News / National
'Gono's Senatorial seat not guaranteed'
31 Jul 2014 at 07:32hrs | Views
Former Reserve Bank of Zimbabwe Governor Dr Gideon Gono's expected elevation to Senator for Manicaland is not assured amid reports it may be ultra vires provisions of the Constitution which require that senators be elected under a party-list system, legal experts said yesterday.
The Politburo approved recommendations by the party's Manicaland provincial executive to have Dr Gono replace the late national hero Kumbirai Kangai, who died in August last year.
Dr Gono could not take up the seat because the Presidential Powers (Temporary Measures) Act that gave legal effect to fill vacant parliamentary seats had expired after the six-month mandatory lifespan.
But legal experts said the filling of a senatorial vacancy by a person who was not on the party list would defeat the requirement that Senators are elected under a party system.
"The filling of the vacancy by a person who does not appear on the party list may be in violation of the Constitution," said a legal expert who refused to named. If the party were to nominate a person other than the one who is the next qualified one on the party list to fill the vacancy, objections might be raised against that nomination on the grounds that the electoral law intended that the vacancy be filled by the next person on the party list who is qualified to do so."
The procedure for the filling of the vacancy will be provided for in the Electoral Amendment Bill in line with the provisions of the new Constitution.
The Bill, which has since been passed in Parliament and presented to President Mugabe for assent, provides that persons to be nominated for such a post should have been on the party list.
The President is still to assent to the Bill, more so Parliament has adjourned to later next month when President Mugabe will open the Second Session of the Eighth Parliament.
During the general elections, Zanu-PF was allocated four of the Manicaland Province's six proportional representation seats in the Senate. The four on the party list who took the seats were Monica Mutsvangwa, Kangai, Judith Mawire and Mike Nyambuya.
The remaining two on the party list who failed to make it after two seats went to MDC-T were Shadreck Chipanga and Evelyn Mtetwa.
The Electoral Amendment Bill seeks to amend section 39 of the Electoral Act to provide for the filling of such vacancies in the Senate.
The Bill adds six new subsections (3-8) to section 39 of the Act, with subsection 4 requiring that the Zimbabwe Electoral Commission invites a party to submit the name of a qualified person to fill the vacancy.
For that purpose, the party would lodge with zec a nomination paper countersigned by any two of the designated national office-bearers of the party.
After scrutinising the nomination paper, zec is required in terms of subsection (5) and (6) to publish the nomination in the Gazette and afford any person who is a voter to lodge any written objection to the nomination.
Zec will be required in terms of subsection (7) to consider the objections and accept or reject it. If zec accepts the objection, then the party will be required to submit a fresh nomination.
But legal experts said the proposed subsection (3) to (8) may be open to different interpretations.
"There is no provision in the subsections suggesting that the party list is to be discarded for the purpose of filling the vacancy," said another law expert.
"Neither is it explicitly stated that the party is at liberty to nominate a person who was not on the party list. The requirement that the party must submit a nomination paper to zec is not in itself incompatible with the use of the party list.
"Indeed, regardless of whether a party list is used, a nomination process is desirable since the person who is to fill the vacancy must be qualified to do so at the time of filling the vacancy and not at the time of the general election."
The lawyer said it was the party concerned which was in a position to certify that the person being nominated was still a member of the party as contemplated by section 157 (1) of the Constitution.
"The words in the proposed subsection (4)(b) which require zec to invite the political party in writing to submit the name of a qualified person, are directing that the person being nominated must be a member of the party and the same gender as the previous holder of the seat, in addition to the other requirements such as being on the voters roll of the constituency in the province concerned and not being mentally disordered.
The law expert gave another scenario where he said it was also necessary to consider the proposed subsection (6) which requires that when zec notifies the nomination in the Gazette, it must give the "particulars of the party-list candidate".
"The subsection envisages that the person whose name has been submitted is from the party list," he said. "The draftsman must, therefore, have been contemplating that the party would nominate the candidate from the party list.
"If the intention had been otherwise, the provision would have read ‘if no objection to the candidate has been received'.
"It would not have been necessary to refer to the party-list. Subsection (7) also states that zec must accept the nominee ‘if no objection to the party-list candidate' has been received, again implying that the nominee is from the party list."
Subsection 6 and 7 are in conformity with section 120 (2) of the Constitution which requires that Senators be elected under a party-list system of proportional representation.
Zec chairperson Justice Rita Makarau is on record saying the electoral body was waiting for the passage of the Bill before they could confirm Dr Gono to replace Kangai.
