Which constitution will guide Zimbabweans on electoral processes?

On 22 May 2013, President Robert Mugabe assented to the Constitution of Zimbabwe (Amendment No.20) Bill (hereafter referred to as "the new Constitution"). It was gazetted on the same day. This is the "publication day" of the new Constitution, on which various of its Chapters have come into operation. This includes Chapter 7, which deals with elections. The only sections of Chapter 7 which have not become operational, are section 158 (timing of elections), section 160 (number of constituencies and wards), and section 161 (delimitation of electoral boundaries).

In all matters relating to the upcoming electoral process, therefore, Chapter 7 of the new Constitution will be the supreme and binding law. However the timing of elections will be done in terms of the current Lancaster House Constitution (hereafter referred to as "the old Constitution"), whilst constituency and ward boundaries will remain as they were for the 2008 elections, and there will not be a fresh delimitation exercise.

So the new Constitution and the old Constitution will be operating simultaneously for purposes of the timing of elections. They must be read together with the Sixth Schedule of the new Constitution, which contains provisions to assist during the transition from the old Constitution to the new Constitution.

Timing Of Elections

The timing of elections is difficult to estimate and essentially depends on when Parliament will complete election-related amendments and when those amendments become operational (when the President assents to the amendments), as well as when the voter registration and inspection exercise is carried out. What follows is the minimum time-frame for various processes.

1. President Limited in when he can Announce the Date of an Election

Part 3, Section 8 of the Sixth Schedule stipulates that the first elections must be conducted in terms of the Electoral Law in conformity with the new Constitution. All action taken must therefore comply with the provisions of the new Constitution. As certain electoral processes have changed in the new Constitution, the current Electoral Act, regulations, and other laws and regulations related to elections must be amended so that they comply with the new Constitution. Additionally, there will be need to amend the Local Government Act and the Provincial Councils Act. It would also be folly to proceed to elections without addressing key reforms of legislation relating to media, access to information, public order, criminal procedure and the justice delivery system (including the mandate and operations of the Electoral Court). All of these relate to elections and have been affected by the new Constitution.

The new Constitution clearly sets out in section 157(5) that all amendments to the Electoral Law and any other law relating to elections must be made before an election date is proclaimed. Once an election date is announced, absolutely no amendments can be made to the Electoral Law or other laws relating to elections, either by Parliament, or by the President using his executive powers under the Presidential Powers (Temporary Measures) Act. The President therefore has to wait for all electoral amendments to be adopted by both Houses of Parliament and he must sign them into law before he can announce an election date. It should be noted that the Zimbabwe Electoral Commission (ZEC) must be consulted on all proposed amendments relating to elections. If this process is not followed, the President will be violating the new Constitution.

2. Mandatory Voter Registration and Inspection Exercise

Section 6(3) of the Sixth Schedule specifically states that there shall be a special and intensive voter registration and inspection exercise for at least 30 days after the publication of the new Constitution. This does not have to start immediately after the publication date, and will also be dependent on preparedness, as well as adequate human and financial resourcing of ZEC, which will supervise the Registrar-General's (RG) office during this exercise. There is also a possibility of extending this 30-day period if it does not satisfy the needs of people wishing to register to vote or inspect the voters' roll. The 30-day exercise is mandatory and failure to carry out this exercise after the new Constitution comes into effect will be a violation of the new Constitution by ZEC and the RG's office.

3. Proclaiming an Election Date

At the very earliest, the President could proclaim the date of the election 15 days before the end of the voter registration and inspection exercise, but only if all the amendments to the Electoral Law and other related laws have been finalised and are operational. This would mean that, the day after the exercise ends, the voters' roll would close and 14 days later, Nomination Court could sit in terms of section 157(3) of the new Constitution. Polling can then occur – at the very earliest – 30 days after Nomination Court has sat.

4. Date by which Elections must be Held

Section 58(1) of the Old Constitution states that a general election must be held within a period not exceeding 4 months after Parliament is dissolved. If Parliament runs its full course, an election would therefore have to be held before 29 October 2013. If Parliament is dissolved earlier by the President, elections must be held within 4 months of the date on which he dissolves Parliament. In other words the country has four months to announce an election date, convene nomination courts, and hold the polls.

The Prerequisites Before An Election Date Is Announced

Particular national processes must occur in terms of the new Constitution before an election date can be announced.

(a) All amendments to the Electoral Law and election-related legislation must be finalised and operational.

(b) A 30-day voter registration and inspection exercise has been carried out. [If a date is announced after (a) but still during the voter registration exercise, the announcement can only be done 15 days before the end of the voter registration exercise.]

(c) Once an election date is proclaimed, a minimum of 44 days (14 days between proclamation of the date and the sitting of the Nomination Court, and a further 30 days between the sitting of the Nomination Court and Polling Day) must elapse before actual voting.

(d) The polls must be held within 4 months of the dissolution of Parliament. [At the latest elections must be held by 29 October 2013, if Parliament runs its full course, or alternatively within 4 months of the date on which the President dissolves Parliament.]

For Parliament to extend its life, and/or for the current government to extend itself beyond 29 October 2013, there will be need for a constitutional amendment, possibly together with a new political agreement.

If the above processes are not complied with there will be a constitutional crisis that would give rise to the real probability of protracted constitutional litigation.