The country is bracing up for an election in 2013 to choose a new government and replace the current dysfunctional marriage of convenience. What is uncertain is the day when the harmonised elections will take place given the difficulties being encountered in finalising the constitution-making process, a key requirement for the holding of polls. Many questions have been asked on the extent to which the President has powers to extend the life of the current Parliament and his own tenure in the event that the polls are further delayed beyond 2013.
Opinion by John Makamure
Constitutionally, the five-year life of Parliament comes to an end on June 28, 2013, which is the day that the President was sworn into office after a violent and disputed presidential election run-off. Section 63 (4) of the Constitution says Parliament, unless sooner dissolved, shall last for five years, which period shall be deemed to commence on the day the person elected as President enters office in terms of section 28(5) which requires the President to enter office by taking and subscribing before the Chief Justice or other judge of the Supreme Court or the High Court the oaths of loyalty and office. The term of office of the President is five years concurrent with the life of Parliament. So when the President dissolves Parliament, his tenure also comes to an end. The Constitution, however, empowers the President to dissolve Parliament anytime, meaning that the life of Parliament can come to an end much earlier than June 28, 2013.
But under what circumstances can the President extend the life of Parliament beyond five years and consequently his own tenure in office? Section 63 of the Constitution says this can only be done when the country is at war, in which case the extension cannot be for more than one year at a time. The other circumstance is when the President declares a state of public emergency under Section 31 (J) of the Constitution. In this case, Parliament is extended by not more than six months at a time. I, however, do not foresee war breaking out in Zimbabwe next year – neither do I foresee a state of emergency being declared to necessitate extension of the life of Parliament. What it means is that elections have to be held within four months (by end of October 2013) after the expiry of the life of Parliament and the term of the President on 28 June 2013. Constitutionally, the elections cannot be held beyond October next year unless something has necessitated a state of emergency being declared. In any case, the declaration of a state of emergency by the President has to be ratified by the House of Assembly within 14 days if Parliament has not been dissolved. If dissolved, the declaration remains in force for a period not exceeding 30 days.
While the President has power to dissolve Parliament, the legislative body itself can also remove the President from office. Section 29 (3) of the Constitution says the President shall cease to hold office if a report prepared by a joint committee of the Senate and the House of Assembly, appointed by the Speaker in consultation with the President of the Senate upon the request of not fewer than one-third of the members of the House of Assembly, has recommended the removal of the President. But this must be on the ground that the President has acted in wilful violation of the Constitution or that he is incapable of performing the functions of his office by reason of physical or mental incapacity. The other reason for the removal of the President by Parliament is gross misconduct. However, for the removal to take effect, the Senators and members of the House of Assembly sitting together must resolve by the affirmative votes of not less than two-thirds of their total number that the President should be removed from office. The current composition of Parliament (hung Parliament) makes it virtually impossible to garner the two-thirds majority for the removal of the President.
Parliament can also choose a President in the event that the office becomes vacant before expiry of its term of office. Section 28 (3) (b) of the Constitution says an election to the office of President shall take place in accordance with the Electoral Act by members of the Senate and the House of Assembly sitting jointly as an electoral college within 90 days after the office of President becomes vacant by reason of his death or his resignation or removal from office by Parliament. The person elected by Parliament as the President will only rule until the next harmonised elections on the expiry of the government’s term of office.
- John Makamure is the Executive Director of the Southern African Parliamentary Support Trust writing in his personal capacity. Feedback: [email protected]
