ZEC sued over by-election dates

The Zimbabwe Electoral Commission (ZEC) breached the constitution by failing to hold by-elections when they became due, a group of citizens joined by the Elections Resources Centre (ERC) said in a lawsuit filed this week.

Precious Charuma and others have asked the Harare High Court to order ZEC to announce by-election dates for all vacant municipal and parliamentary seats.

The High Court application came as the Zimbabwe Human Rights Commission (ZHRC) on Wednesday called on the government to "observe and respect the democratic and political rights of its people as enshrined in the constitution."

Health minister Constantino Chiwenga two weeks ago amended Covid-19 regulations to postpone the holding of by-elections which ZEC had announced would be held by December 5.

Citing public health concerns over the coronavirus, Chiwenga, who is also the Vice President, said the election ban would remain "for the duration of the period of declaration of Covid-19 as a formidable epidemic disease."

Chiwenga's decree was fiercely resisted by the opposition MDC Alliance which was hoping to use the by-elections to quickly get its elected representatives controversially recalled by a rival faction returned to parliament and municipalities.

The MDC-T led by Thokozani Khupe has caused the recalls of 32 MDC Alliance MPs and senators, and 86 councillors including four mayors.

In a High Court application, Charuma and the ERC cited ZEC, President Emmerson Mnangagwa and Chiwenga as first, second and third respondents respectively.

"The first and second respondents breached Section 158 (2) and Section 159 of the Constitution when they failed to conduct by-elections in the country before September 30, 2020," they state.

"The first and second respondents' decision not to hold by-elections before September 30 was in breach of the Electoral Act and Sections 258 and 259 of the Constitution.

"They also breached Section 39 of the Electoral Act in the event of the second respondent and Section 121A in the case of first respondent."

The litigants want ZEC and Mnangagwa to be found in breach of the constitution and to be ordered to immediately take steps to announce by-election dates.

The ZHRC added its voice to the disenchantment saying the government's actions muzzled its own citizens.

"While restrictions maybe be necessary in a democratic society, they must respect pluralism, broadmindedness and tolerance. Measures should not be indefinite," the commission said.

"Pandemics should not be used as an opportunity for states to unleash absolute executive powers. Such powers should be exercised fairly and reasonably and should avoid taking shortcuts which in the long run may tend to persist and become permanent features eroding or diminishing democratic principles and values."

MDC Alliance led by Nelson Chamisa argued that the suspension of elections was an assault on democracy.

"The suspension of by-elections in circumstances where Zanu-PF and its proxies continue to recall lawfully elected MPs and councillors is a vicious assault on the will of the people and the greatest threat to our democracy. This is fascism. Democracy is dead," the MDC Alliance said in a statement soon after the suspension of elections was announced.

The turmoil in the MDC camps followed the death of former leader Morgan Tsvangirai in February 2018 sparking intense jockeying to replace him between his three deputies – Khupe, Chamisa and Elias Mudzuri.

Chamisa engineered a vote of the MDC-T's National Council which gave him interim leadership, but Khupe boycotted.

Chamisa led a coalition of parties into elections in July that year, while Khupe kept the MDC-T name and ran as a rival.

The MDC Alliance secured over 100 seats in parliament while the MDC-T got two through proportional representation. Chamisa ran President Emmerson Mnangagwa close with over 2.1 million votes compared to Khupe's 45,000.

The Supreme Court in March this year ruled that Tsvangirai broke the MDC-T constitution when he appointed Mudzuri and Chamisa as his co-deputies, and therefore the MDC-T had only one vice president at the time of Tsvangirai's death – Khupe – who should have gone on to become interim leader before an extraordinary congress to elect new leadership.

The court also directed that Khupe should take interim charge of the MDC-T and call an extraordinary congress to be held within three months. The ruling also restored party structures that existed at the last congress in 2014.

Chamisa says his party is the MDC Alliance and not the MDC-T, but this has not stopped Khupe from seeking to take control of the Alliance, including appropriating its elected officials, offices and finances due to the party from the government based on its electoral performance.