Current AffairsFeaturesOpinion and Analysis

Contagion Continued – Can President Emmerson Mnangagwa (Unfairly) Influence And Impact (The Direction Of) 2023 Harmonised Elections?

(President Emmerson) Mnangagwa is lifting restrictions in other areas, but not in elections. But the legality of this Statutory Instrument is doubtful By Rejoice Ngwenya In the last thesis, I opined on pursuing the Constitution’s learned position on the magnitude of President Mnangagwa’s executive powers after dissolution of Parliament and electoral date proclamation. This is because there is a multitude of myths, fallacies and misconceptions on how incumbent presidents in this part of the world determine the trajectory of elections. Here are the facts: it is true that President Mnangagwa – with the ‘consultation’ of the Zimbabwe Electoral Commission (ZEC) - technically decides when elections can be held, but this has to be within specified constitutional provisions. It is also true that he plays a significant role in the appointment of ZEC commissioners; and that ZEC must not be under the influence of anyone – including the one who appoints commissioners. The footnote to this is that ‘appointment’ is not synonymous with ‘control’.

(President Emmerson) Mnangagwa is lifting restrictions in other areas, but not in elections. But the legality of this Statutory Instrument is doubtful

 

By Rejoice Ngwenya

 

In the last thesis, I opined on pursuing the Constitution’s learned position on the magnitude of President Mnangagwa’s executive powers after dissolution of Parliament and electoral date proclamation. This is because there is a multitude of myths, fallacies and misconceptions on how incumbent presidents in this part of the world determine the trajectory of elections.

Here are the facts: it is true that President Mnangagwa – with the ‘consultation’ of the Zimbabwe Electoral Commission (ZEC) – technically decides when elections can be held, but this has to be within specified constitutional provisions.

It is also true that he plays a significant role in the appointment of ZEC commissioners; and that ZEC must not be under the influence of anyone – including the one who appoints commissioners. The footnote to this is that ‘appointment’ is not synonymous with ‘control’. Nonetheless, also a fact that it is difficult to resist the temptation to influence after an appointment.

This exactly is the point I need to make constitutional reference to because it would be naïve for Mnangagwa to overtly influence ZEC and at the same time expect Citizens Coalition for Change (CCC) leader Nelson Chamisa not to dispute related electoral results.

And moreover, as I observed a few articles back – ZEC would want to be seen to be independent – that is if Commissioner Priscila Chigumba has to maintain a semblance of personal integrity. But then again there would not be studies in constitutionalism and rule of law if there were no legislative rogues out there.

 

In an ideal constitutional, if not liberal democracy, an incumbent president should recuse oneself from all executive duties after Parliamentary dissolution and electoral proclamation. Access to state resources like helicopters, cars, media; use of security services and ‘emergency presidential powers’ to concoct dicey statutory instruments – all these are described in a single English word – cheating.

Main opposition leader Nelson Chamisa does not have access to such sumptuous political delicacies thus he already would be at a disadvantage even before any elections start. This is the very reason our Constitution writers placed ZEC in a vintage position to ‘neutralise’ such powers.

In retrospect, they could have done a better job had they made ZEC ‘report’ to the Chief Justice during such a fragile transitional phase. Unfortunately, if we have a scenario – as it is – where Chief Justice Luke Malaba is himself appointed by the President, it is unlikely that he can exercise his absolute judicial freedom.

Therefore, it is safe to say that this whole influence conundrum ultimately depends on individual leadership styles and their general interpretation of the supreme law.

The President, under Section 90 is duty-bound to respect and uphold the Constitution. In essence, this means if he has any ‘residual presidential powers’ after dissolution and proclamation, he should energetically steer away from the headwinds of ZEC control. Section 144 could have been clearer on his post-dissolution and post-proclamation powers.

Nonetheless, our constitutional writers talked about electoral law in Section 157; and it is a fundamental tenet of this law to treat all candidates equally, including adherence to a code of conduct.

