News / Local
Chiwenga ban stirs confusion
04 Oct 2020 at 10:19hrs | Views
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.
Zimbabwe had by Friday recorded 7 858 cases with 228 deaths while South Africa had a total of 677 833 cases with 16 909 deaths.
"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.
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.
Zimbabwe had by Friday recorded 7 858 cases with 228 deaths while South Africa had a total of 677 833 cases with 16 909 deaths.
"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.
Source - the standard
