Mugabe ‘breached Zimbabwe Constitution’

President Robert Mugabe on Thursday found himself with the upper hand, but also in a complicated situation after he proclaimed the harmonised poll date as July 31.

More legal impediments stand in his way, including a flurry of challenges placed before the Constitutional Court this week as well as a rejection of the date by the Movement for Democratic Change.

Mugabe resorted to using the Presidential Powers (Temporary Measures) Act after it became apparent to him that Parliament would not have finished amending the Electoral Act to bring it into sync with the new Constitution by July 31.

At a press briefing, opposition leader Morgan Tsvangirai said Mugabe cannot force him into an election and he has instructed his lawyers to file an urgent court application seeking to stop the polls being held on July 31. He said Mugabe's announcement was a "unilateral and flagrant breach of the Constitution".

Tsvangirai also said holding an election would mean cutting short the 30-day voter registration process that is under way, and this would disenfranchise potential voters and deny political parties a chance to inspect the voters' roll.

Zimbabwe's wrangling over the poll date will also play out on Saturday in Maputo, Mozambique, during a Southern African Development Community summit, which was initially planned for last week but was postponed on Zanu-PF's insistence that it still wanted to consult further following the court ruling. That meeting and the outstanding legal challenges will be key to determining the date.

Constitutional challenges
Among cases before the courts are:

  • A man from Harare who is yet to be named, who has asked the Constitutional Court to set aside its ruling that the poll be held on July 31, arguing that his rights to vote were violated as he was unable to register and he would be violated further if elections are held before he had had a chance to do so.
  • Maria Phiri, a woman from Bulawayo, filed a Constitutional Court application this week arguing that as an "alien" under the old Constitution, she requires more than 30 days of the stipulated voter registration period to acquire an identity document and register.
  • The Zimbabwe Development Party this week also brought a case before the Constitutional Court, arguing that it must be granted $1.5-million in government funds it is entitled to under the rules of state funding for political parties. The state argues that according to the rules, the party does not qualify for such funding. The party has requested that elections be put on hold until its case is heard.
  • Human rights defender Nixon Nyikadzino on Monday also filed an application with the Constitutional Court. He argues that by being in a hurry to hold elections on July 31, the president will not give enough time for electoral processes to play out, hence his rights may be violated.
  • Tavengwa Bukaibenyu, a driver by profession, on Thursday asked the Constitutional Court to declare that sections of the Electoral Act that bar postal voting for ordinary Zimbabweans in the diaspora infringe his rights to have a voice on who governs Zimbabwe.
  • A challenge by businessman Mutumwa Mawere asks the court to overturn a decision by the registrar general, which states that he may not vote due to his dual citizenship. Mawere was born in Zimbabwe, but became a South African citizen by naturalisation. Mawere has asked that the voter registration process be stopped until his case is finalised. Mugabe's spokesperson, George Charamba, was not available for comment to explain how Mugabe would proceed in light of the applications.

Cabinet agreements
On Tuesday, Mugabe led a Cabinet meeting that managed to successfully align existing laws with the new Constitution, which was adopted last month. The government, however, faced a dilemma in that certain laws, such as the Electoral Act, were not in sync with the new supreme law and had to be amended before an election could take place.

After the Cabinet meeting, Justice and Legal Affairs Minister Patrick Chinamasa confirmed that Cabinet had endorsed amendments recommended by the unity government negotiators.

Chinamasa said that in addition to legislative changes, Cabinet agreed that election results will be pinned outside each polling station and candidates will receive copies of the results. He also said that all parties can have up to three representatives at each polling station.

Electoral Act headaches
After the Cabinet agreements, legal experts this week pointed out that the electoral amendments still need to be passed by Parliament, assented to by the president and gazetted before Mugabe can name an election date.

Veritas, a group of lawyers, said in order to comply with the new Constitution, changes had to be made to suit constitutional requirements that:

  • Sixty women are elected as members of the national assembly under a party-list system of proportional representation;
  • Sixty senators are elected,
  • also under a party-list of proportional representation; and
  • Ten provincial councillors for each provincial council are elected under a party-list system of proportional representation.

Veritas had said it was unlikely these changes and the ensuing parliamentary process could be completed in the limited time available.

The Constitution also requires at least 44 days from proclamation date to polling date, of which at least 30 must be provided between the nomination of candidates and the election. Longer periods can be fixed within the confines of the electoral laws.

Veritas had said that unless the Electoral Bill has been passed by Parliament, signed by the president and gazetted as law on or before June 17, it will be impossible for the president to proclaim an election before or for July 31.

Furthermore, it said nominations could only take place after July 9, when the voter registration process that started on Monday is complete. Doing so before then would be violating the Constitution.

To get around these legal challenges, Mugabe on Thursday invoked the Presidential Powers (Temporary Measures) Act, effectively allowing him to proclaim the election date.

In a letter to Tsvangirai, seen by the M&G on Thursday, Mugabe said it was not possible for him to wait for Parliament to pass the Electoral Act if he was going to comply with the Constitutional Court deadline and it became "necessary" for him to use the Presidential Powers Act.

Party problems
Mugabe was also locked in the party's politburo meeting on Wednesday and Thursday, which would finalise rules and dates for his own party to carry out primary elections to choose candidates to represent it at the polls.

This paper last week reported that the party was not prepared for polls, and there was strong opposition to its rules for selection of candidates from its women's and youth leagues.

The party had indicated at its December conference that it would hold primary elections in February, but it has not done so. Sources in the party say this is due to factional fights.

Its Masvingo branch has also threatened to campaign for the opposition if the party does not take its demands for a change of rules seriously.

Sources who were attending the politburo meeting said the party could hold its primaries on June 22. By the time of going to press, the Zanu-PF politburo had not ended or put out an official statement.

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