Opinion / Columnist
Chombo wrong that poll date is Mugabe's prerogative
16 Jul 2017 at 12:44hrs | Views
Home Affairs minister and Zanu-PF national secretary for administration, Ignatius Chombo, claimed that President Robert Mugabe has the prerogative to call for elections at any time next year.
The Herald reported that Chombo said "The president is not forced by anyone to declare elections in June (2018). He can choose any date next year." Chombo's statement is both very misleading with regard to the legal position as well as very revealing with regard to Zanu-PF's political strategy.
Once upon a time, under the old Constitution, the president did have a prerogative to dissolve Parliament and call for elections at any time. But under the new Constitution the president has no such powers.
However, it is still legally possible for the elections to be held early, and Chombo's comments give a strong suggestion that Zanu-PF may manoeuvre to have a snap election. But that prerogative lies with Parliament and not with the president.
It may seem to some that I am splitting hairs: Zanu-PF controls Parliament anyway, so surely they'll call the election whenever Mugabe wants? But, for reasons I'll try to explain below, it remains very important to expose the falsehood of Chombo's claim while at the same time gearing up for the possibility of an early election.
What does the Constitution say about the timing of elections?
The Constitution states in section 158 that, under normal circumstances, an election "must be held so that polling takes place not more than thirty days before the expiry of the five-year [term]".
Parliament's five-year term runs from the date on which the president-elect is sworn into office which was on August 22 2013, which means that the parliamentary term expires at midnight on August 21 2018.
Therefore, under normal circumstances, the 2018 election should be held anytime between July 23 and August 21 (inclusive of those dates).
There are, however, three other scenarios in which the election could be held earlier than that. Two are highly unlikely, and so won't be discussed in detail: these are where Parliament passes a vote of no confidence in the government or if Parliament unreasonably refuses to pass an Appropriations Bill.
The third, more likely, scenario is where Parliament passes a resolution to dissolve itself. For the resolution to pass, it requires at least two-thirds of the total membership of both the Senate and the National Assembly (the two houses of Parliament) sitting separately.
If the resolution does pass, the president must dissolve Parliament and call for an election within 90 days of Parliament's dissolution.
So can Zanu-PF call for early elections?
The short answer is, yes. Zanu-PF controls more than two-thirds of both houses of Parliament and so, if all of their parliamentarians act together, they do have the ability to dissolve Parliament and call early elections.
However, this is a much less simple task than what Chombo's claim that the president can call for an election whenever he wants.
Normal votes in Parliament only require a simple majority (over 50%) of the Members of Parliament (MPs) present at the time of the vote. Since this resolution requires 66,6% of all MPs (whether or not everyone is present), it is a much more onerous hurdle, not least because many MPs frequently don't turn up for work!
It would require convincing almost all Zanu-PF MPs to essentially vote themselves out of a job (with all the benefits that come with it) with no guarantee they'll get it back.
It would also require both factions of the party to be on board with the move for Zanu-PF to get enough votes.
That said, Zanu-PF MPs typically vote as a block and are very subservient to the executive and so they might still do as they are told even if it's against their personal interests.
Why would Zanu-PF call for early elections?
Chombo's statement is a strong indication that Zanu-PF may well plan to call the elections early. There are several reasons why they may wish to do so.
One reason might be the president's declining health. If the party feels that Mugabe may no longer be alive or fit to stand in July/August, that would be strong motivation to call the elections early.
For decades, Zanu-PF has been built around the "one centre of power". The mythology, mystic, fear and admiration that Mugabe's personality cult commands is Zanu-PF's best chance at winning the 2018 election.
When Mugabe dies the party will likely be thrown into serious turmoil as different factions compete to take full control of the party apparatus. To go into an election amidst that level of turmoil would be a disaster for Zanu-PF, so if they can avoid that by any means, they will.
Another reason might be to cut short the voter registration and education process. A fully implemented Biometric Voter Registration (BVR) system would severely curtail Zanu-PF's ability to manipulate the electoral process. An early election could help to undermine that threat.
The Zimbabwe Electoral Commission may be "forced" to revert to Mudede's 2013 Voters' Roll - or a similar equivalent - which has been described as a "masterpiece" in electoral manipulation, disenfranchising thousands of voters.
Thirdly, Zanu-PF may want an early election to catch the opposition parties flat-footed. Their calculation may be that an early election could reduce the chances of the opposition forming a coalition and curtail their campaigns and mobilisation efforts.
