Mugabe resorts to powers of decree

IN a bid to meet the deadline set by the Constitutional Court (Concourt), President Robert Mugabe yesterday proclaimed elections will be held on July 31 as he controversially resorted to draconian Presidential Powers (Temporary Measures) Act (PPTM Act) to fulfil his self-serving political agenda for polls on his terms.

Report by Owen Gagare

Mugabe declared the Nomination Court would sit on June 28, while elections would be held on July 31. In the event no outright winner emerges in the first round of the presidential poll, he said a runoff would be held on September 11.

Mugabe’s move took his political opponents by surprise as they disclosed during Tuesday’s cabinet meeting he had agreed to follow all the processes laid down in the new constitution, meaning polls would possibly to be held in August at the earliest.

The PPTM Act empowers the president, subject to certain limitations, to make regulations amending an Act of Parliament when it is inexpedient to wait for parliament to pass an amendment Act because of the urgency of the situation.

Justifying the invocation of the PPTM Act, Mugabe referred to the Concourt ruling ordering that polls be held by July 31.

He also stated that public interest requires upholding the doctrine of the separation of powers, the principle of constitutionalism, and the supremacy of the Concourt over the executive in all matters concerning the interpretation of the constitution, hence his moves to ensure compliance.

Mugabe said it was inexpedient to await the passage of the Electoral Act through parliament because of the Concourt deadline.

Veritas, a lawyers’ grouping which monitors parliamentary activities, said Mugabe’s use of the PPTM Act does not necessarily mean that the Electoral Amendment Bill will not be taken to parliament.

Crucially though Mugabe, by using his emergency powers, has erased the possibility of the Bill being delayed by debates in parliament, which would have militated against his wish for a July 31 election.

“The passing of a Bill to confirm today’s regulations is a legal necessity, given the fact that the Presidential Powers (Temporary Measures) Act says that it cannot be used to do by regulation what the constitution says must be provided for “by, rather than in terms of, an Act of Parliament,” said Veritas.

“And the new constitution requires just that, for instance, Section 120 refers to elections ‘in the manner prescribed in the Electoral Law’, and the election of Senators having to be ‘in accordance with the Electoral Law’, that is, the Act of Parliament regulating elections.

“In the circumstances, SI 85/2013 is presumably a stop-gap measure designed to allow the publication of a proclamation later today for an election to be held on or before the July 31 — probably even before that date.”

Earlier, Veritas had noted that it would almost be impractical for Mugabe to meet the July 31 deadline given the little space he has to manoeuvre in.
The grouping and other legal experts had argued that for Mugabe to comply with the ruling, he should proclaim elections by Monday, June 17, given the nomination court could only sit 14 days after proclamation, while elections can only be held 30 days after sitting of the nomination court.

The proclamation was not to be made by making a public statement but through gazetting in line with Section 157(3) of the new constitution and the Electoral Law.

In addition, the Electoral Amendment Bill making appropriate amendments to the Electoral Act first had to be passed by parliament before Mugabe could proclaim, but he has since resorted to the PPTM Act to cut short the process.

This is because the Electoral Law (Act and Regulations) cannot be changed after the electoral proclamation. Section 157(5) of the new constitution provides 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 those elections”.

The Electoral Act had to be changed to accommodate the election of 60 women members of the National Assembly under a party-list system of proportional representation as well as 60 Senators, among other things”.

“The significance of this is that until an Electoral Amendment Bill making appropriate amendments to the Electoral Act has been passed by parliament, assented to by the president and gazetted, it will not be legally possible for the president to proclaim the elections date,” it said.

The new constitution stipulates that a 30-day intensive voter registration exercise must precede nomination day. The programme began on Monday and should end on July 9. After proclamation the Nomination Court was meant to sit after two weeks and a month before polls could be held.

If the constitution was to be followed to the letter, the president could only proclaim elections after the voter registration exercise was completed. Mugabe, though, repealed Section 26A of the Electoral Act to allow the voters roll to close 12 days after nomination day, presumably to allow the parties a month to campaign while also trying to meet the July 31 deadline.

Veritas though is questioning whether the country can hold credible elections without complying with the new constitution, while Zec’s ability to organise elections at short notice is doubtful.

“It would be sad if the first elections under the new constitution were to be spoilt by inadequate time, lack of funding, an incomplete or unsatisfactory voters’ roll, or too little time for Zec to satisfactorily arrange the logistics associated with such a large project,” said the grouping.

“Zimbabwe desperately needs elections that are credible within the country, and within Sadc and the international community.”

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