CONSTITUTION WATCH 2012
[4th October 2012]
How will the New Constitution Impact on the Coming Elections?
The prospect of a general election is drawing nearer and there is concern about whether institutional safeguards will be in place to ensure that the election is free and fair. In this Constitution Watch and the following one we shall examine whether the new constitution itself will put in place any of the necessary safeguards and what additional safeguards will be needed to permit free, fair and peaceful elections to be held.
When we refer to the new constitution we mean the draft prepared by COPAC, but we shall also note any differences that would be made if the provisions in the proposed ZANU-PF amended draft are incorporated.
Most Provisions of the New Constitution Will Only Come into Force After the Coming Elections
When the new constitution has been adopted, it is the provisions governing the coming elections [see below] that will come into force. It is only after the coming elections that most of the other provisions in the new constitution will come into operation. It must be stressed that there are no mechanisms in the new constitution for ensuring free and fair elections. Although the new constitution lays down the principles that elections must be free and fair, and that members of the civil service and security forces must be non-partisan, it does not establish any mechanisms for ensuring that they are. [The ZANU-PF amended draft does not require members of the security forces to act in a non-partisan manner]
Provisions in New Constitution Affecting Coming Elections
The provisions of the new constitution relating to the election of the first President and Parliament, as well as elections to provincial councils and local authorities, will come into force as soon as the new constitution is promulgated as an Act of Parliament. Those provisions are as follows:
Presidential, parliamentary, provincial and local authority elections will be held concurrently, as they are under the present constitution. [Under the ZANU-PF amended draft, there will be no provincial elections]
Who can Vote
In order to vote, citizens will have to be registered on a voters’ roll. Citizens who are currently registered as voters will remain so, but a further registration exercise will be conducted for at least 60 days to allow further voters to be registered. The qualifications for registration will be the same as at present, except that:
- New citizenship provisions will apply, so people who were citizens by birth, but lost their citizenship because of the prohibition against dual citizenship will once again be Zimbabwean citizens and entitled to registration as voters. [This is also so under the ZANU-PF draft.]
- All prisoners will be qualified to vote [at present prisoners serving sentences of six months or more are disqualified].
- It is not clear if citizens living outside Zimbabwe will be entitled to vote, because the new constitution allows the Electoral Act to lay down residence qualifications for voters. The Electoral Act currently requires voters, with very few exceptions, to reside in Zimbabwe in order to be registered on a voters’ roll, so unless the Act is amended members of the Zimbabwean Diaspora will not be allowed to vote.
Delimitation of constituencies
Elections and the delimitation of constituencies will be conducted by an Electoral Commission, as at present, and the members and staff of the current Commission will continue in office under the new constitution. There will be 210 constituencies for National Assembly elections, the same number as the House of Assembly constituencies under the present constitution. Hence a fresh delimitation of constituencies will not be necessary before the coming elections, though it may be desirable.
Until it is replaced, the current Electoral Act will continue to govern elections under the new constitution, though it will need extensive amendment, over and above the amendments made by the just gazetted Electoral Amendment Act, as will be outlined in Part II of this Constitution Watch. One provision of the new constitution that is worth mentioning is clause 17.3, which prohibits the President or Parliament from altering the electoral law once an election has been called.
Election of President
The President will be directly elected by voters, as at present. Although the new constitution does not say so expressly, if none of the candidates gets an absolute majority [50% + 1] of the votes cast in a presidential election, a run-off election will be held between the two candidates who received the highest number of votes, as provided for in the current Electoral Act, unless this provision is amended.
Under the COPAC draft constitution, presidential candidates will each have to nominate two running-mates who, if the presidential candidate is elected, will become first and second Vice-Presidents. Voters will not vote directly for a presidential candidate’s running mates, but they will be regarded as having been elected as Vice-Presidents if their candidate is elected President. [The ZANU-PF draft has no provision for running mates: the Vice-Presidents will simply be appointed by the President after the election.]
Two Houses of Parliament
There will be two Houses of Parliament, as at present, but some members of Parliament will be elected on a system of proportional representation, others on the present first-past-the-post system. There will be no appointed members.
The number of National Assembly constituencies will be the same  as those of the present House of Assembly. However, there will be an extra sixty women members elected on a system of proportional representation based on the votes cast for the constituency members.
Sixty senators will be elected on a closed party-list system of proportional representation based on the votes cast in each province for constituency members of the National Assembly. In addition there will be two senators elected to represent persons living with disabilities; the manner of their election is left to the Electoral Act. There will be further senators who will not be elected by voters: 16 chiefs elected by provincial councils of chiefs; the president and vice-president of the national council of chiefs; and eight provincial governors.
The new constitution will establish provincial councils for every province except Bulawayo and Harare, and each council will have ten members elected on a closed party-list system of proportional representation based on the votes cast in the province concerned for constituency members of the National Assembly. [In the ZANU-PF draft none of the members of the provincial councils will be elected.]
The draft constitution declares that there must be urban and rural local councils, whose members must be elected by voters in their areas. General elections of local authority councillors must be held simultaneously with presidential and parliamentary elections, as mentioned earlier.
Legislative and Administrative Framework Needed Before Coming Elections
None of the constitutional provisions outlined above will affect the conduct of elections by preventing electoral violence or malpractice. Even if the new constitution is enacted, a great deal will have to be done to put a legislative and administrative framework in place to ensure that the coming general election is free, fair and peaceful — and this framework must be put in place quickly. The President has indicated that he would like to hve an election in March next year, and — as we shall elaborate in Part II of this Constitution Watch — under the present constitution the current Parliament can only last until 29th June and the very latest that general elections can be held is 29th October 2013.
In Part II we shall deal with the legislative and administrative measures that will have to be taken before the next general election can be held.
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