Mugabe victim of poor legal advice

HARARE - President Robert Mugabe acted unlawfully and unconstitutionally when he sought to proclaim the election date and the nomination date on June 12, 2013.

He also acted unlawfully and unconstitutionally when he sought to amend the Electoral Law by decree on the same day.

The new Constitution makes it very clear that after the Publication Day, which is the day upon which the president signed the Constitution into law, an intense voter registration exercise has to take place for at least 30 days.

This was meant to ensure that unregistered Zimbabweans especially the so- called Aliens would get an opportunity to register and therefore play a meaningful role as full citizens in the electoral process.

Mugabe was however made to believe that the proclamation of the nomination and election days could run concurrently with voter registration.

This was clearly wrong. A proclamation of an election date cannot take place before the completion of voter registration without violating the rights of some Zimbabweans.

In making the proclamation, the president sets the date for nomination of candidates and the date for the actual election of those candidates. For any person to be able to nominate any candidate, he or she must be a registered voter. For a person to be nominated as a candidate, he or she must be a registered voter.

 This means that the setting of the nomination date as the 28th of June 2013 meant that persons registered after that date but on or before the 10th of July 2013,which was the date upon which the 30 days end may not nominate anyone as a candidate.

They may also not be nominated as candidates for any position.

This clearly cannot possibly be lawful.

In terms of section 157 of the new Constitution proclamation of election dates must be done in terms of Electoral Law. That means the Electoral Law to be used in that election must be in existence before the proclamation is made and not after. It is common cause that the Electoral Law in this case would be the Electoral Act as amended. However Mugabe proclaimed the election date before the Electoral Law was passed.

He sought to cure this by passing the Electoral Amendment Act by decree using the presidential powers on the same date.

However, the fact remains that even as on that very date the President made the proclamation before decreeing the Electoral Law.

The advisors of Mugabe were guilty of another misapprehension. First, they believed that the president’s decree was an Act of Parliament. They also believed that it was Electoral Law.

However it was neither. Section 332 of the constitution defines an Act of Parliament as an enactment passed by Parliament and signed by the president. The president’s decree was not enacted by Parliament.

Secondly an Act of Parliament is also defined as an enactment passed by Parliament and in force before the Publication Day.

The President’s decree did not exist before the Publication Day as it was made on of June 12, 2013.

The president’s decree cannot be defined as Electoral Law either.

Section 322 defines Electoral Law as an Act of Parliament that regulates elections in terms of this constitution. First we have already seen that the decree was not an Act of Parliament.

Further, nowhere does the current Constitution authorise the president to make Electoral Law.

It follows that the Presidential Decree was made without regard to the current constitution. Chief Justice Chidyausiku made it clear in the Mawarire case that people had to be careful not to create more breaches to the constitution when attempting to remedy a particular breach.

The long and short of it is that the president could not violate the clear provisions of the constitution by claiming to be following a court order. - Douglas Mwonzora

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JAMES - 27 June 2013

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