PRESIDENT Robert Mugabe seems to have perfected the art of abusing the draconian Presidential Powers (Temporary Measures) Act (PPTM Act) to make far-reaching changes to electoral laws to suit his political agenda before every election, analysts say.
Report by Brian Chitemba
According to Section 2(1)(c) of the Act, 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”.
However, Mugabe, before every election, particularly since 2000, has always resorted to the emergency powers to change the rules of the game.
Despite attempts in the new constitution to restrict the use of the powers of decree, Mugabe last week unilaterally amended the Electoral Act through an extraordinary Government Gazette Statutory Instrument 85 of 2013 to pave way for the proclamation of elections dates and self-serving changes to the law. He has always done this before every election.
Before the 2008 elections, Mugabe enacted Statutory Instrument Number 46 of 2008 in a move which his rival, MDC-T leader Morgan Tsvangirai said showed “everything that is wrong with this election in particular and Zimbabwe in general”.
The regulations sought 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 January 11 2008, was a piece of law negotiated between the MDC parties and Zanu PF during the Sadc-sponsored talks facilitated by former South African president Thabo Mbeki.
That piece of legislation was agreed to and signed by the parties in Pretoria on October 30 2007 and presented to Sadc through Mbeki on the very same day. Those amendments, together with changes 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 December 20 2007 and gazetted on January 11 2008, were hotly contested.
“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,” MDC-T secretary-general Tendai Biti said at the time.
“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.”
The PPTM Act came into force in 1987 when Mugabe became executive president after the abolition of the ceremonial presidency and prime ministerial posts. The architect of legislation was the late Justice minister Eddison Zvobgo.
Since then, Mugabe has been abusing the PPTM Act to make changes before elections to ensure his re-election.
After realising that Zanu PF’s urban support base was waning, Mugabe invoked the PPTM Act in 1995.
Prior to the 2002 presidential elections, he was at it again as he used his presidential powers to introduce a raft of amendments to the Electoral Act which influenced the running and outcome of the polls.
Barely 24 hours before the polls, Mugabe invoked the PPMT Act to make a cocktail of changes to Section 158 of the Electoral Act resulting in the disenfranchement of “aliens”, banning of postal votes, limiting the number of polling stations in urban centres and extending the voter registration campaign in Zanu PF strongholds.
The MDC-T challenged Mugabe’s controversial actions in the Supreme Court, but the case was thrown out a month after the elections.
In similar fashion last week, Mugabe used his powers to amend the Electoral Act and smuggled in a provision which extends the voter registration exercise by 12 days after nomination day.
Section 26A of the Electoral Act 2:13 initially provided that voter registration be finalised 24 hours before the nomination court sits after which 44 days must elapse between the proclamation of election dates and polling day.
Mugabe abused his contentious powers to meet the July 31 election deadline as ordered by the Constitutional Court (Concourt).
MDC secretary for legal affairs David Coltart, who is a lawyer, criticised Mugabe for using the presidential powers last week describing his move as “unconstitutional” since Section 157(1) states that only an Act of parliament can be used.
He argued Section 2(1)(c) of the PPTM Act provides that the president shall only issue a decree in urgent cases which cannot await parliamentary debate, but last week’s proclamation was not necessary as parliament is still sitting until June 29.
If changes to the Electoral Amendment Bill were urgent, parliament could have convened immediately to pass the amendments agreed to at last week’s cabinet meeting.
“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,” Coltart said.
“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.”
However, constitutional lawyer Lovemore Madhuku defended Mugabe’s use of presidential powers saying he by-passed parliament to comply with the Concourt ruling.
But Constitutional and Parliamentary Affairs minister Eric Matinenga insisted Mugabe acted “unconstitutionally”.
Sadc leaders resolved last weekend Mugabe’s amendments must be reversed and done through parliament.