By Mari Matutu | I saw a letter written by the Chairperson of Zimbabwe Electoral Commission to the MDC Alliance Secretary General, Chalton Hwende. While I have no contents of what exactly the SG had asked ZEC, from the response I will make my assumption.
From the heading it looks like a response to the objections of party-list candidates nominated by MDC T.
Whatever the SG could have said, all ZEC states is that the vacancy filling is not by instruction from MDC T but a peremptory process triggered by parliament notices given to ZEC.
I have people asking for my comment on the letter. I will not just opinionate, but put forward my comments even on by-elections.
1) ZEC is a constitutional body formed in terms of chapter 12 of the Constitution. There is a reason for its formation and existence. The objectives of all chapter 12 institutions are listed in s233 of the constitution.
They are listed a-to f. I am just going to take three objectives on why ZEC was formed and why it exists. This does not mean the other listed are not important. I want those that are direct to issues at hand.
s233 – The Independent commission have the following general objectives in addition to those given to them individually:
i) (c) promote constitutionalism.
ii) (e) to secure observance of democratic values and principles by the state and all institutions and agencies of government and government controlled entities.
iii) (f) to ensure injustices are remidied
2) Having found the above as objectives of ZEC which ZEC cannot at any time forget or miss as core to its existence, upon receipt of notice from parliament the following should have been obvious:
i) What they received from parliament was a notice. A notice is not a directive. A notice just informs you of something that has happened or is alledged to have happened.
ii) ZEC has oversight duties spelt in s233 of the constitution and as I selected the three above, one can see that it is duty of ZEC and the reason why it was formed that constitutionalism is observed: to make sure parliament as an arm of the state observe values and principles of democracy and that injustices are remedied.
iii) There is nothing preremptory about receipt of a notice of fake vacancy. It is the duty of ZEC to check the notice if it complies with the law and the constitution. Check with its records if in their records MDC T ever it had a seat in the said constituency. It has to check if the parliament has complied with all the laws of the land and observed the democratic values and principles.
iv) It is the duty of ZEC in terms of s233(f) that injustice are remedied at any stage they happen.
3) The next point is highlighting to ZEC the violations of the constitution by parliament, the electoral act provisions that were violated bringing injustice by parliament which by constitution is the duty of ZEC to secure and bring to justice
i) Senators must elected in accordance with electoral laws in terms of s120(2) and National Assembly member are elected in accordance with electoral law in terms of s124(2).
ii)s157(1) of constitution direct that there be an Act of parliament to run elections and referendums as the electoral law.
iii) s157(3) of constitution direct that the electoral law provide for the nomination of candidates to take place at least 14 days after proclamation of ection date. Polling must be held at least 30 days after nominations.
iv) The above provision directly show that from constitution itself only electoral laws which are by act of parliament and not party constitution or agreements are relevant. This is were I feel SG was saying ZEC is directed by MDC T because parliament and ZEC are guided only by constitution and act of parliament as their laws. If speaker is now holding an agreement of political parties to declare a vacancy or if a chapter 12 institution holding all information showing that MDC T never had seats in those constituencies go on to fill the seats as if there is vacancy then its taking directives from MDC T. If not for that the laws are there to respond with to MDC T’s letter or for ZEC s233 of constitution is there to respond to parliament notice with.
v) Above all s235 state it clearly that ZEC is not subject to direction and control of anyone, must act in accordance with constitution and exercise their functions without fear, favour or prejudice.
No person may interfer with their independence. If a notice from parliament can direct ZEC to fill vacancies where there is clear evidence of injustice and unlawful actions then where is the independence of ZEC. It is clear that ZEC has taken away the jacket of a commossion to become a polical conduit of sections of political parties fighting against MDC A.
4) The following electoral laws are clear to this matter and enough to decide without inviting any party agreement or constitution or SC ruling.
i) s2 Of Electoral act says it all that the act is only for elections non of it must be used for settling political and civil duties
ii) s4 of Act interprets a political pact as a political party such that nobody must ever bring any interpretation of what MDC A is which is an intepretation not from electoral law.
iii) s38A state it clearly that only political parties that come forward and show interest to contest and submit names of office bearers are recognised as political parties in electoral laws. The office bearers have roles that are stipulated in the Act and they make declarations under oath. MDC A had such office bearers who signed nomination papers for MDC A.
