Election Watch 1-2017

ELECTION WATCH 1/2017

[10th May 2017]

Timeframe for the 2018 General and Presidential Elections

This e-bulletin introduces Veritas’ new Election Watch series.  In this series Veritas will provide information about electoral law and its implementation in the run-up to the next general election in 2018. 

This first bulletin will outline the timeframe laid down in the Constitution for general elections. 

New Constitutional Provisions Different from Previous Provisions

The provisions on the timing of general elections differ from those in the old constitution.  They also differ from the provisions for the last [2013] general election which was outlined in the Sixth Schedule to the Constitution containing Transitional Provisions. The present constitutional provisions were a deliberate change from the provisions in the old Constitution in which five years was only a maximum term for Parliament and the President could dissolve Parliament by Presidential Proclamation whenever he wanted before the five-year term had expired.  As the proclamation triggered the ensuing timetable for a general election, this gave the President choice and control over when elections were held.  The Parliamentary Committee for the Constitution Making Process [COPAC] were determined that Parliament should not be curtailed at the President’s call, but should in normal circumstances live out its full five-year span.    

This timeframe below is based on “normal circumstances”.  [For exceptional circumstances see last paragraph.]

2018 General Election Polling Date[s]

The polling date is the key date which determines when all the other electoral process must take place.  So we begin with how the polling date is fixed.

The polling date of the next general election is determined by what the Constitution says about the duration of Parliament.

Section 143 (1) states that

Parliament is elected for a five-year  term which runs from the date on which the President-elect is sworn in and assumes office”. 

The President was sworn in on the 22nd August 2013, so the five-year term of Parliament ends at midnight on August 21st 2018.

The earliest date for polling is 23rd July 2018 

This is based on Constitution section 158 [Timing of Elections] which states that:

(1) A general election must be held so that polling takes place not more than … thirty days before the expiry of the five-year period specified in section 143.

The last date for polling is 21st August 2018

This is based on Constitution section 144 which states that:

“the President must by proclamation call and set dates for a general election to be held within the period prescribed in section 158.” 

This means that the election must take place before the five years has expired.

Note:  Polling can take place over more than one day.

Gazetting of Presidential Proclamation of a General Election

The President still has the prerogative of setting the date [gazetting the Proclamation] for the General Elections, but he must do so within the parameters

1. fixed by the Constitution for polling date and

2. fixed by the Constitution and the Electoral Act for the length of time between the proclamation and polling.

The constitutional parameters for polling day have been set out in the paragraph above.  The number of days between the proclamation and polling day are as follows:

Section 157 of the Constitution, stipulates the minimum period from proclamation to nomination date [14 days], and from nomination date to polling date [30 days].  That is, there has to be a minimum of 44 days from the proclamation date to polling.

Section 38 of the Electoral Act stipulates a maximum 84 days between proclamation and polling.

So the Proclamation must be not less than 44 and not more than 84 days before the polling day chosen

This leaves several options for the proclamation date based on the earliest and latest date set by the Constitution and Electoral Act for polling.

Based on the earliest polling date of 23rd July 2018  the Proclamation must be gazetted in the period 30th April to 9th June 2018  

Based on the latest polling date of 21st August 2018, the Proclamation must be gazetted in the period 30th May to 9th July 2018        

Taking into account the maximum of 84 days and minimum of 44 days between proclamation and polling this means that:

So The earliest possible proclamation date is Monday 30th April 2018 for polling on Monday 23rd July [leaving an 84-day period from proclamation to polling]

And The latest possible proclamation date is Monday 9th July 2018 for polling on Wednesday 21st August [leaving a 44-day period from proclamation to polling].

Consultation with the Zimbabwe Electoral Commission [ZEC]

Section 144(3) of the Constitution lays down that the dates for the election must be fixed by the President “after consultation with the Zimbabwe Electoral Commission”.  Section 339(2) explains that this means ZEC must be afforded a reasonable opportunity to make recommendations or representations about proposed dates and that the President must give careful consideration to any such recommendations and representations although he is not obliged to follow them.  The need for this consultation with ZEC is repeated in section 38(1) of the Electoral Act.

Note: The President is under no legal or constitutional obligation to consult with Cabinet.  Section 110(2)(e) of the Constitution as read together with section 110(6) makes it clear that the President’s responsibility for calling elections is an executive function in the exercise of which he is not obliged to act on Cabinet advice.  The President is, however, free to consult Cabinet if he wishes to.

Dissolution of the Present Parliament

It will not be for the President to dissolve Parliament, in the election proclamation or by any other means.   The dissolution of Parliament will occur automatically in terms of section 143(1) of the Constitution, which provides as follows—

“Parliament stands dissolved at midnight on the day before the first polling day in the next general election called in terms of section 144”.

Exceptional Circumstances

Although the Constitution no longer allows for ordinary dissolution of Parliament by Presidential Proclamation, and provides that normally Parliament should serve out its five-year terms, Section 143 of the Constitution provides for an early dissolution of Parliament in the following exceptional circumstances:

a refusal by Parliament to pass an annual Appropriation Bill [the Budget]  [section 143(3)]

the passing by a least two-thirds of the members of the National Assembly and the Senate, sitting separately, of resolutions to dissolve Parliament [section 143(2)]

a Parliamentary vote of no confidence in the Government [section 109]

In the first event the President may dissolve Parliament and proclaim a general election to be held within 90 days of dissolution or instruct a Minister to change the Budget;

In the second one he must dissolve Parliament within 14 days and proclaim a General Election to be held within 90 days of dissolution;

In the third circumstance he must either replace all his Ministers or dissolve Parliament and proclaim an election; [if he does not do so within 14 days, Parliament is automatically dissolved and the President must proclaim a general election to be held within 90 days of the automatic dissolution]

Note: The five-year term would not be prematurely terminated if President Mugabe were to cease to be President before the end of the term.  In that event, there are two stages provided for by the Constitution—

Acting President – the Vice-President who last acted as President takes over until his party [ZANU-PF] notifies the Speaker of Parliament who it has nominated as a successor [notification must be within 90 days],

Substantive President – the nominee notified to the Speaker by ZANU-PF must assume office as President by taking the Presidential oath of office within the next 48 hours before the Chief Justice.  The new President then holds office until the swearing-in of the person elected at the next general election in July or August 2018. 

 

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