By Mari Matutu | I spend time yesterday responding to questions by many people in our party about the video ” How to trap a baboon” which I used to illustrate how MDC A has been traped.
Let me be quick to say the whole idea is not to spend time explaining problems MDC A have.
The whole idea is to spend time explaining solutions.
The Party list members have a replacement criteria of s39(4) to (8) of act and the regime had thought it was a walk over and we sat down and raised 300K objectives. ZEC has a constitutional duty to respond to that. When they realised the contents of the objections they immediately issued a press statement that they are removing election restrictions. They now want to call for by elections. This is a diversionary tactic to move from objections going to election. People are planted make campaigns to people to accept by elections thereby defeating the objection. If can check they moved to councils and recalled more. Also as diversionary tactic.
This is were strategist begin to take over. Simple terms I say objections was a battle won. Do not mess it up.
How do you mess it up?
1) While Party List candidates has objection method from voters who have a way of explaining in detail the reasons behind objections; the constituency member has only voting by a by election way of replacing.
This is like finding an opinion from totally new people on a matter that is before us.
The by election does not respond to the constitutional violation by Speaker, president of senate or Minister of Local government but rather legitimise it and say there is vacancy when there is no vacancy.
2) The real reason to vote for constituency member is to choose a representative of the area for period of 5yrs. If by elections are called and accepted they will never answer the question that is before us which are:
i) Is it constitutional to create a vacancy by recalling members of another party using letters written by another party?
ii) What will stop the recall of the next person using the same method?
iii) In the first place is there a vacancy when the recall is unconstitutional.
1) Ony thick skin and those who have stamina can stand up and challenge this.
If the constitution is violated, every citizen has legal duty to stand up and resist any unconstitutional action. We deal with strategies each responding to a particular area.
i) The parliament and local government minister’s letters are responded to only by court papers and we have done so. The legal minds are dealing with it.
ii) The next part is ZEC which has potential to call for elections. Just like I said above we had a remedy of objection in party list members which is written in the act. The remedy is just a casual way of doing the same I suggest below.
iii) In terms of s233 ZEC as a chapter 12 institution has a direct duty which is its responsibility spelt out as follows
a)to support and entrench human rights and democracy.
b)to protect the sovereignity and interests of the people.
d)to promote transparence and accountability in the public institutions.
e)to secure the observance of democratic values and principles by the state and all institutions and agencies of government and government controlled entities and,
g)ensure injustices are remidied.
This is exactly what s233 demands from all chapter 12 of Zimbabwe constitution. ZEC is the first listed institution mandeted to carry out these objectives. If this matter is swept under carpet and we go to by election, from all the listed objectives of chapter 12 institution which one do you say remain as ZEC’s objective?
iv) s235 of constitution state that all independent commissions are not subject to control of anyone and no person must intefer with their function. The state must assist and protect their independence. This is just a summary of the said s235.
2) Armed with these sections that bind ZEC we build our strategy. We have noted that
a) the state insitutions have violated our constitutional political rights as in s67 of constitution.
b) that elections MUST be conducted only in accordance with electoral laws in terms of s120(2) and s 124(2) of constitution
c)that in terms of s4 of electoral act a political pact is a political party
d) in terms of s45B a candidate is what makes a member after election. By interpretation in s45B you first become a party candidate for election by process in s46 of act and after winning elections, a declaration in terms of s66 of act is made to the effect of making one a member as defined by s45B.
This declaration must state the name of the member and political party he stands for as duly elected member of a constituency.
In terms of s66(4) of act the contents of this declaration cannot be changed. So where it say “Chalton Hwende of MDC A is duly elected as member of parliament for Kuwadzana”, must stand for ever unless an order of ELECTORAL COURT changes the wording.
