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Lack of delimitation clarity unhelpful and damaging, particularly to ZEC

Facing rebellion ... ZEC boss Justice Priscilla Chigumba and her deputy Rodney Simukai Kiwa have been denounced by seven other commissioners over delimitation repo
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Prepared-for-delivery presentation by Professor Jonathan Moyo during a ZimLive Twitter Space on February 7, 2023. The discussion was held under the topic: ‘The Politics and Legalities of Delimitation’

BY PROF JONATHAN MOYO

WHEN it comes to the politics and legalities of the delimitation of electoral boundaries of constituencies and wards, it is trite to point out that politics is law and law is politics. But, of course, as specialised disciplines; politics and law are different in very fundamental and important ways. In this regard, this discussion is on the politics less of delimitation, as such, but more on the politics of the 2023 delimitation report prepared by the Zimbabwe Electoral Commission (ZEC).

In one sense, the discussion is rather late in that it would have been more useful had it taken place soon after ZEC presented its draft preliminary delimitation to President Mnangagwa on December 26, 2022, well before January 6, 2023, when Parliament’s Ad Hoc Committee tabled its analysis of the Report for the debate in Parliament on January 13 and 14, a debate which facilitated the submission of Parliament’s views to the President on  January 19 for onward transmission to ZEC.

Holding this discussion before the parliamentary process would have perhaps impacted on the content of ZEC’s final delimitation report.

 

 

Conversely, this discussion is arguably somewhat premature in that it is taking place before the eagerly awaited publication by the President of a Proclamation in the Gazette declaring the names and boundaries of the wards and constituencies finally determined by ZEC, in terms of section 161(11) of the Constitution. This is because the content of the final report is unknown and thus not yet reviewable by the public.

However, putting aside the content of ZEC’s delimitation Report, this discussion is important and timely in that its focus is mainly on the process being used or being followed by ZEC to produce its final report.

An often-forgotten perennial truth is that Process is King because it influences content. The quality of content is determined by the quality of its process.

In so far as the politics of the ongoing delimitation exercise go, there is a clear and present risk that the content of ZEC’s final delimitation report that the President must publish by February 17, 2023, will be poisoned, compromised and rendered unconstitutional by a botched process to the detriment of the forthcoming harmonised general election which could become irretrievably illegitimate before the fact.

A development of that kind, whose possibility remains clear and present, would be most unfortunate for the country, and every effort needs to be made to avert that possibility.

With the foregoing in mind, there are three critical political questions to unpack, namely:

Is ZEC a functional body corporate, with the capacity to produce the final delimitation report?

In terms of the Constitution of Zimbabwe, has ZEC submitted its Final Delimitation Report to the president?

In terms of the Constitution of Zimbabwe, what is the role of the President upon receipt of ZEC’s Final Delimitation Report?

Before unpacking these three questions, a brief background to the politics of delimitation of electoral boundaries of wards and constituencies in Zimbabwe might provide a useful context.

Putting aside two referendums on draft constitutions in 2000 and 2013; Zimbabwe has had 10 elections in 1980, 1985, 1990, 1995, 2000, 2002, 2005, 2008, 2013 and 2018. Out of these only the 1980 Independence election did not have delimited electoral boundaries for wards and constituencies because Zimbabwe was treated as a single constituency, with voters required to provide their national registration cards as there was no registration of voters for the Independence election.

Until the 2008 elections, the authority that delimited electoral boundaries in previous elections (bar the 1980 one) was the Delimitation Commission, an ad hoc body that came to life before every general election between 1985 and 2005.

What is notable is that before 2004 the only permanent body with electoral functions was the Registrar General’s Department which registered voters in between elections. The other bodies with electoral functions, namely the Election Directorate, the Electoral Supervisory Commission and the Delimitation Commission were all ad hoc in composition and function, as they come to life only at election time.

When ZEC was first setup, it was under an Act of Parliament in 2004, it did not have the power to register voters nor to delimit electoral boundaries. In September 2005, ZEC became a constitutional body under Constitution Amendment Number 17 of the former Constitution, but it was not given the powers to register voters or to delimit electoral boundaries. Under the same Amendment, the Delimitation Commission also became a constitutional body but remained an ad hoc structure that came into existence from time to time ahead of a general election.

The situation changed dramatically in 2007 under Constitution Amendment Number 18 which abolished the ad hoc Delimitation Commission and gave ZEC the power to delimit electoral boundaries.  The current electoral boundaries for 1,958 wards and 210 constituencies were done by ZEC in 2008 for the first harmonised general election held that year.

The table below shows how the distribution of registered voters and constituencies among provinces after the delimitation between 2000 and 2005 when Zimbabwe was divided into 120 constituencies and since 2008, when the country was divided into 210 constituencies, and now.

