[21st June 2023]
Shifting the Goalposts: Last-Minute Changes to the Constitution
and Electoral Law
Yesterday late afternoon, less than a day before nomination day for the forthcoming elections [and after some people had already filed their nomination papers as the law allows] two statutory instruments were published which make significant changes to the law under which the election will be held.
- The first, SI 114 of 2023, is a notice from the Law Reviser correcting the Constitution of Zimbabwe Amendment No. 2 Act. According to the notice, the Act does not accurately reflect what was passed by Parliament. Hence corrections are made to the new section 268 of the Constitution which in its uncorrected form states that provincial and metropolitan councils must consist of ten women elected by a system of proportional representation in accordance with the Electoral Law. The section, as corrected by the Law Reviser, now says that ten persons must be elected to provincial and metropolitan councils under a system in which the party lists have equal numbers of men and women alternating – i.e. if the first candidate on the party list is a woman, the next must be a man, and so on. The effect of the change is that political parties intending to contest seats on provincial and metropolitan councils must present party lists on nomination day with equal numbers of men and women candidates.
This first SI can be accessed on the Veritas website [link].
2. The second SI, 115 of 2023, is a notice made by ZEC in terms of the Electoral Act. It is intended to give effect to the new section 277(4) of the Constitution which says:
“An Act of Parliament may provide for the election, by a system of proportional representation … of at least thirty per centum of the total members of the local council elected on ward basis as women.”
The SI sets out the number of reserved seats in each local authority council which ZEC has calculated represent 30 per cent of the total council seats for the purposes of section 277(4). Although the SI does not say so, political parties are clearly expected to present party lists based on these calculations when they appear at the nomination courts today.
This second SI can also be accessed on the Veritas website [link].
Both the SIs are illegal and outrageous. We shall deal with their illegality first.
Illegality of the SIs
Section 157(5) of the Constitution
Section 157(5) of the 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 that election. The President published a proclamation calling the election on the 31st May, so neither of the SIs can apply to the forthcoming general election – even though they are clearly intended to.
Correction of the Constitution
More than two years have passed since the Constitution of Zimbabwe Amendment (No. 2) Act was published, and it is curious that only now, just before nomination day, serious errors in the Act have come to light. That aside, the Law Reviser has exceeded his or her powers in issuing SI 114 of 2023.
The Statute Law Compilation and Revision Act [link] allows the Law Reviser to correct and update statutes, including the Constitution, though he or she cannot make material alterations to their substance. And the corrections must be to the text of a statute that has been lawfully passed by Parliament. The Law Reviser cannot correct procedural errors or illegalities that may have occurred while a statute was passing through Parliament.
According to an explanatory note to SI 114 of 2023, it seems that the errors in the Constitution of Zimbabwe Amendment (No. 2) Act appeared in the Votes and Proceedings of the 15th April, 2021, and were not reflected in Hansard and Zoom recordings of proceedings in the National Assembly on that day. Even if we assume this is what happened, it does not give the Law Reviser the right to correct the Act, because:
· It implies that the errors were incorporated into the consolidated Bill which was sent to the Senate, and that the Senate then debated and passed a version of the Bill which differed materially from the one passed by the National Assembly.
· It certainly means that the President assented to a version of the Bill that was not passed by the Assembly [because the Act was published with those errors in it].
If either of those two propositions is true, then the Act was not properly passed by the Legislature, i.e. by the National Assembly, the Senate and the President, because they did not all consider and pass or assent to the same document. The Act is therefore a nullity, at least in regard to the clauses in which the errors occurred, and no attempted corrections made by the Law Reviser can restore it to legality.
SI 115 of 2023
The notice made by ZEC, purporting to fix the numbers of women party-list councillors to be elected in each local authority, is also invalid. The notice is supposed to give effect to section 277(4) of the Constitution, but as we said earlier the section states: “An Act of Parliament may provide for the election …” of those women party-list councillors. It is not a mandatory requirement that there must be party-list women councillors in local authorities (the section uses the word “may”) so it is up to Parliament to decide whether or not women should be given party-list seats on local authority councils. Parliament has not yet made that decision and until it does those women cannot be elected. ZEC cannot take it upon itself to make the decision for Parliament.
Hence SI 115 of 2023 is void.
Disregard of Democratic Norms
Apart from being illegal the two SIs show a complete disregard for democracy and constitutional governance.
Section 157(5) of the Constitution, which we mentioned earlier and which prohibits changes to the electoral law after an election has been called, is intended to prevent political parties being caught unawares by sudden last-minute changes to the electoral rules. The changes wrought by SIs 114 and 115, made less than 24 hours before nomination courts open, even if legal or if complied with as if they were legal, would force parties to revise their lists of candidates and find new candidates. Parties will have no time to do it. They will have been caught completely unawares.
According to section 3 of the Constitution, the principles of good governance bind the State and all its institutions at every level. These principles include:
· a multi-party democratic political system
· an electoral system based on free, fair and regular elections
· respect for the rights of all political parties, and
· [perhaps most important] respect for the people of Zimbabwe.
The two notices undermine each and every one of those principles.
