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Statement on SI46/2008, Presidential Powers (Temporary Measures) (Amendment of Electoral Act)
Movement for Democratic Change
March 19, 2008

The enactment by President Robert Mugabe of Statutory Instrument No. 46 of 2008 being the Presidential Powers (Temporary Measures) (Amendment of the Electoral Act) regulations of 2008 summarizes everything that is wrong with this election in particular and Zimbabwe in general. The above regulations seek to amend Sections 55, 59 and 60 of the Electoral Act Chapter 2:13 as amended by the Electoral Laws Act Amendment No. 17 of 2007. Amendment No.17 to the Electoral Act, which became law on the 11th of January 2008, was a piece of law negotiated between the MDC and Zanu PF during the SADC sponsored talks facilitated by President Mbeki. That piece of legislation was agreed to and signed by the parties in Pretoria on the 30th of October 2007 and presented to SADC through President Mbeki on the very same day. Thus, it could be said, without hesitation that, that amendment together with amendments to the Public Order and Security Act, Access to Information and Protection of Privacy Act and the Broadcasting Act which were all passed in Parliament on the 20th of December 2007 and gazetted on the 11th of January 2008 are SADC documents contractually agreed between the MDC and Zanu PF.

Before the SADC dialogue, the law allowed policeman and members of the defense forces to assist the Zimbabwe Electoral Commission (ZEC) and most importantly allowed policeman to be present at any polling station. Further, in terms of section 59 and 60, the presence of the police was required when an official assisted a physically incapacitated voter. During the SADC negotiations, the MDC's position was that the police had been abused and used systematically to generate intimidation and threats. Furthermore, it was argued that it was intimidatory to have an illiterate or physically incapacitated voter vote in the presence of a police officer. Zanu PF through its negotiators, Patrick Chinamasa and Nicholas Goche accepted the unquestionability of this argument hence agreements on new provisions that removed any reference to the police officers.

What President Mugabe has therefore done in the above regulation is to bring the old order and allow police officers back into polling stations but most importantly allowed incapacitated voters to vote in the presence of police officers.

Quite clearly, the re-enactment of the old law confirms the presence of the mischief that we had dealt with in the SADC dialogue. The mischief being that police are indeed used as a weapon of intimidation in the Zanu PF power retention agenda. Secondly, in our view, it is unacceptable that Mugabe, a participant in this election can change the rules of the game when the game is being played. Surely, one cannot be a player and a referee at the same time. One cannot play tennis with continuously moving the baseline. Thirdly, sight must not be lost of the fact that it was Parliament that enacted the new law on the 20th of December 2007. For President Mugabe to place himself above Parliament and bulldoze his way, as he has always done, reflects the sickness of this establishment. How can one man be above the law and play god with all of us. This election represents a turning point for Zimbabwe, Mugabe has no right to privatize the same and treat this nation as Zimbabwe Private Limited with one shareholder, Robert Gabriel Mugabe.

What is disturbing is that the Electoral Act Chapter 2:13 section 192 only allows the Zimbabwe Electoral Commission powers of making electoral regulations. The granting of powers to make regulations in terms of section 192 means that no one has regulatory powers. In our view therefore, Mugabe's regulations are unlawful in that he has usurped the laws of ZEC under section 192 of the Electoral Act.

Over and above, Mugabe's appetite of making Presidential decrees through his legendary abuse of the Presidential Powers (Temporary Measures) Act Chapter 10:20 is unacceptable as it is a clear breach of the rule of law. It is quite clear that his powers to make laws using the Presidential Powers are very limited. The President can only make regulations when it appears to him that the situation that has arisen or is likely to arise needs to be dealt with in the interest of defense, public security, public health, the economic interests of Zimbabwe or the general public interest. How disallowing or allowing a policeman into the polling station can be regarded as a national emergency eludes one's wisdom.

It is our respectful contention therefore that the above presidential contentions are clearly ultra vires the Electoral Act and the Presidential Powers (Temporary Measures) Act. In addition, in any event, allowing Mugabe to make decrees is a breach of the doctrine of the separation of powers. Put simply, the Presidential Powers (Temporary Measures) Act is itself clearly unconstitutional and there is only one law making body in Zimbabwe that is the Parliament.

Lastly, it is quite clear that Mugabe's actions are an assault on the SADC dialogue therefore an assault on SADC itself. Mugabe is clearly daring SADC knowing clearly that the latter will blink. Unfortunately it does not appear likely that anyone in SADC would have the guts to stand up to Mugabe. It is obvious that the old-boys mentality which African institutions have been accused of generating still remains the operational matrix. It is therefore not a surprise that the SADC Observer Mission in Zimbabwe can state that the election will be free and fair despite the gross and evident electoral abuse. Of that abuse none is more obscene than Chapter 2:13.

Tendai Biti, Hon.
MDC Secretary General

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