THE Movement for Democratic Change (MDC) has written to the Zimbabwe Electoral Commission (ZEC) expressing its loss of confidence in the electoral management bodyâ€™s ability to ensure a free and fair run-off.
ZEC has set June 27 as the date for the run-off that pits President Robert Mugabe against MDC leader Morgan Tsvangirai.
In a letter prepared by law firm Dube, Manikai, & Hwacha Legal Practitioners, the MDC said it was convinced that ZEC was incapable of ensuring the freeness and fairness of the poll. It said that it was also convinced an election managed and conducted by ZEC would not produce a result that signifies the will of Zimbabweans.
Said the MDC: “On the basis of the concerns expressed in this letter, the Movement for Democratic Change hereby formally notifies the Zimbabwe Electoral Commission that it has resolved that the Zimbabwe Electoral Commission is presently incapable of conducting elections in Zimbabwe that are free, fair, transparent, proper, efficient, and credible, and which ensure a result that represents the true will of the people of Zimbabwe in accordance with the constitution of Zimbabwe and Electoral Laws.”
The letter cites the delays in announcing the presidential election results, the three day announcement of the parliamentary election, “the unlawful recounts conducted by ZEC at the instigation of Zanu PF”, and the failure and refusal by ZEC to verify the presidential results, as some of its concerns.
“After the parliamentary elections it was apparent that the manner in which the House of Assembly results were announced to the nation by the Zimbabwe Electoral Commission was stage-managed.
“The results, which clearly, the Zimbabwe Electoral Commission had already received, were announced over three days and managed or manipulated to prolong for as long as was possible, the impression that Zanu PF had not lost the parliamentary election to the MDC,” said lawyer, Selby Hwacha in the letter to ZEC.
Hwacha said his client was of the view that ZEC was “pliant” and could not exercise its independence from the demands of Zanu PF.
The letter, the law firm said yesterday, had been served on all the ZEC commissioners. However, the Zimbabwe Independent was unable to obtain comment from the electoral body at the time of going to press last night.
Following the release of the contested March 29 presidential and general election, the MDC, civic society, and some parts of the international community have heightened calls for an international and regional observer mission on the basis of blunders that ZEC is said to have exhibited.
The letter comes after independent legislator for Tsholotsho North, Jonathan Moyo had filed a Supreme Court application in Bulawayo, saying ZEC had acted “unlawfully” in delaying and setting the date of the run-off. In his application, Moyo said ZEC had usurped the functions of parliament through its actions.
“The power to make and unmake the law,” Moyo argued, “clearly vests with the legislature. Where there are emergencies requiring the making or unmaking of the law in the absence of the legislature, then the power to make or unmake the law in that event rests with the (President) through the instrument of the Presidential Powers (Temporary Measures) Act pending ratification by parliament at a later stage.”
Moyo said ZEC had no powers to “alter or amend the legal periods within which elections must be held in terms of the law or fixing the date of elections”.
“Unless specified by law, the fixing of election dates and election periods for parliament or office of the president is the constitutional responsibility of the (President),” Moyo said.
“ZEC has no legal power or authority to fix an election date or define an election period for parliament or for the office of the president.”
Moyo sought an order compelling Mugabe to comply with Section 110 (3) as read with Section 38 of the Electoral Act, Chapter 2:13 in respect of the fixing of a date for a second presidential election, saying such a date should not to be fixed beyond June 15.
He also asked the court to declare the promulgation by ZEC of Statutory Instrument 73A of 15 May 2008 as ultra vires.
“In the event that this Honourable Court finds that the 2nd respondent acted ultra vires Section 192 (5) (a) of the Electoral Act in promulgating Statutory Instrument 73A, this court should strike down Section 192(5) (a) of the Electoral Act as unconstitutional,” read part of Moyoâ€™s application.
By Nkululeko Sibanda