The postponement of the 2023 general elections will throw Zimbabwe into a mild constitutional crisis, as from August 26, 2023, there won’t be any legitimately elected office bearer in the presidency, parliament as well as local authorities.
This was said by the National Democracy Institute of International Affairs (NDI) Senior Programmes Officer Jack Zaba.
It comes after MDC-T leader Douglas Mwonzora challenged the Zimbabwe Electoral Commission (ZEC)’s delimitation report saying it was flawed.
In his court application, Mwonzora argued that if elections are using the contentious ZEC delimitation report, the results can be easily challenged before a court of law and be invalidated.
The Election Resource Centre (ERC) recently said there is no legal basis that will allow the current government to legitimately remain in power post-26 August 2023.
Speaking to TellZim News, Zaba said that whether or not the polls are to be postponed, remains the duty of the Constitutional Court to decide. He added:
Whether Mwonzora’s application will cause changes to election dates, remains the duty of the Concourt and the honourable judges there would help in interpreting this kind of law but you will find that this was the prayer filed by the applicant (Mwonzora) when he said ZEC must re-do the delimitation report and in so doing to give ZEC the time, elections will have to be postponed.
While this matter is really sub judice, you will find that there are a lot of aspects to be considered and one of those is what Veritas labelled that there is an absence of clearly laid out law or legal provisions providing for the Concourt to postpone the elections.
While the Concourt has the powers to condone certain actions, the absence of clearly laid out laws leaves us with questions on whether the court in its wisdom can postpone elections but one thing to consider is the imagination that in case of postponement, what effect will it have on other constitutionally-mandated organs of government.
I mean that from August 26, 2023, the tenure of both the president and parliament would have expired and the question is if the Concourt decides in its wisdom to extend or postpone the dates of the polls, will it equally have powers to extend the powers of the president and parliament?
The appeal by Senator Mwonzora does not appeal for extension of tenures for both president and parliament and as the law is structured currently, it does not allow for a vacuum after August 26 when the country may have no legitimately elected president or parliament and we still we will go for elections.
In any case who will proclaim the dates for the elections after we no longer have a legitimate president?
From a political opinion it may be difficult to postpone an election noting that we will be thrown into a situation where in trying to heal a possible election breach through the delimitation exercise, we will be plunged into another constitutional crisis.
The Concourt may decide to postpone the dates but from an electoral law perspective, it may be difficult to do as it leads the nation into a constitutional crisis.
The issues raised by Mwonzora have validity in terms of the constitution for example if one looks at the issue of 20 percent threshold which to me is clear ZEC ought to have followed what the constitution says, the debate over matrix.
Parliament raised the same issue and so did other key stakeholders and the appeal by Senator Mwonzora echoes that the calculation by ZEC has left us in a quandary because in some constituencies the variance of 20 percent is exceeded by far.
For example, look at Bulawayo Central with about 22 000 voters compared to Mount Pleasant with 33 000, its clearly beyond 20 percent, so if one reads and interprets the constitution, he/she can clearly see that there is a lot of sense in the appeal.
The Concourt may help validate that but basic calculations will tell you that the 20 percent applies across all constituencies not within a province as ZEC tried to convince us.
Also, the fact that some of his (Mwonzora) appeals are valid is the mere fact that the Concourt looked at the heads of arguments and gave them access to the constitutional court hearing and that may mean the appeal has constitutional validity.
The Concourt has in terms of the possible scenarios an array of decisions to make with the first being whether to order ZEC to re-do the report and they have to be convinced by the applicant that the report is ‘fatally unconstitutional’.
Either the court may order ZEC to sustain or re-do the report or in that case, that is what may trigger situations linked to the postponement of election dates.
If the court decides that ZEC presented a report that is not fatally defective, then the nation will proceed with elections and that will cause fewer problems in terms of election preparations being done by the electoral commission, political parties, Civic Society Organisations and even international election observer groups or even media groups as that will ensure smooth flow towards 2023 elections.
But in case a re-drawing of the boundaries is ordered, that will trigger a lot of issues.
Basically that throws Zimbabwe into a mild constitutional crisis in the sense that it won’t be a really radically changing the political landscape but will then leave us with a situation where we are left with the old boundaries and in that case the court will have to decide whether elections are to proceed under the old boundaries which may be problematic in the sense that most of the political parties have already selected candidates using the new boundaries and to go to the old ones (2007-08) which are not recognised by Section 161 (6) and the question will be which old boundaries will ZEC revert to.
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