Why Presidential Powers Act cannot be used to amend electoral law: Magaisa

By Dr Alex T. Magaisa

The purpose of this note is to explain why the Presidential Powers (Temporary Measures) Act cannot be used to enact amendments to the Electoral Act. Any thoughts to make use this draconian piece of law should be abandoned. 

The Herald on 10th June 2013 reported that President Mugabe “may have to invoke his powers as enshrined in the Presidential Powers (Temporary Measures) Act Chapter 10:20 and ensure that amendments to the Electoral Act, set to be discussed in Cabinet tomorrow, are quickly passed to comply with the July 31 election deadline”.

Amendments only by Act of Parliament 

The first reason is that in terms of s. 157 of the new Constitution, mandatory amendments to the Electoral Act can only be effected by an Act of Parliament and regulations made under the Presidential Powers Act do not qualify as an Act of Parliament. An “Act of Parliament” is specifically and clearly defined in s. 131 (2) of the new Constitution as:

“a Bill which has been –

(a) presented in and passed by both Houses of Parliament; and

(b) assented to and signed by the President in accordance with this Constitution”

As the preamble to the Presidential Powers Act confirms, it allows the President to make regulations but not to enact an Act of Parliament.

It is a unilateral declaration of a law by the President probably in consultation with the Minister of Justice but certainly it would not have been presented or passed by both Houses of Parliament.

The net effect of this is that since it is mandatory under s. 157 to provide for specific amendments as outlined in that provision by an “Act of Parliament”, these changes cannot be done by the President acting alone without Parliament by virtue of the Presidential Powers Act.

Although s. 2(2) of the Presidential Powers Act allows regulations to “provide for any matter or thing for which Parliament can make provision in an Act” this cannot be done to provide for “for any other matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act”

As we have observed, s. 157 of the Constitution specifically provides that certain things like the system of proportional representation, the code of conduct for political parties, the elections of representatives of persons with disabilities, the conduct of elections to provincial and metropolitan councils and local authorities must be provided for by an Act of Parliament.

These things are provided for not “in terms of” an Act but “by” an Act of Parliament and are not things where the regulations under the Presidential Powers Act can replace an Act of Parliament.

Powers under the Presidential Powers Act operate “subject to” the Constitution 

Section 2 of the Presidential Powers Act which deals with situations in which the powers to make regulations may be invoked operates “subject to the Constitution”.

In other words, powers provided for under the Presidential Powers Act have to conform and take into account the Constitution’s provisions which are superior.

As we have already observed, the Constitution specifically provides that primary law making powers cannot be delegated by Parliament and making amendments to the Electoral Law as provided for under s. 157 of the new Constitution can only be done through primary legislation.

The President cannot therefore issue regulations under the Presidential Powers Act to achieve what should be done through primary legislation, i.e. an Act of Parliament.

Furthermore, in terms of s. 134 (a) of the new Constitution, only Parliament has the power to make primary legislation and an Act of Parliament through which amendments must be made is primary legislation. S. 134 (a) provides that,

“Parliament’s primary law-making power must not be delegated”. 

The Presidential Powers Act only confers authority to make regulations and primary legislation and it also excludes certain primary laws that the regulations cannot replace. As s. 134 (a) confirms, Parliament cannot delegate its primary law making powers.

Therefore, to any extent that the Presidential Powers Act represents a delegation of Parliament’s primary law making power, even if is for a temporary period, it is arguable that the Presidential Powers Act no longer meets the test of constitutionality.

Double Standards over use of the Presidential Powers Act

Applying the Presidential Powers Act to amend the Electoral Act would be the height of hypocrisy and double-standards.

One of the reasons cited in the Constitutional Court judgment in the Mawarire case, compliance with which is a ground upon which the use of the Presidential Powers Act is being justified, was that unless elections were held by 29 June 2013 when Parliament automatically expires, the President would start ruling by decree.

This was deemed to be a good reason enough to set a deadline for the elections and arguments have been advanced that the President does not want to rule by decree and wants to promote constitutionalism.

The irony of proposing to use the very same Presidential Powers Act even while Parliament is still in existence is lost on the proponents of this course of action.

Surely, if it is wrong to use the Presidential Powers Act in its current form after the expiry of Parliament, it must be wrong to use it now or at any other time.

It is impossible to reconcile these two positions: on the one hand, that it is wrong to let the President rule by decree using the Presidential Powers Act after the elections and on the other hand, that it is perfectly right for the President to make a decree to enact electoral law amendments using the reviled Presidential Powers Act. Anywhere in the world that would be called double-standards.

Conclusion

While the Presidential Powers Act benefits from the presumption of constitutionality until repealed or amended by Parliament or declared unconstitutional by the Constitutional Court it is arguable that if used it can be challenged and it is unlikely to pass the constitutionality test unless the adjudicating judicial authority is compromised.

The law usurps the power of Parliament to make primary laws in a manner that offends constitutionalism and democratic principles. It is the epitome of concentration of powers in the executive arm of Government.

The effect of regulations under the Presidential Powers Act is to override any other laws to the contrary, which make the President overly dominant and over-bearing toward Parliament.

Such a situation is untenable and cannot pass the constitutionality test under the new Constitution given that the making of primary legislation is in the exclusive domain of Parliament.

To the extent that it allows the President to, in effect, make regulations that are tantamount to primary law for a period of 6 months, it essentially renders Parliament ineffective and that is totally contrary to what the new Constitution promotes.

The most critical thing about the next election is the legitimacy of the result. This depends on, among other things, the credibility of the processes leading up to and during elections.

There is need to build consensus through consultations to ensure that everyone goes into the election understanding that the process is fair, transparent and democratic.

Unilateralism and resorting to patently draconian legislation such as the Presidential Powers Act does little to protect the credibility and legitimacy of the election process.

Dr Alex T Magaisa is the political advisor to Prime Minister Morgan Tsvangirai