THERE are serious anomalies in by-elections scheduled to be held starting today to fill in vacant seats resulting mainly from expulsions of Members of Parliament belonging to Zanu PF and the Movement of Democratic Change (MDC-T), making them unconstitutional and illegal, a leading researcher and lawyer has said.
Research Advocacy Unit researcher and lawyer Derek Matyszak noted in an article titled Bye Bye Constitutionality that the constitution has been violated as some of the by-elections are not being held within the 90-day period stipulated in the country’s supreme law.
This observation comes as by-elections for Mount Darwin West and Chirumhanzu-Zibagwe to replace former Vice-President Joice Mujuru and her successor Emmerson Mnangagwa respectively are set for today. At least 14 more by-elections are set to be held after the MDC-T recalled 21 of its MPs and senators last week. Expelled Zanu PF MPs Didymus Mutasa and Themba Mliswa are challenging their dismissal in court putting by-elections in their constituencies on hold.
This comes as information gathered this week indicates that attempts by the MDC-T to accommodate senior party officials who lost in the parliamentary elections in July 2013 to fill in the seven vacant senatorial seats might hit a brickwall if the Zimbabwe Electoral Commission (Zec) decides to stick to the party list forwarded to it before the elections.
This is the same approach that was used to block former Reserve Bank governor Gideon Gono from becoming Buhera West senator. The MDC-T has decided not to contest the 14 seats created by the recall of MPs elected on its ticket before the break away led by Tendai Biti.
“The Constitution requires that ‘polling in by-elections to parliament and local authorities must take place within 90 days after the vacancies occurred’…,” Matyszak said. “None of the scheduled by-elections will take place within the requisite time. This symptom of a lax approach to constitutionality, serious as it is, pales against other major breaches of the constitution occasioned by these by-elections.”
Matyszak said the by-elections being held starting today represent a constitutional crisis because of the failure by Mnangagwa, who is also Justice minister and in the parliamentary legal committee, to align electoral laws with the constitution.
“When introducing the Electoral Amendment Bill to parliament, Justice minister, Mnangagwa, stated that the failure to pass the Bill and align electoral laws with the constitution could result in a constitutional crisis ‘for which none of us wants to be held responsible’,” Matyszak said.
“That constitutional crisis is, however, now upon us, and Mnangagwa and the parliamentary legal committee are quite clearly responsible.”
Matyszak also observed in his report that Mnangagwa failed to align electoral laws with the constitution as far as voter registration is concerned.
The Bill, he said, left voter registration in the hands of the Registrar-General. This is in violation of the constitutional requirement that voter registration be carried out by Zec.
“To attend to this problem Mnangagwa stated that at the Committee Stage he would seek to amend the Bill and substitute “Registrar-General of Voters” with “the Commission”. This was never done – probably because the detailed provisions relating to voter registration cannot simply be brought into line with the Constitution by such a substitution,” Matyszak said.
He noted: “The constitution requires that the by-elections be held, but the laws which the constitution requires should govern these elections are not in place. A breach of the constitution is unavoidable. The problem has its origins in the precipitate proclamation of the 2013 elections, before proper electoral laws were enacted – the result has been a series of constitutional violations of which this is but the latest.”