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Mugabe’s election decree unconstitutional
David Coltart
June 16, 2013

http://www.thestandard.co.zw/2013/06/16/mugabes-election-decree-unconstitutional/

There has been intense debate about the constitutionality of President Robert Mugabe’s election proclamation that was made using Presidential Powers.

Senator David Coltart points out why he considers Mugabe’s action profoundly deceptive and unbefitting of a Head of State who is obliged to respect both the spirit and letter of the Constitution.

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 old Zimbabwean 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 has not sought to consult Parliament in this proclamation: instead, he is allowing Parliament to run on until its five-year term expires automatically on June 29.

The President should have obtained the agreement of the cabinet, at least of a majority of the ministers, before issuing the proclamation which did not happen. Accordingly, the election proclamation itself is illegal and unconstitutional.

The Presidential Powers Act is only to be used in urgent situations. Section 2 deals with the making of “urgent regulations” and situations which need to be “dealt with urgently”. It has been clear for over two weeks that the time frame set by the Constitutional Court to hold the election by July 31 2013 could not be respected in compliance with the Constitution.

There has been and still remains ample time to go back to the Constitutional Court to request that it review its judgement. As a reminder, the Chief Justice himself stated in his judgement that the court should not make orders which will result in the President having to breach other electoral provisions. In other words, the correct way to deal with the situation would have been to go back urgently to the Constitutional Court.

Section 2(1)(c) of the Presidential Powers Act states the President shall only issue a decree if “because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation”.

As pointed out above, had the three parties in Parliament been consulted about the “urgency”, there is no doubt that Parliament could have been convened urgently to debate and pass the Electoral Amendment Bill in the form it had been approved of by Cabinet on Tuesday.

Section 2(2)(c) of the Presidential Powers Act states that regulations cannot be made for any “matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act”. Section 157(1) of the new Constitution states that “An Act of Parliament must provide for the conduct of elections”.

In other words, the new Constitution specifically requires that the matter of electoral process be provided for by an Act. In other words, the Presidential Powers Act, as undemocratic as it is, cannot be used for this type of matter even if it is deemed urgent. l The flip side of the same coin is that Section 157(1) states that an “Act of Parliament” must provide for the conduct of elections. Section 2(1) makes it quite clear that the President can only issue “regulations”.

Regulations are not an Act of Parliament. As I have said elsewhere, a regulation issued in terms of the Presidential Powers Act is not an Act of Parliament; it is but an Act of the President.

The reason for the specific inclusion of this specific clause in the Constitution was to ensure that there was not the arbitrary and Nicodemian use of Presidential decrees to change the playing field in favour of one party, which ironically is precisely what has happened this week.

l Section 157(4) of the Constitution states that “no amendments may be made to the Electoral Law unless the Zimbabwe Electoral Commission has been consulted and any recommendations made by the Commission have been duly considered”.

As stated above, many changes were made to the Electoral Law Amendment Bill by Cabinet and there was at least one unilateral change (e.g the repeal of Section 27A) made by the Justice minister as late as Tuesday afternoon.

I suspect that there was no consultation made with the Zimbabwe Electoral Commission regarding these last minute changes and if that is so, that alone would render them all unconstitutional.

Section 157(5) states that “after an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election”.

The regulations were published during the morning of June 13, 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.

Accordingly, in terms of Section 157(5). these changes to the law have to be disregarded. If that is so, then the existing provisions of the Electoral Law apply.

For example Section 11 of the Electoral Amendment Bill 3 of 2012, which amended section 38 of the original Electoral Act, states that there has to be not less than 42 days between the nomination day and the election. Accordingly, if this law is to be respected, the election will have to be 42 days after June 28, namely on or about August 9!

Three further Statutory Instruments have been published since the amendments to the Electoral Law and the Proclamation of the Election were published in Statutory Instruments 85/2013 and 86/2013 respectively.

These are the Electoral (Amendment) Regulations 2013 (number – SI 87/2013, the Electoral (Nomination of Candidates) Regulations 2013-SI 88/2013 and the Electoral (Accreditation of Observers) Regulations 2013-SI 89/2013.

Clearly, under any interpretation of the law both from the timing of their publication and their SI numbering, they were gazetted after the Presidential Proclamation of the Electoral dates (SI86/2013) and therefore have no effect in terms of Section 157(5) of the Constitution.

It should be noted in this regard that in terms of section 332 of the new Constitution, a “law” includes any provision of a statutory instrument.

Indeed because of the purported proclamation, no further amendment to the Electoral laws are possible and give the chaos which now prevails in the entire electoral process. This will mean that even with the best of intentions, these problems cannot be addressed.

There is no doubt that the pre-existing Constitutional crisis created by the government’s inability to hold elections by the 31st July 2013 in compliance with the Constitution has now been greatly exacerbated by this rash move.

Presidential proclamation must be repealed

The President has been advised very poorly and those responsible for this poor advice should be held to account.

If the election goes ahead in terms of the current arrangement, it will be plainly unconstitutional and illegal.

That in turn will plunge Zimbabwe into further disarray which is not in the interests of anyone, save perhaps for the small cabal of hardliners who are behind these measures.

The only way out of this crisis is for the President to repeal the measures introduced by Presidential proclamation and for Government to apply to the Constitutional Court for its order to be reviewed to ensure that our elections are held in compliance with the Constitution.

Once we have secured an order from the Constitutional Court and the Electoral Act has been passed by Parliament and signed by the President, election dates should be proclaimed in terms of the new valid Act.

Coltart is MDC Secretary for Legal Affairs

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