ELECTION WATCH 4/2023
Delimitation : Over to ZEC
In our Election Watches 1/2023 [link], 2/2023 [link] and 3/2023 [link] we recounted the progress of the preliminary delimitation report from the 26th December, when it was presented to the President by the chairperson of the Zimbabwe Electoral Commission (ZEC), to the 13th January, when an ad hoc parliamentary committee laid before both Houses of Parliament its findings and recommendations on the report. We outlined the committee’s findings, which were largely critical of ZEC’s report.
In this bulletin we shall recount what has happened since then and indicate what the next stages should be.
Progress So Far
The National Assembly and the Senate debated the ad hoc committee’s findings and recommendations on the 17th and 18th January, and both Houses resolved to accept them. The Speaker accordingly presented them to the President on the 19th January together with a transcript of what was said in Parliament about them, and the next day the President handed them to the chairperson of ZEC. [At this stage as far as we know the President did not comment on them.]
On receiving Parliament’s findings and recommendations on her Commission’s report, the chairperson of ZEC said:
· ZEC would examine all the recommendations and concerns.
· The President’s comments on the report would be sent to ZEC in the coming week, and commissioners would then meet to look at all the recommendations.
· Absolutely nothing went wrong with the delimitation process. There was no miscalculation of the 20 per cent permissible variation between constituencies and wards. Technical experts who advised on the 2007 delimitation took part in the current delimitation: hence, she said, “We have institutional memory”.
· The general election has to be held between the 26th July and the 24th August this year, which means that the final delimitation report has to be gazetted between the end of January and mid-February.
Some of these points require comment:
· Strictly speaking, the President’s comments on the preliminary delimitation report should have been given to ZEC at the same time as Parliament’s comments – section 161(8) of the Constitution states that ZEC must receive all the comments within 14 days after the report was laid before Parliament, and the 14-day period ended three days ago, on the 21st January. It doesn’t really matter when he sends in his comments, however, so long as ZEC has time to consider them.
· ZEC unquestionably miscalculated the 20 per cent variation limit. The effect of section 161(6) of the Constitution is that the number of voters in constituencies and wards may not vary by more than 20 per cent. As we explained in Election Watch 2/2023, this means that the difference in the number of voters between any one constituency and any other constituency anywhere in Zimbabwe may not vary by more than 20 per cent. Similarly, the number of voters in any two wards of a council area may not vary by more than 20 per cent. ZEC’s own report shows it wrongly adopted the formula laid down in the old Lancaster House constitution, which allowed constituencies and wards to vary by up to 20 per cent above and 20 per cent below the average – meaning that the numbers of voters in constituencies could vary by up to 40 per cent.
The previous delimitation in 2007 was conducted under the Lancaster House constitution, so the formula used by ZEC was correct then. It is not correct now because the new Constitution employs a different formula. Institutional memory is a good thing, so long as it does not trick institutions into living in the past.
· The final delimitation report has to be published six months or more before polling day in the next general election; if it is not, then in terms of 161(2) of the Constitution, the old 2007 delimitation will apply to the election. We explained in Election Watches 3/2022 [link] and 2/2023 [link] that polling day in the general election will have to be between the 28th July and the 26th August 2023, both dates inclusive. This means that the final delimitation report must be published by the 28th January – this coming Saturday – to meet the earliest polling date and by the 26th February to meet the latest polling date.
Hence the chairperson of ZEC was correct when she said that the final delimitation report has to be published between the end of January and the middle of February. What she did not point out however was that the later it is published the less leeway there will be in fixing the date of the general election – and if the report is published after the 26th February the new boundaries cannot be used in the election.
The Next Stages
ZEC now has to reconsider its delimitation in the light of Parliament’s recommendations and any comments the President may make. According to section 161(9) of the Constitution, once a preliminary delimitation report has been referred back to ZEC for further consideration of any matter or issue:
“… the Zimbabwe Electoral Commission must give further consideration to the matter or issue concerned, but the Commission’s decision on it is final.”
This doesn’t mean however that ZEC can disregard the Constitution. ZEC’s decisions are final and conclusive in matters where ZEC can exercise a discretion – for instance to draw a boundary in order to take account of particular physical features or to reflect community of interest between voters – but in matters of constitutionality ZEC has no discretion: the final delimitation report must comply with the Constitution. Hence if Parliament correctly points out that ZEC has used an unconstitutional formula to calculate differences in voter numbers between constituencies and wards, ZEC must correct its mistake. It has no discretion in the matter.
Once ZEC has made the necessary corrections to its report, it must submit a final report to the President as soon as possible (section 161(10) of the Constitution) and the President must publish the final report in the Gazette within 14 days (section 161(11)).
There have been suggestions that a referendum should be held as to whether this year’s general election should be postponed until conditions are more favourable for the holding of free and fair elections. Certainly, conditions at present are not very auspicious: political violence is increasing, and ZEC’s failure to conduct a delimitation in accordance with the Constitution does not inspire confidence in its ability to conduct a general election. On the other hand, there are several objections to the proposal:
· The Constitution does not envisage the holding of such a referendum.
· There is no provision in the Constitution for elections to be postponed beyond the five-year life of Parliament, so any postponement would necessitate a constitutional amendment.
· Time is now so short that it would be impossible to hold a referendum before the elections are due. What if a majority of voters rejected the proposal, and decided that elections should go ahead? It would probably be too late to give effect to their decision.
Can ZEC Meet the Deadline?
We observed in previous bulletins that ZEC’s disregard of the correct formula for calculating differences in voter numbers means that many constituencies and wards in the preliminary report are above and below the 20 per cent limits. Correcting these errors will entail substantially revising the report. And ZEC will also have to look at the other points raised by Parliament’s ad hoc committee: the failure to consult chiefs, for example, and lack of clarity in the maps.
All this will take time, and the time available is short. We hope ZEC will be able to meet the deadline, because the credibility of this year’s general election depends on it.