Storm over delimitation report
IN a move that has sparked political uproar ahead of general elections in August, Zimbabwean President Emmerson Mnangagwa has brazenly breached the constitution — an impeachable offence — after failing to gazette the final delimitation report he received from the Zimbabwe Electoral Commission (Zec) on 3 February within 14 days in terms of the law.
Mnangagwa’s actions and what has been happening behind the scenes show that there is a spirited campaign to subvert the constitution, a serious democratic aberration and constitutional offence, and fiddle with the final delimitation report to advance the President and Zanu PF’s political agenda in the run up to the polls.
In terms of the constitution, Mnangagwa, who has torpedoed the gazetting process, was supposed to publish the report on 17 February after receiving it on 3 February. Section 161 of the constitution says it should be published with within 14 days of its receipt from Zec.
“Within fourteen days after receiving the Zimbabwe Electoral Commission’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,” the constitution says.
Zec chairperson Priscilla Chigumba said on 3 February after handing over the controversial report to Mnangagwa at State House in Harare that it was final as they had taken into account parliament and the President’s concerns and recommendations that came against a backdrop of protests of gerrymandering and mal-apportionment largely affecting the opposition. Some individual Zanu PF members were also affected by the delimitation process.
Speaker of Parliament Jacob Mudenda also suggested it was final after some MPs raised the issue in the legislature. Delimitation, dividing the country into wards and constituencies for elections, is done under section 160 and section 161 of the constitution every 10 years after a population census and before the elections.
Informed insiders told The NewsHawks that Mnangagwa did not gazette the report primarily for two reasons.
“The President did not gazette the delimitation report because government is not counting weekends and holidays, if any, in its 14 days deadline since 3 February. So their deadline is 23 February. He will gazette it on 23 February, but this is unconstitutional,” a source said.
“The other reason Mnangagwa did not gazette the report is that they are still fiddling with it. They have been changing the report to suit their political agenda. That is why they are claiming it is not final so that they can create room and justify changing it to accommodate their partisan issues. There is political subterfuge underway on this issue.”
The delimitation process has always been a hotbed for irregular and corrupt electoral practices in Zimbabwe since the 1980s. Gerrymandering — changing of constituency boundaries to suit a candidate or political party — and malapportionment, unequal distribution of registered voters in wards and constituencies, are the most common electoral malpractices in delimitation.
Government spokesman Nick Mangwana has renewed his spirited campaign packed with political chicanery and deceit to subvert the constitution, claiming the President has not yet received the final delimitation report when he has.
He says once he gets it he would gazette it. Mangwana is supported in this machination by the President’s spokesman George Charamba who initially said the report was final before joining the bandwagon to mislead the nation on the critical electoral process.
Justice minister Ziyambi Ziyambi also made a similar claim, showing a coordinated subversion of the constitution. Ziyambi has also been working with Justice permanent secretary Virginia Mabhiza and the seven Zec commissioners who have revolted against Chigumba to undermine the delimitation process for their own political interests.
They have name-dropped that Mnangagwa is supporting them, a claim which seems to have truth and credibility, at least judging by how events have been unfolding.
Mabhiza, who has links within Zec and is using the rebellious commissioners to do her bidding, is said to be deeply involved as she wants to be an MP and minister after elections if Mnangagwa and Zanu It is said she is the one who encouraged Zec commissioners to revolt, and write a letter to Mnangagwa saying the delimitation report process was hopelessly and irretrievably flawed, hence should be abandoned so that elections are held in terms of the existing 2008 boundaries.
A Zanu PF member Tonderayi Chidawu has taken parliament to court over the delimitation report that was tabled before the legislature on 6 January for debate, saying it does not comply with the constitution. Chidawu, also linked to Mabhiza, is represented by Professor Lovemore Madhuku.
At the centre of the legal battle is whether an unsigned draft preliminary delimitation report initially presented to Mnangagwa by Chigumba on 26 December 2022, before it was tabled in parliament on 6 January 2023 within seven days as required by the constitution, was written by Zec as a body corporate, or just two members of the commission, that is the chairperson and her deputy Rodney Simukai Kiwa.
