STATEMENT REGARDING THE USE OF PRESIDENTIAL POWERS TO AMEND THE ELECTORAL ACT AND THE PRESIDENTIAL PROCLAMATION OF ELECTION DATES

Whilst we are barred by the Officials Secrets Act from going into the precise details of what happened in Cabinet this week suffice it to say that, as Minister Chinamasa has already revealed, both the voter registration exercise and the new Electoral law were discussed. In the course of the proceedings it was confirmed, for example, that the intensive voter registration exercise mandated by section 6 of the 6th schedule of the Constitution had started on the 10th June and would end on the 9th July. Numerous deficiencies in the process were discussed and Minister Chinamasa gave an undertaking that the problems would be addressed. There was a long and detailed debate regarding the new Electoral Law Amendment Bill. Numerous, albeit mostly relatively minor, amendments were made. There was one major sticking point and it looked as if there would be deadlock. However even that was finally resolved.

At the conclusion of the debate our clear understanding was that all the changes would be incorporated in the Electoral Law Amendment Bill which would then be taken to Parliament for passage. There was never any mention or even suggestion of the Presidential Powers Act being used to promulgate this legislation. All of us were content in the knowledge that we would be able to check in Parliament that the agreed amendments had in fact been incorporated into the final Bill. Our expectation was that the Bill would come to Parliament this coming week and that we would pass it expeditiously. 

It was also very clear in the course of the debate that with the intensive voter registration exercise only ending on the 9th July and with all the other legal and constitutional requirements having to be respected that it was going to be impossible to have an election by the 31st July. Although not discussed it would have been obvious to all that the only way to resolve the constitutional impasse would be for Government to go back to the Constitutional Court to seek a review of its order handed down on the 31st May 2013.

In these circumstances it was profoundly shocking to receive the news on Thursday that the President had used the Presidential Powers Act to issue a regulations purporting to promulgate new electoral laws and that he had proclaimed the election dates. Aside from the fact that this is illegal, for reasons which will be elaborated on, it was also profoundly deceptive and unbefitting any Head of State who is obliged to respect both the spirit and letter of the Constitution. If there were any concerns about the need to expedite the process the correct thing to do would have been to debate in Cabinet about measures which could be taken to expedite the process by, for example, requesting Parliament to extend its sittings and if needs be to extend through to Friday to pass the Bill, which Parliament is entitled to do in terms of its Standing Orders.

However this was not done and it is clear why this is so – there is at least one measure in the Presidential electoral regulations made in terms of the Presidential Powers Act which was not agreed to by Cabinet – namely the repeal of Section 27A of the existing Electoral Act which states that one can register as a voter up until 24 hours PRIOR to the Nomination day. The reason for this measure is because of the anomaly created by virtue of the fact that voter registration in some Wards only begins AFTER the nomination court has sat on the 28th June in terms of the Presidential decree! Accordingly to get around this problem the decree abolishes that provision effectively prejudicing all those voters who will only be able to register (and therefore stand for election) after the nomination court has already sat! In other words this is a amendment that would not have got past the Parliamentary Legal Committee because it is such a serious breach of the Constitutional enshrined right of all citizens to register as voters and to stand for election.

Be that as it may the Presidential decrees are themselves illegal and unconstitutional for the following reasons:

1. 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 Parliament in this proclamation: instead, he is allowing Parliament to run on until its five-year term expires automatically on 29 June. 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.

2. 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 the 31st July 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 judgment. As a reminder the Chief Justice himself stated in his judgment 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. As we know from the Bhebhe cases (seeking the holding of by-elections) the President has recently gone back to our courts to seek a postponement for the holding of by-elections and has been successful. Accordingly there are recent precedents in both our Presidential practice and jurisprudence to seek variations of court orders regarding election dates. It is inconceivable that the Constitutional Court, having been presented with evidence by the President of the impossibility of holding elections in compliance with the Constitution, would have ruled against him. In any event it is only once that course of action had failed that the use of the Presidential Powers Act should even be considered. In other words the urgent situation would only arise once such an application to court had failed.

3. 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 3 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. Parliament sat on Wednesday and in terms of Standing Orders could have sat until Friday. Indeed the only thing holding up the presentation of the Bill to Parliament would have been the incorporation of the changes agreed to by Cabinet. It is clear that the Minister of Justice was able to do those changes (and more) prior to the publication of the Presidential proclamation on Thursday so he could have done the same for Parliament. In other words there it was simply not inexpedient on the grounds of “urgency” to await the passage of the Bill through Parliament. What was inexpedient was to have to take changes to the Electoral Bill to Parliament which had not been agreed in Cabinet and which were unconstitutional (ie the repeal of Section 27A which serves to negate the Constitutional rights granted by sections 43 and the 6th schedule for tens of thousands of so called aliens – people born in Zimbabwe to foreign parents – to be registered as voters and to stand for election).

4. 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.

5.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.

6. 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 (eg the repeal of Section 27A) made by the Minister of Justice 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.

7. 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 13th June, 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 the 28th June, namely on or about the 9th August! There are of course many other provisions of the old law which are completely inappropriate, for example to proportional representation, but this simply demonstrates the farcical situation we have been placed in by this illegal act.

8. Three further Statutory Instrument 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 best of intentions these problems cannot be addressed.

We should reiterate that the original problems identified by us regarding holding the elections before the 31st July remain. The attempt to circumvent the provisions of section 6 of the 6th schedule (ie the provision which allows the tens thousands of new citizens to register and if needs be to stand for election) is at the heart of these machinations. ZANU PF had no option but to accept in the Constitutional reform process that people born in Zimbabwe, albeit whose parents came from our SADC neigbours, should be entitled to citizenship. They could not argue against that because it runs contrary to the provisions of all of our neighbours’ constitutions which allow these fundamental birth rights. However they never wanted to extend these citizenship rights because they fear, quite rightly, what will happen when the tens of thousands who have been disparagingly termed as “aliens” by ZANU PF for so long are given the right to vote. They also fear the hundreds of thousands of young people who would be able to register as voters and those who would be able to stand for election if the intensive voter registration exercise was allowed to run its proper course. They also fear what would happen if sufficient time was given to inspect and analyse the voters roll. Accordingly this rush and these machinations are designed to make it difficult for certain people to register and to make it impossible for parties opposed to ZANU PF to audit the voters roll prior to the election.

There is no doubt that the pre-existing Constitutional crisis created by 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. 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. Parliament must simultaneously convene urgently to pass the Electoral Laws Amendment Bill. 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. We will only restore legality to the entire process and resolve the Constitutional crisis if all these measures are taken.

Senator David Coltart
Secretary for Legal Affairs
MDC

15th June 2013

We are grateful for Veritas. We have drawn on their publication Bill Watch in drafting this statement.