Section 15 of the Bill empowers a party holding a seat in respect of party-list members to nominate a "qualified" person to fill a vacancy that might have occurred.
The Politburo approved recommendations by the party's Manicaland provincial executive to have Dr Gono replace the late national hero Kumbirai Kangai, who died in August last year.
Dr Gono could not take up the seat because the Presidential Powers (Temporary Measures) Act that gave legal effect to fill vacant parliamentary seats had expired after the six-month mandatory lifespan.
But legal experts said the filling of a senatorial vacancy by a person who was not on the party list would defeat the requirement that Senators are elected under a party system.
"The filling of the vacancy by a person who does not appear on the party list may be in violation of the Constitution," said a legal expert who refused to named. If the party were to nominate a person other than the one who is the next qualified one on the party list to fill the vacancy, objections might be raised against that nomination on the grounds that the electoral law intended that the vacancy be filled by the next person on the party list who is qualified to do so."
The procedure for the filling of the vacancy will be provided for in the Electoral Amendment Bill in line with the provisions of the new Constitution.
The Bill, which has since been passed in Parliament and presented to President Mugabe for assent, provides that persons to be nominated for such a post should have been on the party list.
The President is still to assent to the Bill, more so Parliament has adjourned to later next month when President Mugabe will open the Second Session of the Eighth Parliament.
During the general elections, Zanu-PF was allocated four of the Manicaland Province's six proportional representation seats in the Senate. The four on the party list who took the seats were Monica Mutsvangwa, Kangai, Judith Mawire and Mike Nyambuya.
The remaining two on the party list who failed to make it after two seats went to MDC-T were Shadreck Chipanga and Evelyn Mtetwa.
The Electoral Amendment Bill seeks to amend section 39 of the Electoral Act to provide for the filling of such vacancies in the Senate.
The Bill adds six new subsections (3-8) to section 39 of the Act, with subsection 4 requiring that the Zimbabwe Electoral Commission invites a party to submit the name of a qualified person to fill the vacancy.
For that purpose, the party would lodge with zec a nomination paper countersigned by any two of the designated national office-bearers of the party.
After scrutinising the nomination paper, zec is required in terms of subsection (5) and (6) to publish the nomination in the Gazette and afford any person who is a voter to lodge any written objection to the nomination.
Zec will be required in terms of subsection (7) to consider the objections and accept or reject it. If zec accepts the objection, then the party will be required to submit a fresh nomination.
But legal experts said the proposed subsection (3) to (8) may be open to different interpretations.
"There is no provision in the subsections suggesting that the party list is to be discarded for the purpose of filling the vacancy," said another law expert.
"Neither is it explicitly stated that the party is at liberty to nominate a person who was not on the party list. The requirement that the party must submit a nomination paper to zec is not in itself incompatible with the use of the party list.
"Indeed, regardless of whether a party list is used, a nomination process is desirable since the person who is to fill the vacancy must be qualified to do so at the time of filling the vacancy and not at the time of the general election."
The lawyer said it was the party concerned which was in a position to certify that the person being nominated was still a member of the party as contemplated by section 157 (1) of the Constitution.
"The words in the proposed subsection (4)(b) which require zec to invite the political party in writing to submit the name of a qualified person, are directing that the person being nominated must be a member of the party and the same gender as the previous holder of the seat, in addition to the other requirements such as being on the voters roll of the constituency in the province concerned and not being mentally disordered.
The law expert gave another scenario where he said it was also necessary to consider the proposed subsection (6) which requires that when zec notifies the nomination in the Gazette, it must give the "particulars of the party-list candidate".
"The subsection envisages that the person whose name has been submitted is from the party list," he said. "The draftsman must, therefore, have been contemplating that the party would nominate the candidate from the party list.
"If the intention had been otherwise, the provision would have read ‘if no objection to the candidate has been received'.
"It would not have been necessary to refer to the party-list. Subsection (7) also states that zec must accept the nominee ‘if no objection to the party-list candidate' has been received, again implying that the nominee is from the party list."
Subsection 6 and 7 are in conformity with section 120 (2) of the Constitution which requires that Senators be elected under a party-list system of proportional representation.
Zec chairperson Justice Rita Makarau is on record saying the electoral body was waiting for the passage of the Bill before they could confirm Dr Gono to replace Kangai.
Section 15 of the Bill empowers a party holding a seat in respect of party-list members to nominate a "qualified" person to fill a vacancy that might have occurred.
Source - The Herald