Delimitation of Constituencies and Registered Voters

2000 – 2018

Province 2000 

Voters       Constituencies

2002 

Voters       Constituencies

2005 

Voters       Constituencies

2008 

Voters       Constituencies

2013 

Voters       Constituencies

2018 

Voters       Constituencies

Bulawayo    357,281                           8    363,028                           7    339,990                         12 320,772                         12 310,390                         12    258,690                         12
Harare    799,452                         19    882,176                         18    832,571                         29 784,598                         29 798,264                         29    900,300                         29
Manicaland    575,404                         14    658,694                         15    686,767                         26 774,482                         26 798,677                         26    733,293                         26
Mashonaland Central    418,277                         10    480,092                         10    490,181                         18 522,107                         18 568,600                         18    531,864                         18
Mashonaland East    506,817                         12    589,185                         13    610,715                         23 658,123                         23 710,323                         23    633,126                         23
Mashonaland West    502,964                         12    572,677                         13    593,354                         22 625,729                         22 656,036                         22    644,974                         22
Masvingo    593,778                         14    655,122                         14    675,234                         26 740,969                         26 769,263                         26    617,204                         26
Matabeleland North    317,405                           7    338,186                           7    342,745                         13 366,271                         13 383,267                         13    338,851                         13
Matabeleland South    319,015                           8    343,993                           7    341,258                         13 355,480                         13 371,143                         13    264,160                         13
Midlands    658,422                         16    724,659                         16    745,822                         28 786,237                         28 821,040                         28    761,474.                        28
Total    5,048,815                   120    5,607,812                   120    5,658,637                   210 5,934,768                   210 6,187,003                   210    5,683,936                   210

The point to underscore here is that Zimbabwe has a rich history of delimiting electoral boundaries through an ad hoc statutory or constitutional body which used to come to life from time to time or, as the case now is, every ten years.

Upon critical reflection, it may very well be that it is too much to expect ZEC to have 14 functions stipulated under section 239 of the Constitution, which include delimitation, plus other additional functions under section 5 of the Electoral Act.

By its very nature, the delimitation of electoral boundaries is essentially technical, and its execution requires a broad set of skills that ZEC does not need in between elections and thus does not have within its ranks. The delimitation exercise is therefore best executed or done by an ad hoc delimitation commission that comes to life from time to time as contemplated under section 59 of the former Constitution, effected through Amendment Number 17.

A body, like ZEC, that conducts elections is not best suited to draw electoral boundaries for wards and constituencies not least because it is invariably tainted by the disputes of the elections that it conducts.

Let me now turn to the three key process questions that are necessary to unpack with respect to the current delimitation exercise.

First, is ZEC a functional body corporate, with the capacity to produce the final delimitation Report?

This question has become important because of the conduct, in fact misconduct of seven ZEC “rogue” commissioners. I am characterising them as “rogue” because the seven commissioners have manifestly acted in ways that are contrary to their constitutional oath which requires them to be independent. Somehow, the hope of the seven commissioners and those behind them is that their actions are supposed to lead to a conclusion that, with respect to the delimitation exercise, ZEC is not a body corporate and has no capacity to produce the required final delimitation report. In effect, the seven ZEC Commissioners, who were appointed in July 2022, clearly seek to invalidate ZEC decisions.

But the delimitation exercise is not an overnight process. Most if not all of the decisions made by ZEC on the delimitation exercise were taken before the seven rebellious commissioners were appointed. The seven commissioners are thus bound by those decisions.

It is rogue behaviour for the seven Commissioners to seek to disown Commission decisions and processes at their tail end, when they simply have no mandate and no power to do so as individuals or as a rebellious group.

Tellingly, in their rogue actions, the seven Commissioners have not cited any provision of the Constitution or any other law to back up their misconduct. It is mind boggling that the seven Commissioners imagine that they can block, suspend or even overturn constitutional processes purported by a “resolution” taken among themselves over a beer or by a MEMO that they sent to President Mnangagwa!

In the circumstances, the obvious question which has not been confronted is whether these rogue seven commissioners are still competent to remain in office as ZEC commissioners after violating their supreme oath of office to uphold the Constitution of Zimbabwe?

The argument that the seven rogue commissioners did not sign the draft preliminary or the final delimitation report is politically interesting from a grandstanding point of view, but it has no administrative significance.

Commission documents are signed by the ZEC chairperson, the presumed legal authority, on behalf of the Commission. Anyone who has cared to look into the matter will find that this is the practice even with respect to reports to Parliament and ZEC’s official annual accounts.

It is unthinkable that the seven rogue Commissioners imagine that they can hold the Commission to ransom, only and simply because they are the majority. The administration of a constitutional body is not a number’s game.

While this is a matter to be handled by lawyers and settled in court, the fact that two of the seven rogue commissioners have tendered affidavits to support a case by a total stranger to ZEC and its core business, thereby dragging the Commission into the mud while it is not even cited in the matter, just goes to show how destructively naïve the lot is.

