19 December 2012

Zimbabwe: 'Mugabe Can Call for Polls Without New Constitution'

President Robert Mugabe has the constitutional right to dissolve the present Parliament at least by midnight on June 28, 2013 and then call for elections within four months under the current Constitution, experts said this week.

The incumbent was sworn in on June 28, 2008 following a controversial one-man presidential election run-off after Prime Minister (PM) Morgan Tsvangirai boycotted the race citing alleged State-sponsored violence his formation of the Movement for Democratic Change (MDC) claim killed about 200 of his supporters.

With the Southern African Development Community (SADC), the African Union (AU) and the international community describing President Mugabe's controversial re-election as a sham victory, the ZANU-PF leader was forced into a power-sharing truce with the PM and Deputy Prime Minister (DPM) Arthur Mutambara.

But President Mugabe has been insisting on holding fresh elections in March with or without a new constitution although his partners in the coalition government are adamant that the Global Political Agreement he signed with PM Tsvangirai and DPM Mutambara prevents him from unilaterally pronouncing elections without the adoption of a new constitution.

They want the veteran ZANU-PF politicians to roll-out constitutional and electoral reforms before the next harmonised polls.

There is pressure for President Mugabe to at least call for fresh polls after June 28, 2013, to coincide with the expiry of his current presidential term and that of the present Parliament, something understood to be flatly resisted by hawks in ZANU-PF.

His partners in the coalition say a new constitution was one of the pre-requisite reforms for staging of fresh polls.

Constitutional experts canvassed by The Financial Gazette this week said there was no legal requirement for a new constitution before the staging of fresh polls, hence the ZANU-PF resolution at its conference in Gweru to forge ahead with the polls in March.

The constitutional experts told The Financial Gazette President Mugabe would be within his constitutional mandate to call for polls after the dissolution of the current Parliament at least by June 28, 2013 which is the expiry of his current presidential term.

They also postulated that President Mugabe would have at least four months to call for a fresh poll between June 28, 2013 and September 2013.

Lovemore Madhuku, a constitutional law expert and chairman of the National Constitutional Assembly, said there was no legal requirement for a new constitution before the next elections adding that the current government would by that time be "retired" by what is called "operation of law".

He said the term of office of the government is five years and at the end of each term a government could only remain in office for purposes of enabling the holding of elections.

"There is a window period of four months for this latter purpose. The latest date for a valid election is October 28, 2013. At the end of five years, Parliament is not dissolved by the President: it is dissolved by operation of law. Section 63(4) uses the words 'stand dissolved'. In other words, at midnight on June 28, 2013, Parliament shall 'stand dissolved' by the mere fact of the expiration of five years. At strict law, there is no legal requirement for a presidential proclamation to dissolve Parliament at the end of five years," said Madhuku.

He added that the President's term of office will also come to an end on that day.

"However, the Constitution allows the President to remain in office until the election of a new President. The issue is: when should new elections be held after June 28, 2013? The answer is very clear in section 58 of the Constitution. Elections must take place not later than four months from June 28, 2013. This is why October 28, 2013 is the last day for a valid election under the current constitution," said Madhuku.

Greg Linnington, a constitutional law expert at the University of Zimbabwe, said President Mugabe would be within his constitutional right under the Lancaster House Consti-tution to dissolve Parliament by June 2013 and call for fresh polls thereafter.

"But there has to be a presidential election as well thereafter," said Linnington.

Qhubani Moyo, the director of policy implementation in Welshman Ncube's formation of the MDC, concurred with the constitutional experts that President Mugabe has up to four months from the dissolution of the current Parliament to call for fresh elections.

"The life of Parliament starts from the day the President is sworn-in and expires five years from that date. In this case, President Mugabe, after a controversial presidential election, was sworn-in on 28 June 2008, meaning the life of the current Parliament is counted from that date," said Moyo.

"In the midnight of 28 June 2013, the life of the current Parliament automatically comes to an end. Elections should be held anytime within four months from that date, which means between 30 June and 30 September, 2013," said Moyo.

DPM Mutambara, speaking to a Washington-based radio station early this week, alluded to the fact that the current Parliament would expire in June next year.

"If we don't make progress by June 28, 2013, we will be forced to go into an election without a new constitution. SADC can encourage us to work together but the AU and SADC cannot force us to violate the Constitution.

"There is no way that SADC and the AU can extend the Zimbabwean government and the Zimbabwean Parliament beyond June 28, 2013," said Mutambara.

He added that he would prefer constitutional and electoral reforms to be in place before the next elections, adding that "if we don't do that we are going towards acrimony and I don't desire to have elections on the Lancaster House Constitution."

But critics see ZANU-PF pushing for a March election in the belief that PM Tsvangirai has been rendered vulnerable by the perceived implosion in his party coupled with sex scandals they believe the MDC-T leader might not fully recover from.

There is also agreement in ZANU-PF that the party's indigenisation mantra has endeared it to the electorate said to be miffed by corruption in MDC-T dominated local authorities.

Two independent opinion polls, which suggested that President Mugabe has eclipsed PM Tsvangirai in the popularity stakes are also understood to have buoyed ZANU-PF, hence the rush for early polls next March.

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