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Legal truth: Elections due by June 30

I HAVE been following with interest the number of conflictual and confusing articles and pronouncements in the print and electronic media on the important national topical subject of what the Constitution of Zimbabwe says about dissolution of Parliament and the date for the holding of a general election.
Some of these articles and pronouncements are uninformed and have the effect of misleading the public on the important national issue of elections. In this article, I explain in simple language what the Constitution says on the subject.
In doing so, I am aware that I will arouse and attract the interest, both positive and negative, of those who have been making pronouncements as well as readers. Indeed, I expect and welcome both reactions as my intention is that the discourse will educate and better inform the public.
Interpretation of the Constitution on this subject varies from those who argue that the deadline for the holding of elections is June 29, 2013, to others who conclude that elections can be delayed to the end of September or October 2013 or some time thereafter this year.
It is, therefore, necessary that we identify and closely examine the relevant provisions of the Constitution in order to reach clarity on the matter. This is necessary in view of the fact that the dissolution and date of elections are matters of public interest.
The relevant provisions of the Constitution for this purpose are sections 63 and 58 in that order. In interpreting these provisions on dissolution and elections, I may refer to other sections of the Constitution.
Section 63 of the Constitution states that:
 
“63    Prorogation or dissolution
 
(2) Subject to the provisions of this Constitution, the President may at any time dissolve Parliament.
(4) Parliament, unless sooner dissolved, shall last for five years which period shall be deemed to commence on the day the person elected as President enters office in terms of section 28(5) after an election referred to in section 28(3), or shall then stand dissolved: Provided that, where the period referred to in this section is extended under subsections (5) and (6), Parliament, unless sooner dissolved, shall stand dissolved on the expiration of that extended period.Advertisement

(5) At any time when Zimbabwe is at war, Parliament may from time to time extend that period specified in subsection (4) by not more than one year at a time:
Provided that such period shall under this subsection not be extended by more than five years.
(6) At any time when there is in effect a declaration in terms of section 31J(I), Parliament may from time to time extend that period specified in subsection (4) by not more than six months at a time:
Provided that such period shall not be extended under this subsection by more than one year.
(7) Subject to the provisions of subsection (4), any prorogation or dissolution shall be by proclamation in the Gazette and, in the case of a dissolution, shall take effect from the day preceding the day or first day, as the case may be, fixed by proclamation in accordance with section 58(1) for the holding of a general election.”
On elections, Section 58 of the Constitution states that:
 
“58    Elections
(1) A general election and elections for members of the governing bodies of local authorities shall be held on the day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) and, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”

Having cited all the sections of the Constitution relevant to the life of Parliament, its dissolution and the fixing of a date for the holding of general elections, I will now explain, step by step, what these sections mean. This is in order to clarify for the public the issue of the date for the holding of elections.
# Subsection 63(2) states that the President can at any time dissolve Parliament and, on this, there is no disagreement.