The position of the seven rogue Commissioners, especially the two in court against ZEC, has become untenable.

How can they work at ZEC, while suing the Commission by proxy? Who at ZEC will ever trust them? There are only two options left for these commissioners, to resign or face the consequences of disciplinary action.

To the second process question, in terms of the Constitution of Zimbabwe, has ZEC submitted its final delimitation report?

It is surprising, unfortunate, scandalous and dangerous that this question is in the air out there in the public domain.

On  February 6, the Herald newspaper carried a story headlined, “Zanu PF cell verification meetings continue”. In the story, the paper reported that Zanu PF Politburo Member and Minister of Justice, Legal and Parliamentary affairs, Ziyambi Ziyambi – speaking in Chinhoyi the previous day – “dismissed claims that the final draft of the delimitation report was ready. He said the report presented to President Mnangagwa by ZEC was basically for consideration.”

On this matter, the facts are public and therefore noticeably clear. No one has made any claim but what is there is what none other than the ZEC Chairperson, Justice Priscilla Chigumba herself, said not when she was speaking to journalists but what she said to the President when she was handing President the final report on February 3, 2023, she said, and I am quoting her verbatim:

“Your Excellency in terms of section 161(1) of the Constitution, the concerns which you forwarded to us from Parliament and yourself have been adhered by the Commission and these are our responses and this is the hard copy which is the result of us giving effect to these concerns.”

The operative phrase is that she said “in terms of section 161(10) of the Constitution.” That section says: “As soon as possible after complying with subsections (7) and (9), the Zimbabwe Electoral Commission must submit a final delimitation report to the  President.”

That is what ZEC did on February 3, 2023, when it invoked this section as the ZEC chairperson handed the final delimitation report to President Mnangagwa.  This is not a claim, as alleged by Ziyambi, it is a public fact with both political and legal consequences.

In terms of the Constitution of Zimbabwe, what is the role of the President upon receipt of ZEC’s final delimitation report?

Soon after the ZEC chairperson, Justice Chigumba, handed the President the final report last Friday on February 3, 2023, the President said, and I am quoting him verbatim:

“Thank you very much. I will attend to this and make my observations”.

That is what he said.  Now, understandably, people can speculate about what the President meant by “I will attend to this” or “and make my observations.”

However, the speculation is unnecessary and conclusions from that speculation are irrelevant because the Constitution is unambiguously clear about what the President must do, not what he may do but what he must do, and this is in section 161(11) which says:

“Within fourteen days after receiving the Zimbabwe Electoral Commission’s 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.”

What this means is that President Mnangagwa must publish ZEC’s final delimitation report handed to him on February 3, 2023, by February 17, 2023.  This is neither a claim nor a matter of the President’s discretion, it is the Constitutional position arising from the factual position that Justice Priscilla Chigumba, the ZEC Chairperson, handed the final delimitation report to President Mnangagwa on February 3, 2023.

There are two process questions, that should be unpacked about the role of the President in the delimitation exercise. It was surprising and wrong that President Mnangagwa made submissions on the ZEC draft preliminary delimitation report separate from Parliament. Two reasons explain this.

In the first place, section 116 of the Constitution defines Parliament as follows:

116 The Legislature

The Legislature of Zimbabwe consists of Parliament and the President acting in accordance with this Chapter.

This means that the President is part of Parliament, such that references to the submission of the ZEC draft preliminary report to Parliament in terms of section 161 (7) and (8) of the Constitution include the President.

In any event, the leader of the House who is responsible for business government in Parliament, is the Minister of Justice, Legal and Parliamentary Affairs, who is the President’s appointee. The President has more than many opportunities to have his views on ZEC’s draft preliminary delimitation report placed before Parliament by his Minister of Justice, Legal and Parliamentary Affairs, who is leader of the House.

This would be transparent in the spirit of the Constitution, especially as it involves ZEC and elections in which the President has a political and even a personal interest.

There is a second and more important reason why the President’s submission separate from Parliament is wrong.  There is nothing in section 161 of the Constitution which provides for the President to make a submission separate from Parliament on ZEC’s draft preliminary delimitation report.

Under section 161 of the Constitution, which deals with delimitation, what the President must do after delimiting wards and constituencies is provided in subsections 7 and 8 which stipulate as follows:

(7) After delimiting wards and constituencies, the Zimbabwe Electoral Commission 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.

(8) 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.

 Therefore, in terms of the Constitution, the President’s role is akin to that of a Post Office in that the President receives the ZEC draft preliminary delimitation report and causes it to be laid before Parliament within seven days in terms of subsection (7); and sends it back to ZEC within 14 days if he or Parliament so decide in terms of subsection (8). The Constitution requires the President to be as neutral as a post office, he should not fiddle with the delimitation mail from ZEC to Parliament or from Parliament to ZEC.

