ZIMBABWE could be heading for elections without electoral reforms if President Emmerson Mnangagwa proclaims the poll date before finalisation of the Electoral Amendment Bill which is before Parliament, experts told the NewsDay yesterday.
Mnangagwa is expected to announce the date for the polls today.
However, according to constitutional experts, the Electoral Amendment Bill must become law before the proclamation is gazetted for its provision to be in effect in the upcoming elections.
The Bill, which seeks among other things, to disqualify electoral candidates with criminal records, sailed through its second reading in the National Assembly recently, but Parliament went into recession until May 30.
Section 157(5) of the Constitution 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”.
Constitutional lawyer Lovemore Madhuku yesterday said if Mnangagwa announced the elections date without a gazette, it did not have legal effect on the Electoral Amendment Bill that was before Parliament.
“If he merely announces the date, which he could have done even at a rally, (this) would not affect the Bill that is in Parliament,” Madhuku said.
“But if he proclaims the date, through a legal Statutory Instrument, then it means this year’s election will be run without the provisions of the Electoral Amendment Bill in effect.”
He added: “A proclamation is a special procedure, whereby they have to gazette a Statutory Instrument. There is nothing that can stop the President from saying an election date shall be this, even at a Press conference. It is just making an announcement.”
But another constitutional lawyer Musa Kika said there was no difference between an announcement and a proclamation of an election date.
“The Electoral Amendment Bill in Parliament will be with no effect on this year’s elections once the elections have been proclaimed,” Kika said.
“That is why Parliament has been trying to fast track the Bill.
“Parliament can still proceed with the Bill, but it won’t apply to the 2023 elections.”
Constitutional expert James Tsabora said it was not unconstitutional for Mnangagwa to announce the election date tomorrow, though it had some constitutional implications.
“It is not unconstitutional (for the President to announce the election date today). But it has constitutional implications. It means the Electoral Amendment Bill won’t have an impact since it needs more time to be finalised in court,” he argued.
Legal think tank Veritas, however, said Mnangagwa had until the end of June to gazette the election proclamation in compliance with section 38 of the Electoral Act.
Meanwhile, opposition Citizens Coalition for Change (CCC) said if Mnangagwa proclaimed elections today, it proved that the Zanu PF-led government had no political will to implement the electoral reforms.
“We have an electoral law that contradicts the Constitution,” CCC deputy secretary for elections Ellen Shiriyedenga said.
“We are not happy because it was grossly inadequate to address the concern of integrity of the electoral system.”
She said her party was using the Parliament proceedings to effect other key amendments that they had proposed.
“We were hoping that the parliamentary process would incorporate some of these issues ahead of the elections. But if Mnangagwa proclaims the date, it clearly shows he is not keen to address the concerns and is not in a position to adhere to regional and international standards of electoral accountability,” Shiriyedenga said.
Zanu PF secretary for administration Obert Mpofu said the ruling party had no issues with whether or not the Electoral Amendment Bill made it for the 2023 elections.
“There are two issues here. If the President proclaims the election date, then he would be doing so in accordance with the Constitution. Some of these issues are not Zanu PF issues.
“They are for Parliament and all other involved parties. We are just looking at the proclamation. Other issues are not of our concern,” Mpofu told NewsDay yesterday.
On Saturday, during the National Cultural Day commemorations in Binga, Mnangagwa said he would announce dates for the elections today.