ELECTION WATCH 1/2023
[5th January 2023]
The Preliminary Delimitation Report
The Zimbabwe Electoral Commission [ZEC] has been conducting a delimitation exercise since last June in order to fix the boundaries of constituencies and wards for the general election due to be held later this year, and on Monday 26th December the Commission’s chairperson presented the preliminary delimitation report to the President.
We examined the law on delimitation in our Election Watch 3/2022 of the 19th September 2022 [link], and for the purposes of this bulletin it is only necessary to outline what is supposed to happen after the preliminary delimitation report has been presented to the President. The procedure is laid down in section 161 of the Constitution:
After receiving the preliminary report the President must lay it before Parliament – i.e. the National Assembly and the Senate – within seven days [section 161(7)].
Within 14 days after that, the President must refer the preliminary report back to ZEC for the Commission to consider any issue raised by himself or Parliament. ZEC must give consideration to any issue so raised, but its decision on them is final [section 161(8) & (9)].
Once ZEC has prepared its final delimitation report it must send the report to the President, who must publish it in the Gazette within 14 days [section 161(10) & (11).
It is important to note section 161(2) of the Constitution, which states:
“If a delimitation of electoral boundaries is completed less than six months before polling day in a general election, the boundaries so delimited do not apply to that election, and instead the boundaries that existed immediately before the delimitation are applicable.”
As we explained in our Election Watch 3/2022, this means that ZEC’s final delimitation report must be published by the 28th January if the new boundaries are to apply to this year’s general election.
What Has Been Done So Far
What the President has done
On the 30th December the President issued Proclamation 5 of 2022 [link] in which he summoned Parliament to an extraordinary session tomorrow, the 6th January, so that the preliminary delimitation report can be laid before it – and, although the proclamation does not say so, the report will have to be laid before both the Senate and the National Assembly in terms of section 338 of the Constitution.
What Parliament has done
Parliament has issued a notice to its members saying that tomorrow’s sitting will be held virtually, with only a few members attending physically.
The Acting Clerk has sought permission from the Committee on Standing Rules and Orders to appoint an ad hoc committee to analyse the Delimitation and has proposed the following timetable:
6th January: Tabling of the preliminary report in both Houses of Parliament
7th January: Ad hoc committee to begin its work on the report
13th January: Ad hoc committee to report its findings and recommendations to both Houses
17th & 18th January: Both Houses to debate the committee’s findings and recommendations
19th January: Parliament’s recommendations to be presented to the President.
This timetable, it will be seen, gives ZEC just nine days before the 28th January deadline within which it must consider recommendations made by the President or Parliament and issue its final delimitation report. If the deadline is not met, the existing – i.e. old – electoral boundaries will apply in the next general election.
Have the Time-limits Been Met So Far?
No they haven’t. When the preliminary report was presented to the President on the 26th December, a government spokesman said:
“In terms of the law, His Excellency is required to cause the report to be tabled before the Parliament of Zimbabwe within seven working days from the date of presentation of the said report.”
With respect, this is incorrect. Section 161(7) of the Constitution says the preliminary report must be laid before Parliament “within seven days”, not seven working days. When the Constitution says “days” it means what it says. This is clear from section 336(3), which provides that:
“Whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to … the next day that is not a Saturday, Sunday or public holiday.”
This provision would be unnecessary, indeed meaningless, if Saturdays, Sundays and public holidays – non-working days – are to be excluded from any period, because in that event a period could not possibly end on a non-working day.
Correctly construed, section 161(7) of the Constitution required the President to cause the preliminary delimitation report to be laid before Parliament within seven actual days from the 26th December, when he received it. In other words, he should have summoned Parliament to meet by the 3rd January at the latest. On the same construction, section 161(8) requires the President to return the preliminary report to ZEC within 14 actual days from the date on which it should have been laid before Parliament, i.e. by the 17th January.
Does the failure to meet the time-limits matter?
Any failure to comply with the Constitution is to be deprecated, but in this case the failure probably does not invalidate what has been done so far because if it did it would mean that the entire delimitation process would be nullified because of a failure to meet a time-limit by a couple of days.
On the other hand, the failure to meet the constitutional time-limits does mean that publication of the final delimitation report will be pushed closer to the ultimate deadline, the 28th January, after which the new electoral boundaries cannot be used for the mid-year general election. Parliament’s consideration of the preliminary report will be restricted to just two days, and ZEC will have only nine days to decide what to do about Parliament’s recommendations and to publish its final report.
There are two morals here:
1. Always follow the Constitution, and
2. Don’t leave things to the last minute.