Did Pres Mnangagwa violate the constitution in gazetting the delimitation report?

President Emmerson Mnangagwa
The Claim: Claim: President Emmerson Mnangagwa violated the constitution after he failed to gazette the final delimitation report on the 17th of February 2023.
The Verdict: claim verdict

Claim:  President Emmerson Mnangagwa violated the constitution after he failed to gazette the final delimitation report on the 17th of February 2023.

There has been controversy around the delimitation report as the Zimbabwe Electoral Commission (ZEC) stated that it submitted its final report to the president on the 3rd of February 2023. However, government officials claimed that the president was yet to receive the final report. According to the gazette, President Mnangagwa only received the final report on the 17th of February.

What does the Constitution say?

The Zimbabwe constitution clearly states that once every ten years, on a date or within a period fixed by the Commission so as to fall as soon as possible after a population census, the Zimbabwe Electoral Commission must conduct a delimitation of the electoral boundaries into which Zimbabwe is to be divided.

Section 161 (7) of the constitution states that after delimiting wards and constituencies, the Zimbabwe Electoral Commission (ZEC) must submit to the President a preliminary report containing— (a) a list of the wards and constituencies, with the names assigned to each and a description of their boundaries; (b) a map or maps showing the wards and constituencies; and (c) any further information or particulars which the Commission considers necessary; and the President must cause the preliminary delimitation report to be laid before Parliament within seven days.

Section 161 (8) says within fourteen days after a preliminary delimitation report has been laid before Parliament— (a) the President may refer the report back to the Zimbabwe Electoral Commission for further consideration of any matter or issue; (b) either House may resolve that the report should be referred back to the Zimbabwe Electoral Commission for further consideration of any matter or issue, and in that event the President must refer the report back to the Commission for that further consideration.

Subsection (9) states that where a preliminary delimitation report has been referred back to it under subsection (8), the ZEC must give further consideration to the matter or issue concerned, but the Commission’s decision on it is final.

Section 161 (10)   of the Constitution says after complying with subsections (7) and (9), the ZEC must submit a final delimitation report to the President.

The Constitution of Zimbabwe on Section 161 (11) says within fourteen days after receiving the ZEC’S final report, the President must publish a proclamation in the Gazette declaring the names and boundaries of the wards and constituencies as finally determined by the Commission.

“If there is a discrepancy between the description of the boundaries of any ward or constituency and the map or maps prepared by the Zimbabwe Electoral Commission, the description prevails,” reads the constitution on Section 161 (12).

Meanwhile, the Electoral Act Part VIIIA, headed ‘Delimitation of Constituencies and Electoral Boundaries’, Section 37A (2) states that when fixing or reviewing the boundaries of constituencies and other electoral divisions, the Commission shall, so far as is practicable within the time available, entertain representations from voters, political parties and other interested persons and bodies likely to be affected by the decision made by the Commission.

The other parts of the long section deal with the establishment of electoral centers and the transmission of election results between centers.

What are the facts?

On 26 December 2022, the Zimbabwe Electoral Commission (ZEC) handed over a preliminary delimitation report to President Emmerson Mnangagwa, containing the new constituency and ward boundaries to be used in the 2023 harmonised elections.

The report was laid before Parliament on the 6th of January  2023 and an ad hoc parliamentary committee was appointed to analyse it.

The ad hoc committee presented its analysis to Parliament on the 13th January 2023. This report was presented in both the National Assembly and the Senate.  The presentation took the form of reading out the full report.  Immediately after the presentation both Houses adjourned to Tuesday afternoon 17th January 2023 to debate the Ad Hoc Committee’s report and on the 17th and 18th January.

Both Houses of Parliament presented their own findings and recommendations to the President on Thursday the 19th January 2023. The recommendations were presented by the Speaker of Parliament Jacob Mudenda.

On 20 January 2023, President Mnangagwa handed over to the Zimbabwe Electoral Commission (ZEC), a report by Parliament on the preliminary delimitation.

Delay in publication?

On the 3rd February, the chairperson of ZEC presented what she said was her Commission’s final delimitation report to the President.  Government spokespersons later denied it was the final report, claiming it was only a draft.

Video source: Voice of America (VOA)

If the report was indeed the final report then the President had 14 days in which to publish the ward and constituency boundaries shown in the report (section 161(11) of the Constitution).  That 14-day period expired last Friday, the 17th February, which means the President’s proclamation was late.  On the other hand, the proclamation itself says the President received the final delimitation report on the 17th February, and if that is so the proclamation was published well within the constitutional time-limit.

It is curious however that no publicity was given to the handing over of the final report, after the fanfare surrounding the handing over of the “draft final report”;  curious too that the President should have received the report, while according to the Herald, he was in Addis Ababa.

Date of the general election

If the new delimitation is to be used for the mid-year general election, then – according to section 161(2) of the Constitution – polling day in the election will have to be no earlier than the 20th August, i.e. six months after publication of the proclamation.  Since the latest date on which an election must be held is the 26th August, that does not give ZEC or the President much leeway.

Conclusion: Based on ZEC’s submission that it presented its final report on the 3rd of February then it means that President Mnangagwa missed the 17th of February to gazette the delimitation report. In any case, if the President indeed received the final report on the 17th he would not have rushed to gazette it since he has 14 days to gazette it.

Additional information sourced from Veritas

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