This led Zec’s seven commissioners to rebel. Those dissenting include Jane Mbetu-Nzvenga, Shepherd Manhivi, Millicent Mohadi-Ambrose, Jasper Mangwana, Catherine Mpofu, Rosewita Murutare and Kudzai Shava. While the commissioners are pushing their principal Mabhiza’s political agenda, which eventually benefits Mnangagwa as he is very close to the permanent secretary, they are also revolting over cars and unpaid benefits.
Chidawu, whose court application is supported by the affidavits of two Zec commissioners, is arguing that the draft report was overwhelmingly rejected by seven of the nine Zec commissioners, and should not have been forwarded to the president from parliament as it violated the constitution. Chief Justice Luke Malaba has ruled in the Constitutional Court that Chidawu’s case was not urgent, leaving it facing the risk of being overtaken by time and sunk by the vagaries of politics.
After violating the constitution amid calculated chaos — there is method in the madness – on whether or not the 3 February report was a final, Mnangagwa and his government are now hiding behind a badly flawed and a conveniently self-serving interpretation of the law mixing up calendar days and court days.
Mnangagwa was supposed to use calendar days to gazette the final delimitation report on 17 February.
However, he is using court days to push the deadline further down to 23 February. This means he will publish the report on 23 February using court days.
This action is also unconstitutional. The first step on this is to determine if the days are calendar or court days — a distinction with a difference. The next step is to count either forward, or backward, the correct number of days. The third step is to add days, as required, due to the specific manner of service. In the delimitation case, calendar days — not court days — 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 of counting 14 days from 3 February is a Saturday, Sunday or holiday, the period is extended to include the next day that is not a Saturday, Sunday or holiday.
In this case, the last day was a Friday (yesterday), but Mnangagwa elected to violate the constitution by not gazetting the report.
The situation is worsened by information gathered by The NewsHawks showing that has been tampering with the delimitation report by authorities.
This has resulted in a fallout between some senior government officials, Zec managers and security personnel, particularly from the Central Intelligence Organisation (CIO) which played a key role in crafting the draft preliminary report that Mnangagwa and those supporting him rejected in its original form.
They are now basically illegally writing their own report. Unlike during the late former president Robert Mugabe’s era when the military — through the Joint Operations Command (Joc) — spearheaded electoral processes like the delimitation exercise, in the current set up, CIO and political apparatchiks are in charge.
The military is however on the ground clandestinely campaigning for Zanu PF. Mabhiza and her clique, which does not want the report or wants a heavily doctored one as a compromise, have infuriated the CIO which is backing Chigumba. The first delimitation report was handed to Mnangagwa on 26 December last year.
It changed shapes and boundaries of wards and parliamentary constituencies, but ultimately left Zanu PF in a stronger position, including in the opposition fiefdom of Harare province. Three additional constituencies were created in Harare South and Epworth areas where Zanu PF currently has its only two MPs in the capital.
Harare South is under Zanu PF MP Tongai Mnangagwa, related to President Mnangagwa, while Epworth is also under ruling party MP Zalerah Makari, a Mugabe family relative. The CIO thinks it had done a good job and is questioning Mabhiza’s motives.
Those against Mabhiza say she cannot be trusted as she is eyeing a constituency either in Masvingo or Midlands and wants to be Justice minister. So she is mainly acting out of self-interest, they say. Senior government officials say Mnangagwa and his close associates have been secretly rewriting the delimitation report, usurping Zec’s mandate and powers, which is unlawful. Sources said on Sunday, Mnangagwa had a long meeting with Zec officials at State House, where he made his demands known, resulting in further changes to the delimitation report after his initial submissions and those made the parliamentary adhoc committee.
From their unconstitutional interventions, they want to produce their own final report —different from Zec’s — and then hand it over to Mnangagwa to gazette on 23 February.
This means Mnangagwa has had a second bite of the cherry, which is unlawful. Mnangagwa and his allies are chasing the 26 February deadline for the delimitation report to apply in the upcoming elections. The report must be gazetted six months before polling day.
If that fails, elections will be held in terms of the current electoral boundaries delineated in 2008, a problematic proposition given that there have dramatic demographic changes and in some cases a mutation in topography taken into account during the delimitation exercise.