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election decree unconstitutional
June 16, 2013
There has been
intense debate about the constitutionality of President Robert Mugabe’s
proclamation that was made using Presidential
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.
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.
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.
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.
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
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.
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”.
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
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.
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”.
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.
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.
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!
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
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.
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.
proclamation must be repealed
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.
is MDC Secretary for Legal Affairs
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