Mugabe’s election date declaration invalid – Veritas
Zimbabwe’s President Robert Mugabe stunned the nation yesterday by using the Presidential Powers (Temporary Measures) Act to gazette amendments to the Electoral Act in the morning. And then he followed this up with a proclamation of election date in the afternoon, gazetting Zimbabwe’s Harmonised Election for 31 July 2013.
President Mugabe justified this action by claiming deference to the Constitutional Court ruling last month that ordered that Zimbabwe’s elections be held on or before 31 July of this year.
Zimbabwe’s Prime Minister Morgan Tsvangirai immediately issued a statement rejecting Mugabe’s unilateral setting of the election date, calling it unconstitutional.
Indeed, according to Zimbabwe legislation distribution and analysis service Veritas, Mugabe’s actions are problematic (read illegal and invalid) for a number of reasons:
1) According to section 31H of Zimbabwe’s old constitution which is still in force, the President was required to act in consultation with Cabinet in proclaiming election dates. Given that yesterday’s actions took everyone by surprise, he clearly didn’t do so.
2) The Presidential Powers (Temporary Measures) Act, states that regulations made under the act shall not cover things which the Constitution provides will be covered by an Act of Parliament – The new Constitution requires that the new provisions for the Electoral Law be passed by Parliament, and not made by regulation in terms of another Act (like the Presidential Powers Act).
3) The Electoral Regulations and the election proclamation have now both been gazetted on 13 June. So both have the same publishing date, that is, they were published simultaneously according to how government dates Statutory Instrument (section 20 of the Interpretation Act). If they were published simultaneously, the regulations “cannot be said to have had effect before the election was called. Hence, under section 157(5) of the new constitution, they must be disregarded.”
So, it would appear that the 31 July election proclamation is both unconstitutional and illegal. The trouble, of course, is how to enforce the law in a country whose President so flagrantly disregards it. This just makes things doubly worrying, however. As Marko Phiri pointed out yesterday, “if Mugabe can unilaterally call for polls despite Tsvangirai’s own earlier declaration that he holds the keys to elections, what is to stop him (Mugabe) from declaring himself a winner in the elections, or as he did in 2008 refuse to accept defeat.”