Case Alert
29 November 2021
Six months after hearing an application challenging a government ban of by-elections, the High Court is yet to hand down its verdict.
High Court Judge Justice Siyabona Musithu on Monday 24 May 2021 reserved judgment after presiding over the challenge of the by-elections ban and indicated that he needed more time to go through all the submissions from the parties involved before handing down his verdict on the application.
On 2 October 2020, government suspended the holding of by-elections with Health and Child Care Minister Constantino Chiwenga issuing Statutory Instrument 225 of 2020 which indefinitely banned the holding of all by-elections to fill in a significant number of vacancies in both the National Assembly and in local authorities caused through recalls of office holders and deaths, claiming that it was a precautionary measure to contain the spread of coronavirus.
But Chiwenga’s ban of by-elections was challenged at the High Court on 13 October 2020 by Women’s Academy for Leadership and Political Excellence (WALPE), Election Resource Centre (ERC) and six Harare and Marondera residents namely Ellah Tayengwa, Moud Chinyerere, Agnes Togarepi, Gracious Matsunga, David Gwanzura and Loice Gwangwara.
In the application filed by Tendai Biti of Zimbabwe Lawyers for Human Rights, WALPE, ERC, Tayengwa, Chinyerere, Togarepi, Matsunga, Gwanzura and Gwangwara, who cited Zimbabwe Electoral Commission (ZEC), President Emmerson Mnangagwa and Chiwenga as respondents, argued that the suspension was a breach of the Electoral Act and the Constitution as government should have held by-elections before 30 September 2020
to fill in vacancies in local authorities and in the National Assembly.
On Monday 24 May 2021, when Justice Musithu presided over the hearing and determination of WALPE, ERC and Tayengwa, Chinyerere, Togarepi, Matsunga, Gwanzura and Gwangwara’s application, he quizzed Olivia Zvedi and Tawanda Kanengoni, the lawyers representing President Mnangagwa, Chiwenga and ZEC on their bureaucratic foot-dragging in not lifting the indefinite suspension of by-elections.
The Judge interrogated the lawyers on why government was reluctant to hold by-elections considering that it had eased national lockdown regulations including opening schools and universities.
Justice Musithu also asked why government was averse to holding by-elections and yet other countries such as Tanzania and the United States of America had held polls recently.
The Judge also asked Zvedi and Kanengoni to give an indication on when the indefinite suspension of by-elections would be lifted.
In his submissions, Biti argued that the motive of imposing a ban on by-elections by government has nothing to do with curbing coronavirus but is a suppression of democracy. He said government had suspended the Constitution by not implementing its provisions such as holding by-elections whereas other countries in Africa and beyond had held
polls and emphasised that all constitutional obligations must be complied with diligently and without delay.
Zvedi argued that it is prudent for government to suspend by-elections in order to conquer the spread of coronavirus since the risk of a third wave of the pandemic was high. She also argued that section 86 of the Constitution provides for the limitation of rights hence
government had taken the right decision in suspending by-elections.
Kanengoni argued that holding by-elections at a time of the coronavirus pandemic would curtail effective participation of the electorate and said that ZEC could only conduct by-elections once President Mnangagwa issues a proclamation.