Why did Chombo make a false claim? And why we mustn't take it lying down.
So if Zanu-PF has the ability to call an early election through Parliament dissolving itself, why didn't Chombo just say that? Why would he falsely claim that the president has the power to do so?
One possibility for Chombo's erroneous statement is that he is simply ignorant of the law. The fact that he said "the president is not forced by anyone to declare elections in June" suggests he perhaps he doesn't even know the correct months during which the 2018 elections are currently scheduled to take place (i.e July or August). Ignorance among public officials like Chombo on such important issues should concern us.
But Chombo's comments exhibit an even more concerning trend: public officials utter disdain for and deliberate attempts to undermine the Constitution.
It's highly possible that Chombo's reference to the president's powers under the old Constitution was no mistake. Public officials frequently act and speak as if the old Constitution is still in force, or as if they are not bound by any Constitution.
They speak of the "alignment" of other laws with the Constitution as if the Constitution has no force until laws are aligned.
This rhetoric is so pervasive that, this week, when I pointed out that Chombo's claim is at odds with the Constitution, even well-meaning and generally well-informed citizens asked me "but is that part aligned".
For the avoidance of doubt, it is important to state here that the Constitution is a law - in fact, it is the supreme law - and other "law" that is inconsistent with the Constitution is invalid and, therefore, is not actually a law.
The process of the alignment of other laws with the Constitution is important for providing clarity, but it does not bring the Constitution into force - the Constitution is already in force and must be complied with by everyone, including the president, Chombo and all public officials.
Chombo's statement also undermines the independence and authority of Parliament. The separation of powers - which includes the independence of Parliament - is fundamental to our constitutional democracy.
As such, a long-time strategy of Zanu-PF has been to weaken Parliament and turn it into a pawn that does the executive's bidding.
Chombo's statement "the president is not forced by anyone to hold the elections in June" contains a subtle threat to Parliament.
Because reality is that Parliament can force the president to wait until July (not June) 2018 before he can call for elections: if Parliament refuses to dissolve itself, there is nothing the president can do to hold the elections earlier.
Chombo is perhaps aware of how significant a hurdle it is going to be to whip into line hundreds of MPs in a faction-ridden party to convince them to vote themselves out of a job.
His message to them is: don't you dare cross the president.
Doug Coltart is a lawyer, political analyst and activist. He writes in his personal capacity. Follow him on Twitter at @DougColtart
The Herald reported that Chombo said "The president is not forced by anyone to declare elections in June (2018). He can choose any date next year." Chombo's statement is both very misleading with regard to the legal position as well as very revealing with regard to Zanu-PF's political strategy.
Once upon a time, under the old Constitution, the president did have a prerogative to dissolve Parliament and call for elections at any time. But under the new Constitution the president has no such powers.
However, it is still legally possible for the elections to be held early, and Chombo's comments give a strong suggestion that Zanu-PF may manoeuvre to have a snap election. But that prerogative lies with Parliament and not with the president.
It may seem to some that I am splitting hairs: Zanu-PF controls Parliament anyway, so surely they'll call the election whenever Mugabe wants? But, for reasons I'll try to explain below, it remains very important to expose the falsehood of Chombo's claim while at the same time gearing up for the possibility of an early election.
What does the Constitution say about the timing of elections?
The Constitution states in section 158 that, under normal circumstances, an election "must be held so that polling takes place not more than thirty days before the expiry of the five-year [term]".
Parliament's five-year term runs from the date on which the president-elect is sworn into office which was on August 22 2013, which means that the parliamentary term expires at midnight on August 21 2018.
Therefore, under normal circumstances, the 2018 election should be held anytime between July 23 and August 21 (inclusive of those dates).
There are, however, three other scenarios in which the election could be held earlier than that. Two are highly unlikely, and so won't be discussed in detail: these are where Parliament passes a vote of no confidence in the government or if Parliament unreasonably refuses to pass an Appropriations Bill.
The third, more likely, scenario is where Parliament passes a resolution to dissolve itself. For the resolution to pass, it requires at least two-thirds of the total membership of both the Senate and the National Assembly (the two houses of Parliament) sitting separately.
If the resolution does pass, the president must dissolve Parliament and call for an election within 90 days of Parliament's dissolution.
So can Zanu-PF call for early elections?
