Zimbabwe Lawyers for Human Rights (ZLHR) have filed an urgent appeal on behalf of the Labour, Economists, and African Democrats (LEAD) political party, seeking to declare the government’s efforts to modify the country’s constitution through the use of a Statutory Instrument unconstitutional.
The government issued Statutory Instrument (SI) 114 of 2023 just before the Nomination Court convened on June 21, 2023, to correct an amended Section 268 of the Zimbabwean Constitution. The amended section stipulated that ten women must be elected to provincial or metropolitan council positions under a proportional representation system, thus excluding men. SI 114 now allows both men and female candidates to be nominated for political party lists.
ZLHR filed the appeal on June 24, 2023, arguing that SI 114 of 2023 is unconstitutional. The opposition also pointed out that the ZANU PF-led government enacted SI 114 of 2023 to benefit its candidates as the ruling party had ignored the constitutional amendment and utilised the zebra system to nominate male and female candidates for the 10 provincial or metropolitan council seats.
Following the publication of SI 114, ZEC published a press release on June 21, 2023, alerting political parties that they can proceed with nominating both female and male candidates for provincial or metropolitan council seats.
Political analysts have criticised the government’s and Parliament’s inability to take note of the constitutional amendment before signing it into law, demonstrating incompetence. Citizens Coalition for Change (CCC) member and lawyer, David Coltart said the SI 144 demonstrated “gross ineptitude by the ZANU PF regime and was also “thoroughly illegal.” He said:
One cannot just amend a Constitutional provision, which has been in place for almost two years, on the day before nomination day, or at any time. It’s utterly bizarre
The new constitutional provisions, Sections 268 and 269, bad as they are, state all the candidates must be women. A mere SI can’t change that.
No doubt ZEC will again ignore this brazen breach of the Constitution. But how incompetent is it for someone to wake up on the eve of an election to ‘correct’ an ‘error’ in the Constitution which was published almost two years ago? The bumbling is breathtaking.
According to Tendai Biti, a Constitution cannot be amended by an SI, even if an error was made recording the amendments made in the National Assembly. He argued that the Senate debated and adopted that erroneous position, which the President signed into law. He said:
Under such circumstances, only a constitutional amendment can undo the original position. Besides, a law affecting an election cannot be made once an election proclamation has been made. This is therefore a scandalous mongrel’s breakfast but one which not many mongrels will touch.
Political analyst Iphithule Maphosa said the government and Parliament’s failure to revise the constitutional amendment – Section 268 – before signing it into law demonstrated incompetence. Maphosa added that they are now making changes when an election is imminent to suit the ruling party, which shows a lack of seriousness in carrying out oversight duties.