iv) s45B interprets what is a constituency candidate. This shows clearly that before one becomes a member you first have to be a candidate. This takes us back to s157(3) of constitution where it says the electoral act must provide for a law on nomination to be done 14 days after date of election. This is the official period of the act where candidates look for political parties of their choices as stipulated by constitution of the land. Now all what is given as October 2017 agreement used to nominate candidates is far away from period of nominations such that it can be inferred that it ever happened for purpose of election. The signatory mentioned in the document died well before the date of elections. That agreement does not show how MDC T presented itself to ZEC as willing to contest election as required by s38A. The document does not show how MDC T registered its office bearers to sign nomination papers for candidates. Above all it does not show us the relationship that was there between the said candidate and MDC T on a sworn paper.
v) The s157 (3) set periods shows us that after elections date has been announced next there is nomination time which make up a candidate. This is the official state of whom you are before election. The party that the candidate belong to in this period from day after nomination to election is the only stipulated period before election that can be used for electoral law purposes. You cannot use October 2017 in July 2018.
vi) The nominations are done on a prescribed form. One which the law state the details. In particular these members chose MDC A which was a party registered by ZEC in terms of s38A. Some members from MDC T of 2017 who were so vocal in impeachment of Mugabe declared that they had no political party. They were not MDC T or MDC A yet there were MPs in 2017 when the agreement was signed. The point is political choices are made during the stipulated time and by way of choice made on a prescribed form. In this case these chose MDC A as theirs before election and by s45B they became candidates.
vii) s45B further interpret a constituency member as on elected for a constituency and party list seats as those elected for seats allocated for party list.
Clearly it shows that event before one becomes a member of Parliament is candidate. The event before one becomes party member is party candidate.
The official document of membership is election declaration and the official document to show joining of the party is nomination paper. s129(1) Should any MEMBER OF PARLIAMENT cease to belong to that which the law established as the way of being a member then he or she must be recalled again by the party.
viii) What is constitutional in receiving a letter from a party that is not on one’s election declaration and use the party name that is not on declation and say you have ceased to belong to it. Assume you have ceased to belong to MDC T by article 5.10 of its constitution, how does that explain ceasing to belong to a party that you were belonging at time of election?
ix) s66(4)State it clear that no one can change the election declaration except an electoral court after a petition. No electoral court or petion has sat to say that these MPs were MDC T members which is a member of MDC A hence if they cease to belong to MDC T then s129(1)(k) apply.
x) The whole of s129(1) has no provision where a vacancy is created by ceasing to belong to a political party A which is a member of B. As far as law shows MDC T contested election against MDC A each as political party.
xi) s161 of electoral law establishes an electoral court and its jurisdiction. s161(2) give the electoral court exclusive jurisdiction over appeals, applications or petitions in terms of electoral act. The SC ruling was a civil division matter between MDC T members on matters of who was to take over Tsvangirai in February2018. This had nothing to do with elections because even then no election date had been set then. It never as an electoral court at all and the matter was never electoral law matter. Again should it be established that Khupe was to succeed Tsvangirai but still their party had to present it self for election and register office bearers. There was also no law that precluded Chamisa from standing as a candidate and Khupe as candidate and all as MDC A candidates.
xii)s191(1)(b) requires only ZEC to provide laws that guide the elections to public. If it was a law to guide us as voter ZEC should have provided the copy Alliance agreement to us the public and decide with full knowledge.
5) I conclude and say the party must use this letter to respond now at a prrss conference and tell the world that ZEC has lost the constitutional mandate. Filling of vacancies by by election or s39(4) does not address the following questions which will alwsys be there
i) Is it constitutional for a party A to write letter of recall for party B
ii) Is it constitutional to refer to SC ruling or party agreements or constitution which are not electoral laws or courts and direct electoral process which must only be done by electoral laws
iii) What will stop another event like that from happening.
iv) What does ZEC’s independence serve if it is for rubber stamping thefts.
I hear that the likes of Ruhanya and others are calling for rebrsnding of the party. These are talking from corporate law point of view. They also limit themselves to law yet a mitary junta does not operate that way. It unfortunate our leaders being lawyers contitue to seek advise of lawyers. It does not add value.
At this juncture rebranding is no option for following reasons
i) Mnangagwa’s challenge is legitimacy. He got 2/3rds majority so do not think he wants more seats. He want an opposition to present to the world.
Ii) Chamisa’s challenge is in 2018 election results. This is the political currency that he must never throw away at least for duration of term.
iii) Once you rebrand you show a weakness to electorate that you have no spine to fight and defend its mandate, you show weakness to international community that you cannot stand up. Above all the strenght in opposition is in mismanagement of things. Trust me all those being spared in parliament are not yours but capital for establishing a puppet opposition.
iv) What ever brand you bring they just rig and give Khupe the votes.
Why do we give in easy like that. The law is on our side. I fail to trust such advisors. Stand up and defend our vote.
Ratova bhasikiti raTizirai haro kani. 300 objections from people next ndimi makutotiza party futi. Haaau