The short answer is, yes. Zanu-PF controls more than two-thirds of both houses of Parliament and so, if all of their parliamentarians act together, they do have the ability to dissolve Parliament and call early elections.
However, this is a much less simple task than what Chombo's claim that the president can call for an election whenever he wants.
Normal votes in Parliament only require a simple majority (over 50%) of the Members of Parliament (MPs) present at the time of the vote. Since this resolution requires 66,6% of all MPs (whether or not everyone is present), it is a much more onerous hurdle, not least because many MPs frequently don't turn up for work!
It would require convincing almost all Zanu-PF MPs to essentially vote themselves out of a job (with all the benefits that come with it) with no guarantee they'll get it back.
It would also require both factions of the party to be on board with the move for Zanu-PF to get enough votes.
That said, Zanu-PF MPs typically vote as a block and are very subservient to the executive and so they might still do as they are told even if it's against their personal interests.
Why would Zanu-PF call for early elections?
Chombo's statement is a strong indication that Zanu-PF may well plan to call the elections early. There are several reasons why they may wish to do so.
For decades, Zanu-PF has been built around the "one centre of power". The mythology, mystic, fear and admiration that Mugabe's personality cult commands is Zanu-PF's best chance at winning the 2018 election.
When Mugabe dies the party will likely be thrown into serious turmoil as different factions compete to take full control of the party apparatus. To go into an election amidst that level of turmoil would be a disaster for Zanu-PF, so if they can avoid that by any means, they will.
Another reason might be to cut short the voter registration and education process. A fully implemented Biometric Voter Registration (BVR) system would severely curtail Zanu-PF's ability to manipulate the electoral process. An early election could help to undermine that threat.
The Zimbabwe Electoral Commission may be "forced" to revert to Mudede's 2013 Voters' Roll - or a similar equivalent - which has been described as a "masterpiece" in electoral manipulation, disenfranchising thousands of voters.
Thirdly, Zanu-PF may want an early election to catch the opposition parties flat-footed. Their calculation may be that an early election could reduce the chances of the opposition forming a coalition and curtail their campaigns and mobilisation efforts.
Why did Chombo make a false claim? And why we mustn't take it lying down.
So if Zanu-PF has the ability to call an early election through Parliament dissolving itself, why didn't Chombo just say that? Why would he falsely claim that the president has the power to do so?
One possibility for Chombo's erroneous statement is that he is simply ignorant of the law. The fact that he said "the president is not forced by anyone to declare elections in June" suggests he perhaps he doesn't even know the correct months during which the 2018 elections are currently scheduled to take place (i.e July or August). Ignorance among public officials like Chombo on such important issues should concern us.
But Chombo's comments exhibit an even more concerning trend: public officials utter disdain for and deliberate attempts to undermine the Constitution.
It's highly possible that Chombo's reference to the president's powers under the old Constitution was no mistake. Public officials frequently act and speak as if the old Constitution is still in force, or as if they are not bound by any Constitution.
They speak of the "alignment" of other laws with the Constitution as if the Constitution has no force until laws are aligned.
This rhetoric is so pervasive that, this week, when I pointed out that Chombo's claim is at odds with the Constitution, even well-meaning and generally well-informed citizens asked me "but is that part aligned".
For the avoidance of doubt, it is important to state here that the Constitution is a law - in fact, it is the supreme law - and other "law" that is inconsistent with the Constitution is invalid and, therefore, is not actually a law.
The process of the alignment of other laws with the Constitution is important for providing clarity, but it does not bring the Constitution into force - the Constitution is already in force and must be complied with by everyone, including the president, Chombo and all public officials.
Chombo's statement also undermines the independence and authority of Parliament. The separation of powers - which includes the independence of Parliament - is fundamental to our constitutional democracy.
As such, a long-time strategy of Zanu-PF has been to weaken Parliament and turn it into a pawn that does the executive's bidding.
Chombo's statement "the president is not forced by anyone to hold the elections in June" contains a subtle threat to Parliament.
Because reality is that Parliament can force the president to wait until July (not June) 2018 before he can call for elections: if Parliament refuses to dissolve itself, there is nothing the president can do to hold the elections earlier.
Chombo is perhaps aware of how significant a hurdle it is going to be to whip into line hundreds of MPs in a faction-ridden party to convince them to vote themselves out of a job.
His message to them is: don't you dare cross the president.
Doug Coltart is a lawyer, political analyst and activist. He writes in his personal capacity. Follow him on Twitter at @DougColtart
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