# Subsection 63(4) states that the life of Parliament shall be five years, but can be less than five years as the President can dissolve it before its full term. The President dissolved the Sixth Parliament after about three and half years in 2005. This is what section 63(2) above says. The words “shall last for five years” mean that the life of Parliament must come to an end upon the expiry of that.
# The same section 63(4) goes on to clarify that the five years shall begin on the day the person elected as President assumes office, i.e. he is sworn into office. The section categorically declares that if the President has not dissolved Parliament “at any time” before the five years have expired, Parliament “shall then stand dissolved.”
This means that should the President not exercise his executive discretion to dissolve Parliament before its five-year life expires, then Parliament shall automatically stand dissolved. This is more like the conversation of a person whose airtime is exhausted while he is speaking on the mobile phone being automatically terminated.
Section 63(4) further provides for only two exceptional circumstances under which the life of Parliament can be extended. These circumstances are explained in subsections (5) and (6).
# Subsection (5) states that the life of Parliament can be extended by a period of one year at a time “at any time when Zimbabwe is at war” and such period shall not be extended for more than five years.
# Subsection (6) also states that the life of Parliament can be extended by a period of six months at a time “at any time when there is in effect a declaration” of a State of Emergency envisaged in section 31(J)(1) of the Constitution. That period of six months shall not be extended for more than one year.
# Thus we can see that the life of Parliament which shall last for five years can only be extended under only two exceptional circumstances explained in subsections (5) and (6). The environment in Zimbabwe is neither a war nor a state of emergency situation described in the above subsections. Therefore, there are no grounds for extending the life of Parliament beyond its five year life as envisaged by subsections (5) and (6) of section 63 of the Constitution.
# We have seen that section 63 of the Constitution in subsections (5) and (6) provides only two circumstances under which the life of Parliament may be extended. We have also noted that section 63(7) clearly states that dissolution of Parliament, whether before or at the expiry of the five year life of Parliament, shall take effect on the day preceding the day or first day of a general election fixed by proclamation in accordance with section 58(1) of the Constitution.
# The effect of this provision is that a general election must take place a day after dissolution of Parliament. In other words, there cannot be a gap between dissolution and the holding of a general election. Such a gap beyond the normal (five years) or extended life (up to a maximum of five years or up to a maximum of one year) would be unconstitutional. This is buttressed by a provision for only two exceptional circumstances under which the life of Parliament may be extended. Otherwise Parliament shall stand dissolved upon the expiry of its five year life. It is worth noting that the President, more than anyone else, is sworn to uphold this Constitution and has religiously done so.
In order to dispel the notion that section 58(1) of the Constitution provides a period of up to four months within which elections can be held after dissolution of Parliament, I will now deal with what the section says and means. The section unequivocally states that a general election “shall be held on the day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament.”
The operative words here are “after the issue of a proclamation” dissolving Parliament. In essence, this section gives the President a four-month time-frame within which to announce the date of a general election. Put differently, the President cannot issue a proclamation dissolving Parliament more than four months before.
Therefore, the earliest date he could have issued a proclamation dissolving Parliament is March 1, 2013. Although he still has about two-and-a-half months before June 29, logic says a proclamation should give adequate time to the Zimbabwe Electoral Commission and other stakeholders.
This section has been mischievously interpreted even by some prominent lawyers as meaning that a general election can be held within a period not exceeding four months “after dissolution of Parliament”.
Section 58(1) refers to elections being held within a period of four months after an announcement (issue of a proclamation) dissolving Parliament before the date of a general election determined after taking into account the provisions of section 63(7) and (4).
The purpose of section 58(1) is that because a general election is very important national event, the President must officially inform political parties and the electorate for them to be prepared.
The President cannot announce dissolution of Parliament on the day nor can he inform them the date of a general election just a day before. To read section 58(1) as allowing a period of up to four months to hold a general election after the dissolution of Parliament is to attempt to create circumstances for a third extension of the life of Parliament, which would be unconstitutional. Some arguments used, which are political or logistical but not constitutional, are that end of June is too short a time for holding a general election etc.etc.
In view of the fact that President Robert Mugabe was sworn in as President on June 29, 2008, the five years of Parliament shall expire on June 29, 2013, after which, unless he sooner dissolves it, Parliament shall stand dissolved.
In terms of section 63(7) of the Constitution, that dissolution is the “day preceding the day or first day” of a general election which must take place the next day on June 30, 2013.
The dissolution of Parliament and fixing of a date for a general election will continue to be regulated by the provisions of the current Constitution and can only come under a new Constitution if it is enacted before the expiry of the term of the Seventh Parliament. Interestingly, new provisions of the proposed Constitution state:
“143 Duration and dissolution of Parliament
(1)    . . . and Parliament stands dissolved at midnight on the day before the first polling day in the next general election called in terms of section 144.”

and
“158     Timing of elections
(2)    (1)    A general election must be held so that polling takes place not more than—
(3)        (a)    thirty days before the expiry of the five-year period specified in section 143;”
Unless amended to provide for dissolution and the holding of a general election under the current Constitution, the new Constitution would require the President to dissolve Parliament thirty days before the expiry of its term.
The question is whether there is a constitutional option to hold a general election later than end of June 2013. The simple answer is “Yes”, provided Parliament amends the Constitution to create a third exceptional circumstance for the extension of the life of Parliament after the expiry of the five-year life of the Seventh Parliament in addition to subsections (5) and (6) of section 63.
Austin Muranganwa Zvoma is the Clerk of the Parliament of Zimbabwe. He has served in this capacity since November 1, 1989