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Timing of swearing in of President-elect and new Parliament - Bill Watch 38/2013
Veritas
August 06, 2013

Presidential election result declared on Saturday 3rd August

On Saturday evening, 3rd August, two days ahead of the Electoral Act’s five-day deadline, the chairperson of the Zimbabwe Electoral Commission [ZEC], Justice Rita Makarau, announced the result of the Presidential election and declared Mr Mugabe “duly elected as the President of the Republic of Zimbabwe”.

The votes received by each of the candidates were:

* Mr Mukwazhe’s withdrawal from the race on 27th July came too late for his name to be omitted from the ballot papers.

Timing of the swearing-in of the President-Elect

Mr Mugabe is now President-elect. The next step is his swearing-in, which is the point at which he assumes his new office. Under the new Constitution, the swearing-in must take place on the ninth day after Saturday’s declaration by ZEC which is Heroes’ Day, Monday 12th August. [Note: The provision, still present in section 110 of the Electoral Act, that requires assumption of office by the President within 48 hours of the declaration of the election result, is overridden by the new Constitution.]

But, if an election petition challenging his election as President-elect has been lodged with the Constitutional Court within 7 days of the ZEC official declaration of the Presidential result, i.e., by the 10th August [new Constitution, sections 93 and 94] the swearing in does not go ahead. [Although all other election challenges go to the Electoral Court – a special pro tem court composed of High Court judges designated by the Chief Justice, a challenge to the Presidential elections must go to the Constitutional Court, composed of Supreme Court Judges presided over by the Chief Justice.]

If, as seems likely, there is such a court challenge – MDC-T have announced their intention of doing so, as well as challenging the whole electoral process as invalid – Mr Mugabe will continue as President-elect pending the Constitutional Court’s decision. The court’s decision must be given within 14 days [new Constitution, section 93(3)] and if it confirms Mr Mugabe as the winner of the election, he must be sworn in as President within 48 hours of the court’s ruling [section 94(1)]. But if the challenge is upheld and the election of the President is invalidated, a fresh election must be held within 60 days of the court’s ruling [section 93(4)(b)] and Mr Mugabe, Mr Tsvangirai and other members of the inclusive government would continue in their posts until the fresh election produced a result followed by a swearing-in [new Constitution, Sixth Schedule, paragraph 15].

Events dependent on the Presidential swearing-in

Full operation of new Constitution depends on the swearing-in

Until the swearing-in ceremony takes place and the President-elect, by taking the oath of office, assumes the office of President, the new Constitution remains only partly in operation [see Constitution Watch 26/2013 of 8th May 2013 on what has already come into effect]. As soon as the assumption of office occurs, the remainder of the new Constitution will come into operation and the repeal of the former Constitution will become fully effective. Which is why the new Constitution refers to the date of the swearing-in as the “effective date” [section 332 and Sixth Schedule, paragraph 3(2)].

Opening of Parliament

As soon as the President-elect is sworn in, the five-year life of the new Parliament will start to run. Its first meeting must be within 30 days of the swearing-in day, on a date and at a time fixed by the President [new Constitution, section 145].

National Prosecuting Authority

Also coming into effect on the day of the swearing-in will be Chapter 13 of the new Constitution, which makes all public prosecutions the responsibility of a new institution, the National Prosecuting Authority [NPA] to be headed by a Prosecutor-General. The current Attorney-General, if still holding that office immediately before the date of the swearing-in, will automatically be the first Prosecutor-General in terms of paragraph 19 of the Sixth Schedule to the new Constitution. Newspaper reports suggesting the NPA is already in existence are legally incorrect, as are reports saying the current Attorney-General is tipped to be given the job – the new Constitution has given him the job already, if he chooses to continue as Attorney-General until immediately before the effective date. It will, of course, be impossible for Mr Tomana to combine the two posts thereafter, because they clearly cannot be held by the same person.

