SECTION 110 (3) of the Electoral Act states that if none of the candidates in a presidential election receives an absolute majority of the votes cast, the top two candidates must go through to a second round.
This second round must be held “within 21 days of the previous election”. ZEC now purports to have extended this period, by substituting “90 days” for “21 days”. (March 29 – June 27).
In doing so, ZEC relied on Section 192 of the Electoral Act which states that ZEC can amend the time limits contained in the Act.
However, a careful reading of the Constitution reveals that Section 192 of the Electoral Act is in fact unconstitutional and therefore invalid. Accordingly, any purported changes to the Electoral Act effected by ZEC in terms of Section 192 are obviously also unconstitutional and invalid. Section 28 (4) of the Constitution stipulates that “the procedure for … the election of the President shall be as prescribed in the Electoral Law.” Section 113 (1) of the Constitution defines “Electoral Law” as “the Act of Parliament having effect for the purposes of Section 58 (4) which is for the time being in force.” Section 58 (4) of the Constitution is concerned with parliamentary elections and says: “An Act of Parliament shall make provision for the election of members of Parliament.”
As can be seen, these three constitutional provisions are closely linked and must therefore be read together. The requirement that only Parliament can enact the law governing parliamentary elections (contained in Section 58 (4)) applies equally to presidential elections through the operation of Sections 28 (4) and 113 (1).
As Justice Sandura said in Tsvangirai v Registrar General and Others 2002 (1) ZLR 268 (S), “[w]hat all this means is that the legislation which comprises the electoral law must be an Act of Parliament”. He added that “[t]hat Act of Parliament is the Electoral Act.”
Since the Constitution stipulates that only Parliament can make Electoral Law, Parliament cannot abrogate its duty in that regard by purporting to give other persons and bodies the authority to make Electoral Law. Section 3 of the Constitution says: “This Constitution is the Supreme Law of Zimbabwe and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.” Since Section 192 of the Electoral Act is clearly inconsistent with the constitutional duty imposed on Parliament to enact electoral law, it must be void.
The case of Tsvangirai v Registrar-General, referred to above, was a 2002 Supreme Court decision in which the constitutionality of Section 158 of the old Electoral Act (a provision similar to Section 192 of the current Act) was challenged. Although Justice Sandura’s judgment was a dissenting judgment, the majority of the court dismissed the application on the (incredible) ground that the applicant lacked locus standi. The majority judgment (unlike that of Sandura) did not therefore address the substantive merits of the application. Sandura’s view that Parliament alone must make Electoral Law has thus not been contradicted by the Supreme Court in any case, and must therefore be regarded as accurately stating the law.
Lecturer, Constitutional Law,
(Department of Political and Administrative
Studies), University of Zimbabwe.