PARLIAMENT’S chances of amending the Electoral At to reverse President Robert Mugabe’s unilateral changes to the law have all but evaporated as the parliament’s five-year term expires at midnight today.
The Maputo Sadc summit communiqué had highly raised expectations of the MDC formations that Mugabe’s amendments made through a statutory instrument under the controversial Presidential Powers (Temporary Measures) Act would be reversed in parliament.
Justice minister Patrick Chinamasa was last week on Tuesday expected to table before parliament the changes for formal adoption before the expiry of its term. The MDC parties are complaining Mugabe’s use of the Presidential Powers (Temporary Measures) Act to effect the Electoral Law amendments was unconstitutional and illegal since parliament was still in session.
They said the powers of decree could not be used to make substantive changes to legislation as they deal with regulations, besides that they could not be made when parliament was still active.
Legal analysts say the new constitution provides that an Act of Parliament must make provision for the conduct of all elections provided for by the new constitution.
A substantial part of the law under which it is proposed to conduct the elections is not contained in any Act of Parliament and has not been passed by parliament but has been brought into ‘effect’ by way of regulations under the Presidential Powers (Temporary Measurers) Act. Analysts say this is unconstitutional and illegal.
Professor Welshman Ncube, a lawyer, said in his presentation in Maputo it is a violation of the constitution to enact regulations to govern the conduct of elections when the constitution says that they must be done under an Act of Parliament as opposed to presidential regulations.
He said the validity of the regulations are also in doubt due to the fact that the Presidential Powers (Temporary Measures) Act itself prohibits the making of regulations under it in any matter that the constitution requires to be regulated by an Act of Parliament.
Furthermore, that Act says regulations under it can only be made in circumstances where it is ‘inexpedient’ to have the proposed law made by parliament.
Although parliament was in session, Mugabe unilaterally proceeded to amend the law by decree.
Analysts also say more importantly, the foundation of the Constitutional Court (Concourt) judgement which ordered that elections be held no later than July 31 was the acceptance by the court of the principle that rule by decree in the absence of parliament was abhorrent and should be avoided at all costs.
“The supreme irony of all this is that in attempting to comply with a judgement which rejects rule by decree, the president was advised to issue a presidential decree during a period while parliament was sitting and ready to pass the required law,” Ncube said. “I have no doubt that the Constitutional Court judges would be appalled that rule by decree has been resorted to in order to implement or enforce a judgement founded on a rejection of the creation of conditions/circumstances which might allow rule by decree.”
Analysts say a further matter which adds more confusion to the legal muddle created is that the election proclamation was issued as statutory instrument No. 68 of 2013.
The new constitution says that once an election proclamation has been issued no further electoral laws and regulations can be made which have an effect on that election. Yet after the election proclamation the president made three statutory instruments intended to govern the 2013 elections.
There is SI 87 of 2013; SI 88 of 2013 and SI 89 of 2013. These deal with various matters ranging from the nomination of candidates and nomination forms through procedures and rules governing the registration or accreditation of election observers to the methods and processes for the collation of election results.
All these regulations are potentially invalid for the purposes of the 2013 elections, analysts say. Finance minister Tendai Biti, who is also a lawyer, told the National Assembly last week that the coalition government became dysfunctional soon after Mugabe unilaterally proclaimed poll dates.
“We have since stopped operating as a united government, and since that proclamation things are not working well,” Biti said.
However, Biti and Energy minister Elton Mangoma also took the opportunity in parliament to move their outstanding bills on the order paper. They successfully steered through, without debate, the following bills: Money Laundering and Proceeds of Crime Bill, Income Tax Amendment Bill and the Electricity Amendment Bill.