Judge grills ZEC over by-elections

May 24, 2021

High Court judge, Justice Siyabona Msithu, on Monday (24 May 2021) pressed lawyers representing the Zimbabwe Electoral Commission (ZEC) to explain the poll body’s indefinite suspension of by-elections in areas where vacancies arose mostly because of parliamentary recalls that began in 2020.

Brenna Matendere

The ZEC has repeatedly insisted that holding by-elections would expose voters to Covid-10, even though Zimbabwe has witnessed large gatherings of late and polls have been held successfully in other African countries.

Tendai Biti led an application against the continued suspension of by-elections, representing the Election Resource Centre (ERC) and Women’s Academy of Leadership.

The electoral commission was tagged as the first respondent while President Emmerson Mnangagwa and his deputy, Constantino Chiwenga—who doubles as Health minister—were also cited as respondents.

The first responded on the application filed on in October last year was ZEC, followed by President Emmerson Mnangagwa and the ministry of Health led by minister Constantino Chiwenga , who doubles as vice President.

On October 1 2020, Chiwenga amended the Public Health (Covid19 Prevention, Containment and Treatment) Statutory Instrument 255 and inserted a clause stipulating that “the holding of any by-elections to fill a casual vacancy in parliament or in a local authority is, for the duration of the period of declaration of Covid 19 as a formidable epidemic disease, suspended.”

To date, 42 parliamentarians and 81 councillors belonging to the MDC Alliance have been recalled mostly by the MDC-T led by Douglas Mwonzora, alleged disloyalty. The Lucia Matibenga-led People’s Democratic Party (PDP) instructed its secretary-genera,l Benjamin Rukanda, to also recall Biti and five other MPs it said belonged to the party but had joined the MDC Alliance.

During court proceedings on Monday, Msithu repeatedly nudged ZEC, represented by Tawanda Kanengoni, to justify the continued suspension of by-elections.

“Isn’t it that elections are just held for one day? Elections have been held in Tanzania and in the US. Elections are a national issue,” Justice Msithu asked lawyer Kanengoni, who pressed on with the line that ZEC feared the outbreak of a third Covid-19 wave

“We agree that by elections must be held within 90 days according to section 158 of the Constitution. However because of Covid-19 which is a national disaster, by-elections cannot be held as the electorate may not be able to participate substantively,” Kanengoni told the court.

However Justice Msithu pressed further.

“What makes elections different from any other activities since schools and universities are open and people are allowed to use public transport and are moving around?” asked the judge.

Kanengoni then noted that ZEC could only conduct by-elections after a presidential proclamation, which was yet to come.

But Biti insisted that suspending the by-elections was a political strategy.

Biti pointed out that ZEC had said it was ready to hold elections on 5 December last year but was jolted into suspending them by the government.

“All constitutional obligations must be complied with diligently and without delay. The motive of imposing a ban on by-elections has nothing to do with Covid-19 but it’s a suppression of democracy,” he said.

The ZEC lawyer failed to tell the court if there was any indication when the indefinite suspension of by elections is going to be lifted.

Justice Msithu reserved judgment on the case.

Speaking to journalists after the court proceedings, Biti said he was hopeful that suspension of the by-elections would soon be lifted.

“The matter was furiously argued. Judgment has been reserved. We believe that the court will do justice to the constitution…which makes it clear that by-elections must be held within 90 days of the vacancy,” said Biti.

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