ELECTION WATCH 3/2018
[18th March 2018]
Council Elections: President’s Proclamation of New Beitbridge Municipality
Usurps ZEC’s Functions
Unless ZEC acts to rectify the situation, people in Beitbridge will not be able to vote for councillors to represent them. And Beitbridge is not the only place that will have this problem.
Zimbabwe Electoral Commission [ZEC] is Responsible for Delimiting Wards
Section 160(2) of the Constitution provides as follows:
“For the purpose of elections to local authorities, the Zimbabwe Electoral Commission must divide local authority areas into wards according to the number of members to be elected to the local authorities concerned.”
The section could hardly be clearer: it is the constitutional function of the Zimbabwe Electoral Commission [ZEC] to define the boundaries of wards, and no one else can do it. As if to reinforce the point, section 239(f) of the Constitution states that one of ZEC’s functions is “to delimit constituencies, wards and other electoral boundaries.”
As the Constitution is the supreme law, any law inconsistent with section 160(2) is invalid to the extent of the inconsistency [Constitution, section 2].
President’s Division of Beitbridge into Wards for Voting is Unconstitutional
It is unfortunate that the President’s recently gazetted proclamation establishing the Beitbridge Municipal Council is clearly inconsistent with section 160(2) of the Constitution, in that it divides the municipal area into wards.
The proclamation concerned is Proclamation 1 of 2018, published on 9th March in Statutory Instrument 28/2018. It replaced the former Beitbridge Town Council with the new municipal council, fixed the municipal area and specified that there must be six councillors. In doing this it was legally in order. It went on, however, to include descriptions of the new municipality’s six wards, and here it was decidedly not legally in order because it necessarily implied that the President had divided the municipal area into wards and by doing so had acted inconsistently with section 160(2) of the Constitution.
Reason for Inconsistency – Laws not Aligned with Constitution
Why was this allowed to happen? Because the Urban Councils Act and the Rural District Councils Act still contain provisions purporting to allow the President to divide local authority areas into wards and to alter the wards from time to time. For instance, section 4 of the Urban Councils Act empowers the President by proclamation to establish a municipality, to fix the council area, and “after consultation with the Zimbabwe Electoral Commission, to divide the council area into any number of wards”. These provisions are inconsistent with section 160(2) of the Constitution to the extent that they allow the President to divide a local authority’s area into wards. The President cannot do so, even if he consults ZEC. Only ZEC itself can do it.
The words we have quoted from section 4 of the Urban Councils Act – and the equivalent words in the Rural District Councils Act – are so clearly inconsistent with section 160(2) of the Constitution that no declaration of invalidity by the Constitutional Court is necessary; they are self-evidently invalid and void. When a new local authority is established, therefore, the President’s proclamation can lawfully fix its council area and name, but should not divide the council area into wards. Division into wards is a matter for ZEC alone, once the local authority has been legally established by the President’s proclamation.
Need for Constitutional Alignment of Our Laws
The error in the proclamation shows how important it is for all our laws to be aligned constitutionally. Veritas has been pushing for the Urban Councils Act and the Rural District Councils Act to be amended to bring them into line with section 160(2) of the Constitution. To no avail. As a result, the inevitable has come to pass and the President’s advisers have allowed him to publish a proclamation which, in an important respect, is null and void.
[Note: Veritas has drafted an Electoral Amendment Bill which contains amendments to the Urban Councils Act and the Rural District Councils Act, bringing their provisions into line with the Constitution in so far as they relate to elections and ward boundaries. The Bill is available on the Veritas website [link].
The boundaries which the President purportedly fixed for Beitbridge may be the same as the previous ward boundaries, but that does not make them legal. The municipality of Beitbridge is a new entity, and its boundaries do not carry over automatically from the old town council. The boundaries have to be fixed afresh, which is why the President tried to fix them in his proclamation. But the President had no power to do so, even if he consulted ZEC, so the ward boundaries are void.
Wider Implications of the Unconstitutional Proclamation
The illegality in the proclamation is not just a technicality, or of academic interest only.
As we have indicated, the ward boundaries are void because of the illegality, so although the Beitbridge Municipality has six councillors there are currently no properly delimited wards for them to represent. And unless the proclamation is rectified the municipality will have no wards for the forthcoming general election so it will not be possible for any new councillors to be elected. Councillors cannot stand for non-existent wards.
It is not only Beitbridge that is affected. Ever since 2013, when the Constitution came into force, wards have been created and abolished and their boundaries changed, without ZEC’s involvement. For example, Proclamation 4 of 2013 altered the wards of Makoni, Proclamation 5 of 2013 altered Rusape’s wards and Proclamation 3 of 2014 altered the wards of Gokwe South. All these new ward boundaries will have to be ratified by ZEC if there are to be valid elections for councillors to represent them.
A lot of unnecessary trouble that could have been avoided if the Urban Councils Act and the Rural District Councils Act had been amended to align them with the Constitution.