In several articles recently posted by RAU, it was noted that the President cannot comply with both the Electoral Law as it currently stands, and with the Constitutional Court ruling that elections be held by 31st July, 2013. Today’s (10.06.13) Herald has Professor Madhuku stating in effect “No problem. Mugabe can just use the Presidential Powers (Temporary Measures) Act to alter all the necessary provisions of the Electoral Act to enable him to meet the deadline”.
This suggestion gives rise to several deep ironies. It was Madhuku himself who is supposed to have hailed the Concourt ruling on the ground it would be undemocratic for the President to “rule by decree” (i.e. use the Presidential Powers (Temporary Measures) Act) without Parliament to operate as a check on his power. So now, in order to meet the Concourt deadline, it is suggested that the President unilaterally, without the consent of the other major parties, and without the oversight of Parliament alter the law governing an election in which he is a candidate. The law is thus to be changed to cater for an ah hoc court order issued due to a breach of the Constitution by the President. Any problems with the democratic nature of that, Professor Madhuku?
The second irony is that the new Constitution specifically includes a provision that once election dates are announced the electoral laws cannot be changed. This provision was undoubtedly inserted to prevent that which had happened before, when the President took advantage of the fact that Parliament was dissolved to issue a decree reinserting a provision into the Electoral Act which Parliament had but a few months before removed – one which allowed police officers into polling stations.
The Presidential Powers (Temporary Measures) Act provides that any laws made by the President in term of this Act must be laid before Parliament within eight days, whereupon Parliament may repeal or amend the law, or leave it as is.
However, the question will arise then as to whether this provision will apply if the election dates have been announced. Our Concourt may well hold that the provision in the Constitution that the electoral law cannot be changed overrides this provision of the Presidential Powers (Temporary Measures) Act. The irony then is that a provision designed to prevent the President from altering electoral law, has in fact strengthened his power to do so, as once the President has unilaterally made the law and announced the dates, it cannot be changed by Parliament. Furthermore, while the whole reasoning behind the Concourt deadline is that rule by the President without Parliament is undesirable, the effect is, according to Madhuku, to compel him to do precisely that.
However, it may be that on a correct interpretation of the Presidential Powers (Temporary Measures) Act and the new Constitution this situation will not arise.
To comply with the Concourt ruling the President will have to alter provisions of the Electoral Act specifically agreed between the main political parties and which formed part of the 2007 amendments to the Act – that is, that voter registration must end 24 hours before the nomination court sits. It is this provision which prevents the President from complying with the 30 day registration period in the Constitution and the Concourt order.
However, The Act does not allow the President tomake a law “providing for any … matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act”. Voter registration is provided for by the new Constitution and section 157(1)(b) is to this effect:
157(1) An Act of Parliament must provide for the conduct of elections and referendums to which this Constitution applies, and in particular for the following matters…
The “matters” then listed include proportional representation, the election of persons with disabilities, the election of provincial and metropolitan councils and the registration of voters.
So it is an Act of Parliament that must provide for this, and not a Presidential decree.
If there is to be compliance with the law, it seems that the President will have to ask the Concourt for a postponement, which he proved very good at during the by-election saga. The problem for the President is that if he is able to ask for a postponement to another date, this will then make it clear that the 31st July, 2013 is not carved in stone by the law, as ZANU PF would like the populace to believe.