ELECTION WATCH 7/2023
[22nd February 2023]
Delimitation : Error Piled on Error
As we reported in yesterday’s Election Watch 6/2023 [link], the President has issued a proclamation publishing the final delimitation report prepared by the Zimbabwe Electoral Commission [ZEC]. Since then the Government Printer has reissued the proclamation correcting the date on the last page which tells readers when the proclamation was published in the Gazette.
This error in the date at the bottom of the proclamation was immaterial, though it may have confused some readers. There are other much more serious errors that have not been corrected.
1. The Wrong Part of the Report was Published
Section 161(11) of the Constitution lays down what the President must do after receiving the final delimitation report from ZEC:
“Within fourteen days after receiving the Zimbabwe Electoral Commission’s final report, the President must publish a proclamation in the Gazette declaring the names and boundaries of the wards and constituencies as finally determined by the Commission.”
Note that the President is not expected to publish the delimitation report itself; he is supposed to “declare the names and boundaries of the wards and constituencies”. In fact the President did publish the report, but he left out the most important part, the one that sets out electoral boundaries.
It seems that delimitation report he received from ZEC was in the same format as that adopted in previous delimitations:
- first there is the main report, in which ZEC explains the factors it considered when dividing the country into wards and constituencies and the formulae it used in doing so,
- then there is an Annexure A, setting out total population figures,
- then an Annexure B, giving detailed descriptions of ward and constituency boundaries, and
- finally Annexure C, containing maps of the wards and constituencies.
The proclamation published only the main report and left out Annexures A, B and C.
For the purpose of the proclamation and section 161(11) of the Constitution, the only part of the report that had to be published was Annexure B, describing ward and constituency boundaries. The part that was published – the main report – gives the numbers of wards and the names of constituencies, but does not indicate what their boundaries are. As we said in yesterday’s Election Watch, wards are described in this way:
“1. Ward 1: 6 327 Registered voters
This ward has a total of 6 327 registered voters. It is made up of the following polling areas: 6301CHIT0101, 6301CHIT0102, 6301CHIT0103, 6301CHIT0104, 6301CHIT0105, 6301CHIT0106, 6301CHIT0107 and 6301CHIT0108.”
and constituencies are described like this:
“1. BUDIRIRO NORTH: 32 991 Registered Voters
The constituency has 32 991 registered voters. It is made up of wards 34 and 43 of Harare Municipality.”
There is no explanation of what or where the “polling areas” are, and without knowing that it is impossible to ascertain the boundaries of wards and constituencies.
Hence the proclamation does not “declare” the boundaries as it is required to do by section 161(11) of the Constitution. It is therefore a nullity.
2. The Wrong Formula Used for Variations in Voter Numbers
According to section 161(3) and (4) of the Constitution, wards and constituencies must so far as possible have equal numbers of voters. Equality of votes is a fundamental electoral principle laid down in section 155(1)(c) of the Constitution, which ensures that all constituency members of the National Assembly, and all councillors of any local authority area, are elected by more or less the same number of voters. Wards and constituencies cannot be completely equal of course, and section 161(6) of the Constitution allows some variation, but says:
“… no constituency or ward of [a] local authority … may have more than twenty per cent more or fewer registered voters than the other such constituencies or wards.”
In other words, the numbers of voters in constituencies and wards can vary by up to 20 per cent but no more.
ZEC set out the formula it used to calculate the permissible variation in constituencies and wards on pages xii to xiv of its report, and seems to have decided that:
- constituencies could vary by as much as 20 per cent above and 20 per cent below the national average number of voters per constituency,
- wards could vary by as much as 20 per cent above and 20 per cent below the average number of voters per ward in the local authority area concerned.
ZEC used the same formula when preparing the preliminary delimitation report.
Adopting this formula, ZEC said that the maximum number of voters in any constituency could be 33 168 and the minimum number could be 22 112. Unfortunately the difference between these two figures – the maximum and minimum numbers – is far greater than 20 per cent, nearer in fact to 33 per cent, and so is unconstitutional. This unconstitutionality permeates the report. Take for example the two metropolitan provinces of Bulawayo and Harare. Two constituencies taken at random – Mpopoma-Mzilikazi in Bulawayo (22 125 voters) and Mount Pleasant in Harare (33 153 voters) – vary by about 33 per cent, far above the permissible variation. There are several other excessive variations in those two provinces alone, and no doubt many more elsewhere in the country (take for instance Mazowe Central with 33 052 voters and Mudzi North with 22 124 voters – also about a 33 per cent variation).
Because the delimitation is based on a wrong formula or premise, and because there are so many illegal variations between wards and constituencies, the delimitation is fatally flawed.
The first error we have noted – non-publication of electoral boundaries – can be corrected quickly if the President issues a new proclamation setting out Annexure B of ZEC’s final report. Any correction must be published by the 26th February, however, if the new delimitation is to be used for the forthcoming general election (because, as we explained in yesterday’s election watch, section 161(2) of the Constitution says that a delimitation must be completed at least six months before an election to which it applies, and the next general election must be held before the 26th August).
The second error, the use of the wrong formula to calculate voter variations, cannot be corrected quickly, and in fact probably cannot be corrected at all in the short time available. Unless it is corrected the delimitation is invalid, so if it cannot be corrected then, according to the Constitution, the next election will have to be held under the old 2008 delimitation.