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of swearing in of President-elect and new Parliament - Bill Watch
August 06, 2013
election result declared on Saturday 3rd August
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
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:
||1 172 349
* Mr Mukwazhe’s
withdrawal from the race on 27th July came too late for his name
to be omitted from the ballot papers.
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
dependent on the Presidential swearing-in
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,
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].
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.
All 210 National Assembly constituency results have been announced,
ZANU-PF - 159
MDC-T - 50
Independent - 1
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.
seats for women
The allocation of these 60 seats among the participating parties
has not yet been announced at time of writing.
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].
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.
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.
The 2 Senators to represent disabled persons were elected by an
electoral college that met in Harare on Friday 3rd July.
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].
Parliamentary majority for Zanu-PF?
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.
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.
the Constitution: not everything is at the mercy of a 2/3 majority
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.
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:
4 [the Declaration of Rights]
- Chapter 16
- Section 328
itself [the section which provides for the additional referendum
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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