Zimbabwe Lawyers for Human Rights (ZLHR) have filed an urgent appeal before the High Court on behalf of the Labour, Economists, and African Democrats (LEAD) political party, seeking to declare the government’s efforts to modify the country’s constitution through the use of a Statutory Instrument, unconstitutional.
This development comes after the government issued Statutory Instrument (SI) 114 of 2023 on the Statute Law Compilation and Revision (Correction of Constitution of Zimbabwe Amendment No. 2. Act 2021) just before the Nomination Court convened on June 21, 2023, to correct an amended Section 268 of the Zimbabwean Constitution.
The amended Section 268 of the Constitution stipulates that each province or metropolitan province has a council, and that ten women must be elected to those positions under a proportional representation system, thus excluding men.
SI 114 now allows both men and female candidates to be nominated for political party lists.
“We have just filed urgent application at High Court seeking an order to declare as unconstitutional, the machinations by government to amend the Constitution through gazetting Statute Law Compilation and Revision (Correction of Constitution of Zimbabwe Amendment (No. 2) Act, 2021),” said ZLHR who filed the appeal on June 24, 2023.
“We have argued on behalf of LEAD that SI 114 of 2023 is unconstitutional.”
Section 268 has been in effect for two years, having been enacted in 2021. Still, this correction by the government is unconstitutional, according to ZLHR, because a law affecting an election cannot be made once an election proclamation date has been announced. In this case, the election date was announced on May 31, 2023.
The opposition also pointed out that the Zanu PF-led government enacted SI 114 of 2023 in order to benefit its candidates as the ruling party had ignored the constitutional amendment and utilised the zebra system to nominate male and female candidates for the 10 provincial or metropolitan council seats.
Following the publication of SI 114, ZEC published a press release on June 21, 2023 alerting political parties that they can proceed with nominating both female and male candidates for provincial or metropolitan council seats.
However, Citizens Coalition for Change (CCC) member and lawyer, David Coltart said the SI 144 demonstrated “gross ineptitude by the Zanu PF regime and was also “thoroughly illegal.”
“One cannot just amend a Constitutional provision, which has been in place for almost two years, on the day before nomination day, or at any time. It’s utterly bizarre,” he said.
Coltart noted that any nominations of male candidates which follow “this illegal SI” are equally illegal and of no force.
“The new constitutional provisions, Sections 268 and 269, bad as they are, state all the candidates must be women. A mere SI can’t change that,” he said bemoaning how this was a constitutional violation.
“No doubt ZEC will again ignore this brazen breach of the Constitution. But how incompetent is it for someone to wake up on the eve of an election to ‘correct’ an ‘error’ in the Constitution which was published almost two years ago? The bumbling is breathtaking.”
Another CCC member and lawyer, Tendai Biti said a Constitution cannot be amended by an SI and even assuming an error was made recording the amendments made in the National Assembly.
He argued that the Senate debated and adopted that erroneous position, which the President signed as law.
“Under such circumstances, only a constitutional amendment can undo the original position. Besides, a law affecting an election cannot be made once an election proclamation has been made. This is therefore a scandalous mongrel’s breakfast but one which not many mongrels will touch,” Biti said.
Political analyst Iphithule Maphosa weighed in, stating that the government and Parliament’s inability to take note of constitutional amendment – Section 268 before signing into law demonstrated incompetence.
“The government, particularly the Ministry of Justice, Legal and Parliamentary Affairs failed to revise this law when there was still time and now they are doing it when an election beckons in order to suit the ruling party, even though other political parties may still benefit from that. This shows lack of seriousness in carrying out oversight duties,” he said.
