The Herald today has an article entitled “voter registration ends amid concernsâ€. In it there are two interesting statements: firstly it states that “a new 30 day voter registration exercise has already been planned forâ€, and secondly, it states that “for the harmonised elections expected next month ZEC requires US $106 millionâ€.
From these statements it appears as if the Herald is still labouring under two misconceptions which have been brought about by ZANU PF propaganda.
Firstly it has been implied that somehow the voter registration exercise is discretionary. Section 6 (3) of the Sixth Schedule of the new constitution states that “the Registrar General of voters, under the supervision of the Zimbabwe Electoral Commission, must conduct a special and intensive voter registration and voters roll inspection exercise for at least 30 days after the publication day.â€
The “publication date†is the day on which the new constitution is published in the Gazette after of course it has been signed by the President. As of this morning it does not appear as if the President has yet signed the new constitution because one would have thought that the Herald would have publicised that fact. I am sure that he will sign shortly but whatever the case the clock only begins ticking from when the new constitution has been published in the Gazette.
Today is 20 May and accordingly even if the constitution is published today the special and intensive voter registration and voters roll inspection exercise will have to run for at least 30 days, namely until at least 20 June. At the risk of labouring the point myself it needs to be emphasised that this is not discretionary but mandatory. It is also mandatory that it has to be intensive; that means that it needs to be a widespread voter registration exercise which will enable every prospective eligible voter to be registered, not the arbitrary and patchy exercise we have seen over the last few weeks.
Secondly the Herald persists with the increasingly ridiculous proposition that the election can somehow be held “next monthâ€, namely in June. Aside from the fact that the new constitution mandates the above-mentioned 30 day voter registration and inspection exercise (which is stated above at best can only end on 20th June), and therefore would only give Zimbabwe a 10 day election campaign (to have an election before the end of June), the Herald conveniently ignores the dictates of the current Electoral Act.
Whilst the current Electoral Act is going to be amended it is trite that it can only be amended with the consent of a majority of the current Members of Parliament. In other words no matter what ZANU PF’s plans may be, if they cannot get the agreement of those who control the majority of the House of Assembly and if they wish to push ahead with unilateral plans to have an election in June, they are stuck with the current Electoral Act.
In terms of section 38(1)(a)(i) of the current Electoral Act the President is obliged to allow a period of at least 14 days between the date of publication of the proclamation of an election and the date on which a nomination court shall sit for the purpose of receiving nominations of candidates. In terms of section 38 (1) (a) (ii) the President is then obliged to allow a period of at least 28 days from the date of the nomination day to the date on which the poll will be held. In other words there has to be a minimum period of at least 42 days between the end of the voter registration/ inspection exercise and the date of the election itself. If the new constitution is gazetted today that means that the election cannot under any circumstances be held before 31st July. I should stress that this is the absolute minimum period allowed by law and it will be exceptionally difficult for the Zimbabwe Election Commission and all those involved in the electoral process to get everything in place to meet that minimum period.
There is one other major complicating factor that relates to the United Nations World Tourism Organisation General Assembly which is scheduled to be held in Victoria Falls from August 24-29. In this contect the point needs to be made that it is possible, some would say probable, that there will be a presidential run-off because it may well be that no individual presidential candidate secures an outright majority.
Section 110 (3)of the Electoral Act states:
“Where two or more candidates for President are nominated, and after a poll taken in terms of subsection (2) no candidate receives a majority of the total number of valid votes cast, a second election shall be held within twenty-one days after the previous election in accordance with this Act.â€
In other words if we press for an election by the 31st July there is a real danger that a Presidential run-off election will be held slap-bang in the middle of the UNTWO Assembly. This is a very serious matter because our national pride is at stake and it is hardly in our national interest to gamble on there not being a Presidential run-off election because if there is one it will seriously disrupt the UNTWO Assembly.
In all the circumstances it will be clear that it is legally impossible to have an election before the end of July and our national interest dictates that because of this impossibility it would be better to have the election after the UNTWO Assembly has concluded.
In any event given the chaos surrounding the current registration exercise if we are to honour the constitutional right given to every Zimbabwe citizen to vote then we must do everything in our power to ensure that all those who are eligible to vote are able to register. Given the huge numbers of people turned away during the current exercise and the funding limitations it seems highly unlikely that this fundamental constitutional right can be honoured within this minimum period of 30 days set out in the new constitution. It makes far more sense to extend that period to ensure that all people eligible to vote are registered. This can be done if we take all the pressure off the current process by reaching a consensus to hold the election after the UNWTO Assembly has been concluded.
Certain ZANU PF functionaries will no doubt argue that the suggestion that the election be held later is a sign of weakness or fear to contest an election. Nothing could be further from the truth-the suggestion is motivated entirely by our need to comply with our own Constitution and laws and what is in the best of national interests of Zimbabwe and all her people.
Senator David Coltart
Secretary for Legal Affairs
MDC
20th June 2013