PRESIDENT Emmerson Mnangagwa almost certainly violated the delimitation process by not following constitutional requirements, while brazenly subverting the constitution at critical junctures, rendering the whole exercise practically unlawful.
OWEN GAGARE
By failing to follow procedural due process of the constitution, Mnangagwa subverted the supreme law of the land and left the delimitation process open to legal challenge and enveloped in illegitimacy.
In countries where there is constitutionalism and rule of law, the delimitation process could be challenged in court, most likely successfully.
In Zimbabwe, the courts — which are widely viewed as captured by the executive — are cautious or fearful to rule against powerful political actors, let alone the President, especially on critical political issues and electoral matters.
Mnangagwa’s constitutional violations emerge from audits of the trail of the delimitation process, starting with the end of the population census in April 2022 and the actual exercise as notified in the government gazette of 24 May 2022.
The pre-delimitation process included stakeholder engagements, field work, consultations, and compilation.
The Zimbabwe Electoral Commission (Zec) held 10 stakeholder engagements on voter registration updates and legal provisions governing delimitation, which is a process of dividing the country into wards and constituencies for elections.
It is done every 10 years.
Zec had been conducting this delimitation exercise since last June to fix the boundaries of constituencies and wards for the general elections due likely between 20-25 August.
Delimitation is done in terms of section 160 and section 161 of the constitution.
After six months on the ground, on 26 December 2022 Zec’s chairperson Justice Priscilla Chigumba presented the preliminary draft delimitation report to the President.
The procedure of what was supposed to follow thereafter is laid down in section 161 of the constitution.
Section 161 (7) (c) of the constitution specifically states that “the President must cause the preliminary delimitation report to be laid before Parliament within seven days”.
However, Mnangagwa missed the deadline and only tabled the report in Parliament on 6 January 2023 through Justice minister Ziyambi Ziyambi — which is a serious violation of the constitution.
In terms of the law, the report was supposed to have been tabled before the legislature by 2 January 2023.
In counting the days in relation to this, it is important to distinguish calendar and court days. First one must determine if the law calls for calendar days, that is every day on the calendar or court days, which for the most part are weekdays (Monday-Friday) minus weekends and court holidays.
The next step is to count either forward, or backward, the correct number of days. The third step is to add days, as required, taking into account the deadline.
The following rules apply:
- Time is computed by excluding the first day, and including the last, unless the last day is a Saturday, Sunday or holiday, and then it is also excluded;
- If the last day is a Saturday, Sunday or holiday, the period is extended to include the next day that is not a Saturday, Sunday or holiday; and
- Where an act is required (tabling delimitation report or gazetting), it must be performed no later than the specified number of days, either calendar or court days.
- In order to determine whether to count calendar or court days, one must refer to the applicable statute.
Warning: Failure to follow these counting rules precisely may result in an untimely notice or an illegality.
In this case, Mnangagwa tabled the preliminary report in Parliament after 11 days — on 6 January 2023. This was a clear violation of due process and the constitution.
After the report is submitted to the President from Parliament, within 14 days the President must refer it back to Zec for it to consider any issue raised by himself or MPs.
Zec has to give consideration to any issue so raised, but its decision is final in terms of section 161 (8 &9).
Once Zec prepares its final delimitation report, it must send it to the President who must publish it in the Gazette within 14 days in terms of section 161(10 &11).
The President cannot materially change the report once the final copy has been submitted to him for gazetting. If he does, he would be breaching the constitution, which may be an impeachable offence.
It is also important to note section 161(2) of the constitution, which states: “If a delimitation of electoral boundaries is completed less than six months before polling day in a general election, the boundaries so delimited do not apply to that election, and instead the boundaries that existed immediately before the delimitation are applicable.”
If the report was not gazetted by 26 February 2023, it would have been inapplicable to the next elections.
After receiving the report on 26 December 2022, the President issued proclamation 5 of 2022 in which he summoned Parliament to an extraordinary session on 6 January 2023 to debate the preliminary delimitation report in terms of section 338 of the constitution.
Parliament issued a notice to its members saying the 6 January 2023 sitting would be held virtually, with only a few members attending physically.
The Acting Clerk sought permission from the Committee on Standing Rules and Orders to appoint an ad hoc committee to analyse the delimitation and proposed the following timetable:
- 6 January: Tabling of the preliminary report in both Houses of Parliament;
7 January: Ad hoc committee to begin its work on the report; - 13 January: Ad hoc committee to report its findings and recommendations to both houses.
