PRESIDENT Emmerson Mnangagwa, his deputy General (Rtd) Constantino Chiwenga and the Zimbabwe Electoral Commission (Zec) have been taken to court by disgruntled voters for unilaterally suspending by-elections in contravention of provisions of the Electoral Act.
The Zimbabwe Human Rights Commission (ZHRC) also questioned the suspension of the byelections, and called on Zec to prove its independence on electoral matters.
In another twist, recalled MDC Alliance legislator Dorcas Sibanda (proportional representation) has taken interim MDC-T leaders Thokozani Khupe and Douglas Mwonzora, Zec, the Speaker of the National Assembly Jacob Mudenda and the MDC-T party to the High Court to challenge her recall.
Nine registered voters based in Harare, led by Ellah Tayengwa from Kuwadzana said Chiwenga’s Statutory Instrument 225A of 2020, suspending the by-elections was unconstitutional.
“It be declared that, Zec and President Mnangagwa’s decision not to hold elections before the 30th of September 2020, was in breach of the Electoral Act, Public Health Act and Sections 258 and 259 of the Constitution of Zimbabwe,” read part of the declaration sought by the litigants.
In the founding affidavit, Tayengwa through her lawyer Tendai Biti submitted that the actions by Zec, Mnangagwa and Chiwenga, had violated her constitutional right by deferring the byelections following the recall of Chalton Hwende (Kuwadzana East MP).
“We contend, therefore, that where an electoral vacancy arises, the Constitution demands that there has to be an election. The Constitution empowers us and clothes us with a right to participate and vote. A right so provided in the Constitution itself,” she submitted.
Tayengwa and others who include the Elections Resource Centre (ERC) argue that the Constitution enjoins the President to proclaim dates for an election within 90 days of the declaration of a vacancy and does not provide an option.
“Thereinafter the President shall, within a period of 14 days thereafter publish a notice in the gazette ordering a new election to fill the vacancy in the same manner, with any changes that may be necessary as is provided in section 3(b) in regard to general elections and the provisions of the Electoral Act shall apply accordingly,” she submitted.
The applicants also argued that regardless of electoral vacancies arising since January 2020, Zec and Mnangagwa had failed to uphold their constitutional obligations.
“Since January 2020, vacancies have arisen, in local authorities and in the National Assembly, necessitating by elections. However up until Chiwenga enactment of Statutory Instrument 225(a) of 2020, Zec and Mnangagwa have procrastinated on by-elections,” they submitted.
ZHRC said voting was a constitutional right.
“The Constitution under section 67 provides for political rights. It gives every Zimbabwean citizen the right to free, fair and regular elections for any elective public office and to make political choices freely,” ZHRC said in the statement.
The ZHRC, which has come under fire in the past from the government after producing damning reports on human rights violations and the use of food aid as a political tool, came out strongly saying that government was exhibiting double standards by suspending by-elections.
“The ZHRC also notes that the government has since relaxed some lockdown measures by allowing gatherings of at most a hundred people, schools and churches have reopened, taking cognisance of the COVID-19 precautionary measures. Places such as schools for example, have hundreds of people concentrated in one place and by 9 November 2020, schools will be operating at maximum capacities.
“The ZHRC also notes that the government (through Parliament) allowed the conducting of the Public consultations for the Constitutional Amendment Bill (No 2), which were carried out across all provinces during the peak of the COVID-19 pandemic with more strict lockdown measures in June 2020,” read the statement it part.
“Government argued that precautionary and safety measures would be adhered to during the consultations. Indeed through monitoring of these consultations, the ZHRC witnessed the practice and adherence to such precautionary measures. If COVID-19 precautionary measures could be practised in such an environment, the ZHRC is of the view that by-elections could in the same spirit, proceed as they are polling station based,” ZHRC said.
The rights body described government’s suspension of the by-elections as “selective” application of the law by the ruling party, which has itself proceeded with its own primary and district co-ordinating committee elections, for instance.
The ZHRC also called on Zec to act independently, adding that: “Government authorities and structures must exercise separation of powers, consultative engagements and inclusion in serious decision making processes. Pandemics should not be used as an opportunity for States to unleash absolute Executive powers”.
In the case of Sibanda where she sues Khupe, Mwonzora, Zec, Mudenda and the MDC-T party, she stated that she was shocked when her recall was announced in the National Assembly as she had never terminated her membership of the MDC or joined another party.
Sibanda crossed over to the MDC-T led by Khupe before her recall in an attempt to save herself from being axed.