All told, the fact that the President should not make a submission separate from Parliament does not mean that he cannot engage ZEC directly or Parliament through his Minister of Justice, Legal and Parliamentary Affairs save that any such engagement must be transparent to ensure accountability.

In the circumstances, those who have challenged the legal position arising from the factual position have ulterior motives far removed from the constitutional process. Their stance is at odds with public facts and is contrary to the peremptory provisions of section 161 of the Constitution.

As such, their stance is a naked attempt to usurp the powers of ZEC, as a Chapter 12 institution, an independent constitutional body which – in terms of section 235(1)(a) – is “not subject to the direction or control of anyone.”

Be this as it may, let me conclude by proffering an explanation why there has been an apparent and rather brazen attempt to subvert the Constitution by usurping the powers of ZEC in relation to the process of finalising the delimitation exercise.

First, it’s now clear that there are some government mandarins in the Ministry of Justice, Legal and Parliamentary Affairs who are working with some or all of the seven rogue ZEC Commissioners, and those mandarins either want to smuggle some nefarious content into the final report under the false pretext that what was submitted to President Mnangagwa is “a draft final report” – an oxymoronic phrase which cannot be found anywhere in the Constitution; or they are simply kicking the can down the process to buy time beyond February 26, 2023,  after which the electoral boundaries of ZEC’s final delimitation report would not apply for the forthcoming 2023 harmonised general election; in terms of section 161(2) of the Constitution.

Whatever is the case, the antics of the mandarins have been unhelpful distractions that can only succeed in damaging ZEC and the public interest.

Finally, from a process point of view and going by the content of its draft preliminary report, it would be remiss of me not to commend ZEC for its progressive interpretation and application of section 161(6) of the Constitution, regarding the delimitation formula.

After the President submitted ZEC’s draft preliminary delimitation report to Parliament a potentially divisive debate, based on section 161(3) of the Constitution, ensued with widespread claims that ZEC had either used the delimitation formula in section 61A of the old, repealed Lancaster Constitution; or that ZEC had misconstrued or misunderstood section 161 of the 2013 Constitution. Subsection (3) relied upon by proponents of this view provides as follows:

(3) The boundaries of constituencies must be such that, so far as possible, at the time of delimitation equal numbers of voters are registered in each constituency within Zimbabwe.

While there’s indeed a formula for delimitation under section 161(3) of the Constitution, which basically is based on dividing the total number of registered voters at the time of the delimitation exercise by 210 (the number of constituencies in Zimbabwe), that is only a simple starting premise of what is in fact a very complex and taxing technical and discretionary exercise based on section 161(6) of the Constitution of Zimbabwe which provides that:

(6) In dividing Zimbabwe into wards and constituencies, the Zimbabwe Electoral Commission must, in respect of any area, give due consideration to

(a) its physical features;

(b) the means of communication within the area;

(c) the geographical distribution of registered voters;

(d) any community of interest as between registered voters;

(e) in the case of any delimitation after the first delimitation, existing electoral boundaries; and

(f) its population;

and to give effect to these considerations, the Commission may depart from the requirement that constituencies and wards must have equal numbers of voters, but no constituency or ward of the local authority concerned may have more than twenty per cent more or fewer registered voters than the other such constituencies or wards.

While the criticism of ZEC’s delimitation formula purported to rest on the interpretation of the proviso that in giving effect to the six considerations under subsection (6), that:

“…the Commission may depart from the requirement that constituencies and wards must have equal numbers of voters, but no constituency or ward of the local authority concerned may have more than twenty per cent more or fewer registered voters than the other such constituencies or wards.”

The loquacious ZEC critics did not at all pay any attention to the key six parameters under section 161(6) of the Constitution, to which “the Zimbabwe Electoral Commission must, in respect of any area, give due consideration,” namely:

(a) its physical features;

(b) the means of communication within the area;

(c) the geographical distribution of registered voters;

(d) any community of interest as between registered voters;

(e) in the case of any delimitation after the first delimitation, existing electoral boundaries; and

(f) its population;

It remains to be seen how ZEC’s final delimitation report responded to the criticism regarding the delimitation formula it used in its draft preliminary delimitation report.  I hope ZEC has not been swayed.

The formula used by ZEC in its draft preliminary delimitation report is progressive and highly commendable as it took into account the public and national interests of marginalised areas such as the Matabeleland region. Applying a delimitation formula entirely based on section 161(3) of the Constitution, without balancing it with the six peremptory considerations in section 161(6), would be detrimental to national unity and national cohesion and would undermine the national and constitutional objectives of devolution.

Professor Jonathan Moyo is a political scientist and former cabinet minister. This was originally published here by the ZimLive.