The beleaguered former Reserve Bank of Zimbabwe Governor, Dr Gideon Gono, has been disqualified to fill the vacancy in the Senate for Manicaland province as he is not a resident of any wards in the province.
The Senate seat became vacant after the death of Kumbirai Kangai after which Zanu PF Manicaland province recommended Dr Gono to fill the post.
In letter addressed to Zanu PF National Chairman Simon Khaya Moyo by the Zimbabwe Electoral Commission dated 15th of September this year and stamped on the 17thof the same month, ZEC said records available show that Dr Gono is not a registered voter in any of the wards in Manicaland province as he was only registered on December 5, 2013.
ZEC says the constitutional function to register and transfer voters vested in the Registrar General of Voters in accordance with provisions of Clause 6(2) of Part 3 of the Sixth Schedule to the constitution for the purposes of 31 July ceased when the voters roll for those elections closed on July 10, 2013.
Any purported transfer of a voter by the Registrar General after that date is of no force and effect and is constitutionally unsustainable.
ZEC further advises that the most practical way around the current difficulty would have been for Dr Gono to apply to the commission to transfer his vote from Harare to Buhera West.
Based on the party-list system, former CIO boss and veteran freedom fighter Cde Shadreck Chipanga should have replaced the late Cde Kangai, who was elected to the Senate through proportional representation, but for the Politburo's intervention.
The ZEC chairperson, Justice Rita Makarau, noted an attempt by Registrar General Tobaiwa Mudede to transfer Gono from his ward in Harare in December last year to Manicaland, but the "purported transfer" was "constitutionally unsustainable", Justice Makarau added.
"We wish to advise Honourable Chairman that, according to our records, Dr Gideon Gono is not registered as a voter in any wards in Manicaland Province. This is notwithstanding the Certificate of Registration of a Voter Serial no. 454601K, issued at Makombe Building on December 5, 2013, attached to his nomination forms," said Justice Makarau.
The ZEC chairperson said Gono could not be registered or transferred as a voter to Manicaland Province now since the voters roll had been closed on July 10 for the July 31, 2013 harmonised elections and any power to register or transfer voters became the preserve of the ZEC after that date.
She added: "As you're aware Honourable Chairman, the constitutional function to register and transfer voters vested in the then Registrar General of Voters in accordance with provisions of Clause 6 (2) of Part 3 of the Sixth Schedule to the Constitution for the purposes of July 31, 2013 ceased when the voters roll for those elections closed on July 10, 2013".
"Any purported transfer of a voter by the Registrar General after that date is of no force and effect and is constitutionally unsustainable. In view of the fact that Gono is, on the face of it, not as of now resident in any ward in Manicaland, he then becomes disqualified to fill a vacancy in the province in terms of Section 45D (1) (d) of the Electoral Act (Chapter 2:13)."
Justice Makarau said now that the function to register and transfer voters is vested in the ZEC, the most practical way around the current difficulty would have been for Gono to apply to the commission to transfer his vote from Harare to Buhera West.
"Again, Honourable Chairman, we regret to advice that while we now have the constitutional mandate to register and transfer voters, and are willing and ready to register and transfer voters, there is no legal framework on voter registration and allied matters as envisaged in Section 157 (1) (b) of the Constitution, a vacuum that has made us hold back on voter registration, thereby prejudicing not only Gono in this case, but the generality of the electorate in Zimbabwe," she said.
Zanu-PF secretary for administration, Cde Didymus Mutasa, last night said Zanu PF would bend the law to help Gono get into the Senate.
"The Politburo wants Gono to be a Senator and if it means that the law would be amended, then let it be," he said. "No one will reverse the decision of the Politburo. We will ensure that the law fits with the requirements of the party.
"If you see a big man failing to land a position because of opposition from small children, then there's something wrong."
But legal analysts said even if the law were to be enacted overnight, allowing Gono to transfer his voter registration, he would still face major hurdles.
"Section 120 of the Constitution says nominees for the Senate must be on the party list, Gono is not. It would be impossible for him to get to the Senate as it stands, even the recently-amended Electoral Act is quite clear on this — one can't be on the party list retrospectively," said one city lawyer.