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Zimbabwe's Elections 2013 - Index of Articles
date proclamation - Bill Watch 22/2013
June 13, 2013
[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:
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
day will be 31st July for the Presidential, National Assembly
and local authority elections.
day for the run-off Presidential election, if a run-off election
is needed, will be 11th September.
of Senator Chiefs will be on 2nd August, when the provincial assemblies
of chiefs will assemble on to elect their quotas of Senator chiefs.
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.
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.
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
- 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
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
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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