Opposition leader Morgan Tsvangirai’s MDC party is dragging President Robert Mugabe to court in a bid to stop all the country’s pending by-elections before the passage of necessary electoral laws, in conformity with Zimbabwe’s new Constitution.
In a Constitutional Court application filed on Monday, the MDC cited Mugabe as one of the respondents in the matter, after the nonagenarian recently set March 27 as the date for by-elections in Chirumhanzu-Zibagwe and Mt Darwin West.
MDC secretary-general Douglas Mwonzora said in the application that the elections, which are now just a week away, could not be held as that would be a breach of the country’s new Constitution.
“There is no law which permits the holding of elections under electoral laws that are ultra vires the Constitution. The current Electoral Act without the necessary alignment with the supreme law of the land is incapable of enabling a free and credible election,” reads part of Mwonzora’s application.
The Zimbabwe Electoral Commission (Zec), which is the 1st respondent in the matter, has already established voter registration centres which the MDC contends is contradictory to its earlier position that it could not provide a voters’ roll because of the absence of enabling legislation.
“Curiously, 1st and 2nd respondents (Zec and Zec chairperson Rita Makarau) established voter registration centres even without the ‘robust and appropriate legislative intervention’ that was referred to by the 2nd respondent as recently as December 2014, as being a necessary precondition for the execution of credible voter registration and other electoral processes,” contends Mwonzora.
The other respondents in the matter are Justice minister Emmerson Mnangagwa (5th), registrar general Tobaiwa Mudede (3rd) and attorney general Prince Machaya (6th).
In 2014 Makarau argued that “an Act of Parliament must provide for the conduct of elections and referendums,” but in its submissions the MDC says “no such law as envisioned by the Constitution has been put in place”.
“If the alignment of laws is an ongoing process and if respondents are close to actualising the alignment of the Electoral Act with the Constitution, through a General Laws Amendment Bill, as soon as is promised in the opposing affidavit, then there surely can be no reason for the rush into the two illegal by-elections, and any other that the respondents may be planning,” Mwonzora says.
The MDC also argues that there is need to bridge the gap between the enabling act and the Constitution.
“It is difficult to understand why the 4th and 5th respondents (Mugabe and Mnangagwa) should on one hand indicate that the amendment of the Electoral Act to align it with the new Constitution is about to be completed, then on the other hand argue that the process is still far from being completed,” Mwonzora added.
He said the fact that the alignment of legislation with the Constitution was “a mammoth task which cannot be completed overnight”, could not be the justification for the conduct of illegitimate elections that were ultra vires the Constitution of Zimbabwe.
The MDC further argued that holding elections with a defective constitution was a “self-aggrandisement exercise for the benefit of some of the respondents and their families”.
It also attached Makarau’s response to another application filed by Zapu leader Dumiso Dabengwa in December last year, where he was demanding the provision of a new voters’ roll.
In the response, Makarau said the amendments introduced by the Electoral Amendment Act were of no effect to some sections of the Electoral Act.
“Firstly, the first respondent (Zec) is given the role of adviser to Parliament with respect to proposed amendments to the electoral law. It is not given the power to dictate the content of any legislation that is eventually enacted by parliament.
“Secondly, parliament is only enjoined to consider the recommendations made by the first respondent. It is not mandated to accept them.
“Thirdly, the function of Parliament differs materially from the function of the first respondent and the former does not take direction from the latter in the execution of its mandate as it is Parliament that will remain accountable for any legislation that it passes,” she said.
Dabengwa, the leader of the Zimbabwe African People’s Union (Zapu), filed his Electoral Court challenge demanding an electronic voters’ roll from the Zec last year.
The former Cabinet minister also demanded that the commission compiles a new voters’ roll and register in accordance with the country’s new Constitution.
In the application, Dabengwa, who is represented by the Zimbabwe Lawyers for Human Rights, cited Makarau, the electoral body itself, the chief elections officer and Mnangagwa as respondents.
Dabengwa, who stood as a presidential candidate for his party in the 2013 elections, said he had a right to act in the public interest in terms of the new Constitution of Zimbabwe.
The former Zanu PF politburo member said Zec should comply with five key provisions of the country’s Constitution and the Electoral Act.
He said according to the country’s new Constitution which, came into force on May 22, 2013, every citizen over the age of 18 had a right to vote.
However, he noted, since the new Constitution came into effect, the commission had not complied with its function to register voters on a continuous basis.
Dabengwa said without the registration of voters, there could not be an election in terms of the Electoral Act.
“I understand from articles in the press in September 2014, in relation to filling a vacancy in the Senate for Manicaland Province and the eligibility of (former Reserve Bank Governor) Gideon Gono to fill that vacancy that the commission claims that there is, at present, no legal framework for voter registration and that as a result nobody can be registered as voters,” he said.
The Zapu leader said it was Zec’s obligation to ensure continuous voter registration, in order to keep an up-to-date voters’ roll, which should be readily available to members of the public, upon meeting the necessary requirements.
“If, as the commission apparently now contends, it has no power in terms of the Electoral Law to register voters, this would inevitably lead to the dire conclusion that it is unable to carry out one of its most fundamental constitutional functions,” Dabengwa said.
Dabengwa further stated that it was not sufficient for the commission to take over and use the old voters’ roll from the registrar-general.
“It is incumbent on the commission to compile a completely new voters’ roll,” he said.