National Assembly results

Constituency seats

All 210 National Assembly constituency results have been announced, as follows:

ZANU-PF - 159
MDC-T - 50
Independent - 1

These figures are subject to change, depending on the results of recounts and possible election petitions – dissatisfied contestants have 14 days in which to lodge election petitions.

Party-list seats for women

The allocation of these 60 seats among the participating parties has not yet been announced at time of writing.

These seats, 6 for each province, are allocated under a party-list system of proportional representation, as detailed in the amendments to the Electoral Act made by SI 85/2013. Their allocation depends on the total number of votes for all National Assembly constituency candidates received by each of the participating political parties in a province. The allocations are not based on the numbers of National Assembly seats won by the participating parties in a province. Section 45I of the Electoral Act makes the provincial elections officer responsible for deciding on the allocation of the party-list seats in his or her province, using the constituency returns received from the constituencies and following the rules contained the Eighth Schedule to the Act.

Note: This method of allocating party-list/proportional representation seats on the total tallies of votes received by participating political parties in each province, also applies to 60 of the 80 Senate seats [6 per province], and provincial council seats [10 seats on each of the provincial councils in the country’s 8 non-metropolitan provinces, i.e., every province except Harare and Bulawayo].

Effect of recounts and Electoral Court decisions on party-list allocations

If, as a result of a recount or the setting aside of a constituency election result by the Electoral Court, the number of votes cast for a participating political party in a province is altered, ZEC must have the allocation of party-list seats calculated afresh and, where appropriate, must alter the declaration of the successful candidates accordingly.

Senate results

Senator Chiefs

All 16 elected Senator chiefs have now been elected. The eight provincial assemblies of chiefs met on Friday 3rd July at provincial centres and each elected two chiefs to the Senate. The other two Senator Chiefs are the President and Deputy President of the Council of Chiefs, who are ex officio Senators.

Senators representing disabled persons

The 2 Senators to represent disabled persons were elected by an electoral college that met in Harare on Friday 3rd July.

Party-list Senators

ZEC’s announcement of the allocation of the 60 party-list seats among the participating parties is still awaited at time of writing [see above for how these seats are allocated].

A two-thirds Parliamentary majority for Zanu-PF?

Press reports have claimed that the National Assembly constituency results already guarantee Zanu-PF a two-thirds majority in both Houses of Parliament. Until, however, the party-list election results for the Senate and for the 60 party-list seats for women in the National Assembly are known, such claims are premature, because what really counts is a two-thirds majority of the total membership of each House.

What constitutes a two-thirds majority?

National Assembly - The National Assembly has 270 seats in all. 210 constituency seats plus the 60 party-list seats reserved for women, so a two-thirds majority would be 180 seats.

Senate - The Senate has 80 seats in all. So a two-thirds majority is 54 seats. 20 seats have already been filled – the 2 seats for representatives of disabled persons, and the 18 seats for Senator Chiefs. There remain the 60 seats to be filled by proportional representation.

Amending the Constitution: not everything is at the mercy of a 2/3 majority

Newspaper reports have said that winning a two-thirds majority in both Houses of Parliament will enable Zanu-PF to make any changes it desires to the new Constitution. That is not entirely accurate.

All Constitutional Bills require two-thirds majorities in both Houses of Parliament. And that is all that is required to amend a great deal of the Constitution. But some Constitutional Bills cannot be presented to the President for his assent and gazetting as law until they have also been approved by a majority of voters voting in a national referendum [new Constitution, section 328]. The Bills subject to this additional approval by referendum are Bills that seek to amend any provision of:

• Chapter 4 [the Declaration of Rights]
• Chapter 16 [Agricultural Land]
• Section 328 itself [the section which provides for the additional referendum procedure].

Note: If MDC-T decide to boycott Parliament, the two-thirds majority necessary for constitutional amendments remains unchanged – two-thirds of the total membership of each House, as stipulated by the Constitution.

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