- 17 & 18 January: Both houses debate the committee’s findings and recommendations.
- 19 January: Parliament’s recommendations to be presented to the President.
This timetable gave Zec just nine days before the 28 January deadline within which to consider recommendations made by the President and Parliament, and issue its final report.
Given that the President was sworn in on 26 August 2018 and Parliament started its five-year tenure on that date, the final cut-off date for gazetting the final delimitation report was 26 February 202.
Racing against time, Chigumba then officially submitted the final delimitation report to the President on 3 February 2023 in terms of section 161 (10) of the constitution, meaning it should have been gazetted on 17 February, not 20 February as happened.
Under section 161 (11), Zec has the final say.
Chigumba publicly confirmed the report was final and the nation was now on the pathway to elections. The President’s official communications department and his spokesperson George Charamba also initially confirmed the report was final.
However, Mnangagwa’s government spokesperson Nick Mangagwa denied that, saying it was still a draft — unlawfully speaking for Zec. This exposed the plot to revise the report and subvert the constitution.
The NewsHawks doggedly covered the issue, exposing the sinister plot to manipulate the report for political agendas ahead of elections.
Mangwana was supported in his plot by Justice minister Ziyambi Ziyambi. Charamba was later forced to apologise for telling the truth; that the report was final.
It then emerged that those subverting the law also had the support of Justice permanent secretary Virginia Mabhiza who was the handler of the seven Zec commissioners who had revolted against Chigumba, claiming they had not contributed to the writing the report as it was only done by their chair and her deputy Rodney Simukai Kiwa.
The politically charged revolt, which has crippled Zec, became nasty as the commissioners wrote to Mnangagwa, asking him to set aside the report, which is a violation of the constitutional process on delimitation.
In the scheme of things, Chigumba emerged leading the pro-report faction against Mabhiza’s anti-report wing. The two groups mirrored Zanu PF factionalism, with some realignments driven by personal political ambitions and interests among those involved.
In a coordinated and calculated assault on Chigumba and the delimitation report which ensued, a Zanu PF activist, Tonderai Chidawu, a former student leader who claims to be loyal to Mnangagwa and to be working with Mabhiza, approached the Constitutional Court on an urgent basis seeking an order that the report was a product of two commissioners out of nine, not of Zec as a corporate body.
Chidawu, whose application is supported by the affidavits of two rebellious Zec commissioners, said the draft report was overwhelmingly rejected by seven of the nine Zec commissioners, and as a result should not have been sent to the President to table it in Parliament.
He asked Parliament to investigate the authenticity of the report. It refused.
Chidawu also wanted the case to be heard on an urgent basis. However, Chief Justice Luke Malaba said it was not urgent. It was however set down for hearing.
In the case, only Parliament was cited although there were several stakeholders, including Zec itself, who would be affected by whatever judgement would emerge from it.
Chidawu argued Parliament failed to uphold the constitution by refusing to investigate who wrote the report and debating a document which was not from Zec as a corporate body, but a product of Chigumba and her deputy; rejected by seven commissioners.
The commissioners who revolted against Chigumba were Catherine Mpofu, Jasper Mangwana, Abigail Millicent Mohadi-Ambrose, Shepherd Manhivi, Jane Mbetu-Nzvenga, Kudzai Shava and Rosewita Marutare.
Mpofu supported Chidawu, revealing in her affidavit Zec had met on 6 December 2022, but did not adopt the draft report. She said it was rejected by seven commissioners and should not have been sent to the President to table it in Parliament for debate.
She also said there was no duly convened Zec meeting to adopt the report and to agree to send it to the President. Chigumba went ahead arbitrarily, she says.
Manhivi’s affidavit says he would have helped Parliament to investigate the authenticity and legitimacy of the report if approached.
Against this backdrop, Mnangagwa was by law supposed to gazette the final report on 17 February 2023, but he failed to do so. This became yet another constitutional infraction.
After political pressure amid threats by Chigumba to leave if Mnangagwa violated the constitution by gazetting his own final report, the Zec final report was only gazetted on 20 February 2023 — three days after the constitutional deadline.
This left Mnangagwa in clear breach of the constitution — yet again — and the delimitation final report’s legality and validity in question.
