to have caught the Prime Minister and other Ministers from his party completely by surprise. Like the election proclamation, the regulations required the authority (i.e. the approval) of Cabinet, before the President could make them.
• The Presidential Powers (Temporary Measures) Act states in section 2(2) proviso that regulations made under the Act “shall not provide for any of the following matters or things,” including (c) “... any matter or thing which the Constitution requires to be provided for by, rather than in terms of an Act.” And the new Constitution requires that the new provisions for the Electoral Law be passed by Parliament and not made by regulation in terms of another Act such as the Presidential Powers (Temporary Measures) Act

If an election date proclamation had not been made, the regulations could have been confirmed by the passage of an Electoral Amendment Act through Parliament next week – but now a proclamation has been made, this is now impossible [see above]

• The regulations were published during the morning of 13th June, the proclamation was published in the afternoon. Under section 20 of the Interpretation Act, statutory instruments are deemed to have been published on midnight on the day on which they appear in the Gazette. So on that basis, the regulations and the proclamation were published simultaneously, and the regulations cannot be said to have had effect before the election was called. Hence, under section 157(5) of the new constitution, they must be disregarded.

If the Election Proclamation is Invalid – What Then?

There are several scenarios that may play out if the election proclamation is found to be invalid. Two of them are:

• SADC Heads of State and Government, meeting on Saturday, may exert sufficient pressure on the President to oblige him to rescind it.
• The MDC parties, who were not consulted about the election dates, may decide to boycott the election. This would lead to an election which would have questionable credibility within the country and even less outside.

If the Proclamation is Valid – Then What?

Even if the election proclamation is found to be valid, there may be insuperable obstacles to holding the election on the dates prescribed in it:

• The problem with the Election Amendments Regulations described above.
• There is not enough money to pay for the election. The Minister of Finance has said this repeatedly. It is most unlikely that foreign donors will be willing to contribute towards the costs of the election, if it is held on dates fixed by the President unilaterally and under a law which he has enacted unilaterally.
• There may not be enough time for the Zimbabwe Electoral Commission to organise both voter registration exercise overlapping with election preparations effectively, even if funds can be found to pay for it.

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