To say Chalton Hwende of MDC T which is a member of MDC A has ceased to belong to MDC T does not create a vacancy in any way. As it stand the declaration of election 2018 is there and states that he is MDC A and MDC A has not informed parliament that he has ceased to belong to MDC A.
e) state that Clerk of parliament and all town clerks are in posession of 2018 declaration with full wording of who the members are by national identity number and political party they stand for by s66 of electoral act declaration.
f) We have noted that SC ruling and MDC Alliance agreements relied on are all not electoral court decisions or electoral laws as required by s120(2) and 124(2) therefore cannot be used for anything to do with elections by any state institution, especially were the electoral laws are clear on the facts.
g) noted that ZEC registered office bearers of MDC A who signed under oath the nomination papers of members as legally appointed officers of a party MDC A.
No one else without a declaration under oath can claim right over the party MDC A or Candidate beside the party and party representative in legal papers.
All the above are electoral law provisions which ZEC cannot address by a by election.
3) In terms of s239(k) ZEC has a constitutional function of receiving and considering complaints from public and to take such action in regard to the complaints as it considers appropriate.
As I highlited the objective of ZEC in s243, as chapter 12 of constitution ; with ZEC’s independence as in s235 of constitution and as we noted all the requirements of electoral law and the constitutional obligation to only use electoral law, we now direct ZEC to do its s239(k) function.
It cannot give any excuse.
This is where the plan begins.
Make a statement on a press conferance stating all the above.
i) Make a declaration that you shall only participate in by elections that were created by death or some other party recalls.
ii) State that in terms of constitution and all the statutes above the s66 of electoral act declarations that brought members to parliament still stand and non have met the vacant requirements of s129(1) (a-n)
iii) state that ZEC cannot be given directives by parliament or government minister to create vacancy when it holds in its records valid s66 of electoral act declarations. If ZEC accept a notice of vacancy that does not match and correspond to declarations of duly elected members it is in breach of s235(3) and taking directive from state and government , thereby defeating all the the objectives of chapter 12 institution as spelt in s233 of constitution.
iv) State that its no longer a secret that through s39(6)(b) objection submitted before ZEC the issue of illegal action by parliament and minister are before you. The information in public domain is that over 300k people objected.
v) In terms of s239 of constitution you now have to direct the speaker and minister using your constitutional powers to a matter that is clearly before you and clearly unconstitutional and electoral laws.
vi) State that any attempt to call for by election on these constituencies will be subjecting yourself and the whole institution to an MDC T constitution and its articles as well as MDC A agreement which are all not electoral laws.
Should vacancies by s129(1)(k) arise in MDC A the notification shall only and only come from MDC A because we have office bearers registered in terms of s38A under MDC A. No other person or party can act on behalf of MDC A other than legal electoral law channels.
vii) We therefore declare that in terms of s120(2) and 124(2) of constitution all the seats in questions are still valid and carry the mandate of people. We will not accept any by election to be declared on those seats and if ever ZEC declare them vacant for elections let the world know that ZEC has lost its independence and there is no value in going for elections in Zimbabwe because any law or agreement by two people can come and poop on national constitution.
viii)ZEC was not directed neither can it be directed of vacancies by individuals. Vacancies are created by law. As it stand the law has no provision for a political party which is a member of a political party to recall members neither ceasing to belong to a political party which is a member of a political party yet a ground to recall.
ix) s129(1)(k) speaks of “ceasing to belong to a party”, the constitution of the country cannot direct to a cease that no law has first register to exist. You cease what the national laws have spelt out. A conviction has to be by courts not disciplinary actions of your house, death has to have a certificate by RG office, independent member has to state it on prescribed paper which is in schedule 9 of act and party membership has be the one you chose and made an oath before a commissioner of oaths that this is your s67 of constitution political choice. Then and only then can s129(1)(k) can talk of ceasing. As it stand we just have “death certificates” while we are alive. We have not ceased to belong to MDC A so s129(1)(k) does not apply.
We start to campaign on that and tell people if ever ZEC declare these vacant then Zimbabwe has no more constitution. If others are allowed to violet the constitution, why not others?
Only those with spine change the course of a sinking ship