The ruling Zanu PF is continuing with primary elections to choose candidates to fill vacant parliamentary and local government seats despite the suspension of by-elections that were set for December 5 by Vice-President Constantino Chiwenga.
Chiwenga on Friday ordered that holding by-elections will
remain suspended “for the duration of the period of declaration of Covid-19 as
a formidable epidemic disease”.
The ban, however, did not stop the ruling party’s own
internal electoral processes, fuelling confusion over the VP’s intervention
that has been described as illegal by lawyers.
VP Chiwenga doubles up as Health and Child Care minister,
but his decision to suspend electoral processes, citing Covid-19 is largely
viewed as influenced more by politics than science.
Zanu PF will today hold primary elections in President
Emmerson Mnangagwa’s hometown of Kwekwe, the party’s Midlands spokesperson
Cornelius Mupereri confirmed.
“We announced that the primary elections will be held
(today),” Mupereri said. “That is our position and nothing has changed.”
Mnangagwa’s party is accused of using Covid-19 to stifle
democracy and legal experts told The Standard that Chiwenga’s ban was part of
efforts to close the democratic space.
Trust Maanda, the Election Resource Centre chairman, said
the suspension of by-elections by Chiwenga was unconstitutional.
“It is not only illegal, but unconstitutional because
elections are timed in terms of the provisions of the constitution and there
can be no regulation particularly by a single minister that can overturn or
usurp the authority of the constitutional provision,” Maanda said.
“You cannot postpone democracy and provisions of the
constitution unless you amend that constitution.
“Power to govern is derived from the people through
constitutional means and the constitution provides for how people must be
governed and anything outside that is illegal and also affects one of the three
arms of the state, which is Parliament, and there will be a crisis.”
Douglas Coltart, a human rights lawyer, said Chiwenga’s ban
delivered through a statutory instrument cannot withstand legal scrutiny.
“Firstly, it effectively suspends section 158 sub-section 3
of the constitution, which stipulates the time within which by-elections need
to be conducted. “A statutory instrument has no power to suspend a
constitution,” Coltart said.
“The minister of Health has no authority to determine the
conduct of elections. “That is determined by the Zimbabwe Electoral Commission
(Zec) and the Electoral Act, which is administered by the Justice minister, not
the Health minister.
“So he has no power to do what he has done.” Zec last month
said by-elections to replace over 30 MDC Alliance legislators and over 100
councillors controversially recalled by the rival MDC-T would be held on
December 5.
Constitutional law expert Arnold Tsunga said Chiwenga’s
decision to reverse Zec’s plans raised a lot of questions.
“The decision is not supported by facts and looks
irrational and arbitrary,” Tsunga said. “Unfortunately it is a type of decision
that makes strong the arguments of those, who argue that Zimbabwe is using
Covid-19 to stifle enjoyment of fundamental rights, including political rights
that are constitutionally guaranteed.
“You can’t in one breath open schools and in other close
elections.” The veteran lawyer said it was now clear that Mnangagwa was using
Covid-19 to launch an assault on democracy in Zimbabwe.
Tsunga said the number of Covid-19 cases locally did not
justify the suspension of elections.
“South Africa has not suspended elections, but Zimbabwe
has. Totally different attitudes towards the development of democracy right
there,” Tsunga added. “Hopefully, someone will test the constitutionality of
this statutory instrument that looks totally unconstitutional.
“It is irrational and not proportionate to the dangers
posed by Covid-19 as many countries have been able to hold Covid-19-compliant
elections.”
Justice minister Ziyambi Ziyambi yesterday insisted that
Chiwenga’s order was above board.
“They are lost,” Ziyambi said referring to the lawyers. “(Chiwenga)
is not controlling conduct of by-elections, but he is saying gatherings at this
stage are not yet necessary.
“If he had not done that, the law says, especially section
158, if a vacancy exists, a by-election must be held within 90 days.
“So he declared a state of pandemic and suspended all
activities so the effect of that is to say, because I have suspended
everything, stop counting the 90 days until the state of public pandemic is
over, then you start counting as if the vacancy occurred on that particular
day.”
The government has been relaxing lockdown restrictions to
control the spread of Covid-19 as new cases continue to decline.
Inter-city travel is now allowed and schools are reopening
in a phased manner with the last classes resuming on November 9. Standard
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