In this respect, even without an outright law that curtails Mnangagwa’s executive powers after parliamentary dissolution and proclamation, if he and his ZANU-PF party have access to state resources like helicopters, cars, public media, use of security services and concocted statutory instruments using ‘presidential powers’ to influence electoral outcomes, they are indeed cheating.

As you probably know, delimitation is a crucial element of the electoral cycle. Section 161 needs very little interpretation due to its clarity. The caveat is that delimitation is undertaken during the full tenure of the President; not only that, but also the preliminary report should be presented to him.

The delimitation process can create new and redefine electoral boundaries.

Its mathematical provenance is in registration and voter population statistics. A perennial outcry by the opposition is that ZANU-PF relies heavily on rural wards and constituencies thus it is in the incumbent president’s interest to ensure a numerical advantage of rural over urban constituencies.

The question being: if the 2022/2023 delimitation report ‘fails’ to accentuate this ‘imbalance’, what would prevent President Mnangagwa from rejecting the report?

Therefore, let me conclude this influence paradox while it is still fresh in your mind. Whilst our Constitution is clear that after the dissolution of Parliament and proclamation – all candidates are equal in the eyes of ZEC – there are no clauses that technically take away the executive and political powers of President Emmerson Mnangagwa.

Like I mentioned previously, perhaps by adorning Mnangagwa’s political hardhat with ‘presidential powers’ through an act – it becomes a tacit admission that he has the ‘permission’ to interfere with – and influence the direction of elections.

In one newspaper article in 2020, journalist Miriam Mangwaya quoted Zimbabwe Human Rights NGO Forum as saying “The President’s sweeping powers to enact regulations on issues that can ordinarily be legislated by an Act of Parliament represents an affront on the principle of separation of powers.”

In all fairness, I cannot remember any presidential powers applied to influence elections in 2018 – yet the 2019-2021 Covid-19 era saw Statutory Instrument 99 of 2020 effected to ostensibly mitigate the effects of the pandemic on by-elections.

In addition, we remember the late Constitutional Lawyer Alex Magaisa comment authoritatively: “Statutory Instrument 225A effectively banning by-elections in Zimbabwe is living proof of it.”

(President Emmerson) Mnangagwa is lifting restrictions in other areas, but not in elections. But the legality of this Statutory Instrument is doubtful. It seeks to amend not only the Electoral Act but also the Constitution. The Minister of Health does not have power to do that.

Second, the SI (Statutory Instrument) cannot operate retrospectively as it seeks to do. It’s all very clumsy.”

If you are an objective commentator, you can see that there is no visible hand of ZEC’s complicity in assisting President Emmerson Mnangagwa to manipulate the electoral trajectory post Parliamentary dissolution. However, there are two questions that remain and require satisfactory answers as we proceed to 2023.

First: Can ZEC evoke the electoral code of conduct on President Mnangagwa and ZANU-PF where they are seen to deliberately violate electoral laws?

Second: Is it remotely possible that the hectic processes around amending the current Electoral Act may result in subtle clauses that may ignore President Mnangagwa and ZANU-PF’s shenanigans during the 2023 elections? We can only wait and see.


Rejoice Ngwenya is the founder and Executive Director of the Coalition for Market and Liberal Solutions (COMALISO) in Zimbabwe, and a contributing author for the Free Market Foundation. COMALISO works for a Zimbabwe that respects the free market, property rights and constitutionalism.

 

 

See also:

If Zimbabwe Is A Constitutional Democracy, Why Are Its Citizens Not Free?

 

 

 

 

 

Twitter:@realdigitalnews
Facebook: Zimbabwe Digital Express

 

Zimbabwe Digital Express

Contact: (+27) 834767918
See News Differently
Facebook: Zimbabwe Digital Express
Twitter: @realdigitalnews

 

 

If Zimbabwe Is A Constitutional Democracy, Why Are Its Citizens Not Free?

 

 

 

 

What's your reaction?

Related Posts

1 of 3

Leave A Reply

Please Login to Comment.

Open chat
Scan the code
Subscribe To The Sunday Express E-edition And Connect With The Most Innovative African Online News media Today. See News Differently For Only R17 Or $1 Every Month, And You Get All Four. Text (27) 83 476 7918