BILL WATCH 20-2023 - Election Proclamation Now Impossible in May

BILL WATCH 20/2023

[21st May 2023]

Parliament Will Not Sit Again until 30th May

Election Proclamation Now Impossible in May

Media reports have spread the word that the President will announce the dates for the 2023 general election in May. This has been understood as meaning that the Presidential election proclamation calling the election will be gazetted during May.  This bulletin gives a brief explanation of why this cannot happen.

No electoral legislation can apply to an election after the President has formally called by proclamation published in the Government Gazette.  The authority for that is section 157(5) of the Constitution which provides that:

After an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election.”

The Electoral Amendment Bill must, therefore, become law as an Act before the proclamation can be gazetted. 

Developments on that Bill in Parliament on Thursday 18th May have rendered it constitutionally impossible for the proclamation to be gazetted in May.  We shall explain why in point form:

  1. Both Houses of Parliament are now in recess until Tuesday 30th May, having adjourned to that date after their sittings on Thursday 18th May.  [Earlier on Thursday afternoon the Speaker had announced the suspension of Parliamentary business, including committees, until 30th May ”in respect of the Africa Day holiday in the coming week”.]
  2. The Electoral Amendment Bill must become law before the proclamation is gazetted.  It is essential to the conduct of the election if the election is to comply with the Constitution Amendment No. 2 of 2021.
  3. On Thursday 18th May the Bill was given its Second Reading.  The Committee Stage was still in progress, amendments having been made, when just after midnight, a halt was called after a marathon sitting.  The National Assembly then adjourned until Tuesday 30th May 
  4. Even if Parliament ­manages to complete the Electoral Amendment Bill on the 30th and 31st May, there is no possibility that the Bill can become law before a date in June.
  5. The President will have to wait before having the election proclamation gazetted.  He has at least until the end of June to gazette it while still remaining in compliance with section 38 of the Electoral Act.

Our next Bill Watch bulletin will summarise what else happened in Parliament last week.

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