New Zimbabwe.com

Poll date: Zvoma got it wrong

I HAVE read the Clerk of Parliament Austin Zvoma’s article in the Sunday Mail of April21, 2013, in which he attempts to clarify the constitutional position regarding thefixing of dates for general elections.
 
The net effect of his argument is that thelatest date when the next election can be held is June 30, 2013 – that being thefirst day after the automatic dissolution of the current Parliament at theexpiry of its five-year term.
This date seems to favour a section of the country’s political field. Regrettably,the Clerk of Parliament has relied on a clearly erroneous interpretation of the Constitution to arrive at the conclusion he makes. While he cites the relevant constitutional provisions, I respectfully disagree with his interpretation of those provisions.
The relevant provisions are section 63(4), section 63(7) and section 58. There is no issue with section 63(2) which states that the President may at any time dissolve parliament. Neither is there any contest on the effect and applicability of section 63(5) and (6) under which the life parliament may be extended.
It is correct that under section 63(4), unless the President dissolves Parliament earlier, the life of Parliament extends up to a period of five years. This five-year period commences on the day the President assumes office, which in our case is, technically, June 29, 2008. Therefore unless extended, the current Parliament automatically expires on June 29, 2013.
Section 63(7) is a provision that anticipates a situation where the President would have exercised his powers under section 63(2) to dissolve Parliament, before the expiration of the five-year term of parliament. It provides that the President may issue a proclamation for the dissolution of Parliament but such dissolution would only take effect on the day preceding the day of the general election fixed in accordance with section 58(1). It is for this reason that parliamentarians have always retained their positions until midnight of the day preceding the general election.
The purpose of section 63(7) is to ensure the continuation of Parliament, at least nominally, until the day of electing the new parliament. Otherwise, the President could dissolve parliament and run the country for an unlimited period without the legislative arm of the State.Advertisement

Obviously, this does not apply in situations where the life of Parliament has expired automatically by operation of law, as is provided for under section 63(4). And this is precisely why section 63(7) is made subject to the provisions of section 63(4).
Section 63(7) provides for situations when the dissolution or prorogation of parliament takes effect other than in circumstances where section 63(4) applies. This is why section 63(7) begins with the words: “Subject to the provisions of section 63(4) …” The effect of these words is to make the provision conditional upon the applicability of section 63(4). Put differently, section 63(7) does not affect a situation where section 63(4) applies.
So what happens in the situation where the parliament expires automatically under section 63(4)? Does it mean the President is constrained to set the date only on the day after the expiration of the life of Parliament? Or is there an allowance to set the date within a period of 4 months after that automatic dissolution?
The correct answer is that the President is not constrained but legally has a period of four months within which the date can be set. This, of course, is quite the opposite of the Clerk of Parliament’s argument in his article. With respect, the Clerk of Parliament’s argument is flawed.
If one looks at section 58, which regulates the fixing of election dates, it all becomes the more obvious. It is important to set out verbatim what section
58(1) states:
“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.”
This provision is clear enough in regard to a situation where Parliamentautomatically dissolves under section 63(4). It means that a general electioncan be held within a period of up to four months after the dissolution ofParliament under section 63(4).
If one removes reference to the words relating to the situation where the President dissolves Parliament by proclamation under section 63(7), which scenario is different from where Parliament automatically dissolves, section 58(1) would read as follows:
“A general election shall be held on the day or days within a period not exceeding four months after … the dissolution of parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”
I have removed the words, “after the issue of a proclamation dissolving Parliament under section 63(7) …” for ease of reading and understanding the provision in regard to situations where section 63(4) applies.
In his article, the Clerk of Parliament clearly erred in omitting reference to the words in section 63(7) which make its application subject to the provisions of section 63(4) which as I have observed apply to situations where Parliament dissolves automatically by operation of law. In such a situation, there is up to four months after automatic dissolution within which to set the date for the general election in accordance with section 58(1).
Of course there is an anomalous situation in this case because it means while the President and his/her executive can continue for up to four months, the legislative arm of the State would have expired by operation of law. In other words, there will be no parliament for that period, itself a scenario that is a serious hazard to the health of democracy.
It is at this point that there is convergence of views with the Clerk of Parliament on the need to find a way, via the process of enacting a new constitution, to extend the life of parliament for a limited period to enable it to conduct its important work on aligning current laws with the anticipated constitutional dispensation.
As a word of caution, it is not advisable that the Clerk of Parliament should enter matters of current party political controversy. His attempt at ‘clarifying’ matters in the Sunday Mail is ill-advised, particularly where is his legal position is clearly erroneous.
Tererai Mafukidze is a practising lawyer