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authorities: Is their early demise and the ignoring of new council
boundaries constitutional - Constitution Watch 31/2013
July 04, 2013
There has been
much controversy about constitutionality of the amendment of the
Election Law by
Presidential Powers regulation and the subsequent court challenges
which are before the Constitutional Court today.
With the welter
of news about these challenges and the nomination of Presidential
and parliamentary candidates for the forthcoming election, perhaps
the constitutionality of what is being done in the lead up tothe
local authority elections has not been thoroughly questioned.
Zimbabwe are “harmonised”, and voters will be called
upon to vote not only for a new President and Parliament but also
for councillors of local authorities and these also must be held
within the terms of the Constitution.
Two recent announcements
give cause for concern:
- The first
is a report that the Minister of Local Government, Rural and Urban
Development has appointed caretakers and commissions to run all
local authorities following their “automatic dissolution”
on the 29th June.
- The second
is an advertisement by the Zimbabwe Electoral Commission [ZEC]
to the effect that the electoral boundaries for local authority
elections will be those delimited in 2008.
Dissolution of Local Authorities?
a report in The Herald, the Secretary for Local Government sent
a letter to all local authorities saying that “in terms of
section 58(1) of the existing Constitution
of the Republic of Zimbabwe, all councils shall be dissolved by
the affliction of time [sic: the error may be the reporter’s,
not the Secretary’s] on 29 June, 2013.” To avoid disruption
of local services, the Secretary said that caretakers and commissions
would be appointed to run the local authorities until the election
of new councillors.
It seems clear
that the Secretary and, presumably, his Minister were acting in
the belief that since the life of Parliament came to an end on the
29th June, the terms of office of all local authority councillors
also came to an end. Is that so?
of the former
Constitution [viz. the Lancaster House Constitution], which was
cited by the Secretary, says nothing about the dissolution of local
authority councils; all it says is that a general election and “elections
for the governing bodies of local authorities” must be held
on a date fixed in a Presidential proclamation.
In any event, section 58 is no longer in force, having been superseded
by the new constitution when it was published on 22nd May [this
is by virtue of paragraph 3(1)(e) of the Sixth Schedule to the new
Constitution]. The equivalent provision of the new Constitution,
section 158, is substantially the same: it lays down the time-limits
for elections and states that general elections to local authorities
must take place concurrently with presidential and parliamentary
general elections. Nowhere does either provision - sec 58(1) or
158 - state that local authority councils have the same life-span
as Parliament; indeed there is no such provision in either Constitution.
Nor is there a provision in either Constitution setting any limit
to the life of local authorities.
seems to have assumed, from the fact that parliamentary and local
authority elections are harmonised, that local councils are automatically
dissolved when Parliament
is dissolved. That is a heroic assumption, to put it mildly. Neither
the old nor the new Constitution says so expressly, and the fact
that elections for different institutions are held together does
not necessarily mean that the office-bearers in those institutions
must serve the same terms. After all, the President and members
of Parliament are elected at the same time but while Parliament
has died but the President’s term has not come to an end.
He and his Ministers continue in office and will do so until after
the next election.
it had been intended that local authorities expire when Parliament
expires, one would have expected a specific statement to that effect
in the constitution or in an Act of Parliament.
There is nothing
in the Electoral Act or the Urban
Councils Act that sets specific time-limits on councillors’
terms of office; this is not surprising in view of the constitutional
provisions that require council elections to be harmonised with
Presidential and Parliamentary Elections. The Rural District Councils
Act], on the other hand, does set a limit. Section 30(1) of the
elected councillor shall assume office as a councillor on the day
following the day of his election, and … shall hold such office
until the day following the day on which a new councillor is elected
for the ward concerned.”
In other words,
councillors remain in office until their successors have been elected
- and, quite clearly, the councils themselves remain in place from
one election to the next, because one cannot have councillors if
there are no councils for them to sit on.
the Secretary’s letter to local authorities was based on legal
advice, then the advice was questionable at best in regard to urban
councils and downright wrong in regard to rural district councils.
of Local Authority Wards
advertisement, issued by the Chief Elections Officer, stated:
the publication of any proclamation creating new local authorities
… the electoral boundaries as determined by the Zimbabwe Electoral
Commission in its 2008 delimitation report will apply for the 2013
In most cases
it will be sensible for ZEC to base the forthcoming local authority
council election on the 2008 delimitation of wards, because in most
cases they have not been any changes. Paragraph 5 of the Sixth Schedule
to the new Constitution waived the usual need for a fresh countrywide
delimitation based on population changes, as it was anticipated
there would be no time for this between the publication date of
the new Constitution and the forthcoming elections – a countrywide
delimitation exercise is usually done before new elections but it
is a time-consuming process that should be completed at least three
months before an election. BUT paragraph 5 does not say that the
2008 electoral boundaries must be used. What it says is:
of provinces, constituencies and wards as they were immediately
before the publication day [i.e. 22 May 2013] apply for the purposes
of the first election.”
So ZEC may use
the 2008 boundaries only to the extent that they were not altered
between 2008 and 22nd May 2013. If they ignore those alterations,
as the advertisement clearly suggests they intend to do, they will
be acting illegally in contravention of pararaph 5 of the Sixth
Schedule to the Constitution.
it will surely be impossible for ZEC to ignore all the post-2008
boundary alterations. New councils have been established: Mbire
and Mhondoro-Ngezi Rural District Councils, for example, and Mvurwi
Town Council in 2010, and their new boundaries will have to be taken
into account if meaningful elections of councillors are to be held.
Because it will
be both illegal and in some cases impossible for ZEC to ignore changes
to electoral boundaries, it is probable that the advertisement does
not accurately reflect ZEC’s true intention. If so, it will
be in the public interest for ZEC to clarify as soon as possible
what it really means to do.
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legal responsibility for information supplied
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