'Zimbabwe stares at another disputed poll in 2023'

SINCE the advent of COVID-19 in March last year, Zimbabwe suspended by-elections despite that several parliamentary and council seats fell vacant after MPs affiliated to the MDC Alliance led by Nelson Chamisa were recalled by the MDC-T led by Douglas Mwonzora.

Election Resource Centre (ERC) chairperson Trust Maanda (TM) said failure to hold by-elections under the guise of the COVID-19 pandemic was inconsistent with section 158(3) of the Constitution.

The country has clocked more than 90 days without filling the vacant seats, which Maanda says has deprived Zimbabweans of representation in Parliament and councils.

Maanda, a prominent lawyer, speaks to NewsDay (ND) senior reporter Moses Matenga about the political environment before the 2023 elections and whether the elections are feasible under the current circumstances.

ND: Zimbabwe suspended by-elections in 2020, but countries such as Ethiopia proceeded to hold elections despite the COVID-19. What is ERC's position on the suspension of poll?

TM: The regulations that suspend by-elections are invalid because they are inconsistent with the Constitution.

It is trite that the Constitution is the supreme law of the country and any law that is inconsistent with it is invalid to the extent of that inconsistency.

When considering a piece of legislation or practice, one must assess whether it is consistent with the Constitution.

This is the test that must be applied to the COVID-19 regulations.

In this regard, the COVID-19 regulations are inconsistent with section 158(3) of the Constitution, which provides that by-elections "must take place within 90 days after the vacancies occurred".

Section 158(3) is a mandatory provision. It represents what "must" be done.

The COVID-19 regulations are inconsistent with this requirement because they suspend by-elections and change the calculation of time within which by-elections should be held.

Additionally, the COVID-19 regulations suspending by-election usurp the authority of the Zimbabwe Electoral Commission (Zec) to administer elections.

Zec is the constitutional body mandated to administer elections and the Health minister (VicePresident Constantino Chiwenga) through the suspension of by-elections infringed on the rights of the Commission.

The inconsistencies are plain. For that reason, the COVID-19 regulations fall short of the requirements of section 2 of the Constitution. They are invalid to the extent of that inconsistency.

ND: Elections are due in 2023, what is your assessment of the situation in terms of reforms?
TM: Three years since the 2018 elections and two years to the next, a promise of expedited reforms continues to be ignored and is now seemingly beyond reach.
While the COVID-19 pandemic has brought new challenges associated with outstanding electoral reforms, the issue of reforms remains unaddressed.
The post-2018 election environment has been dominated by the non-implementation of key reforms, most of which have been repeatedly raised by election observer groups in previous elections.
It should be noted that Zec has taken a piecemeal approach in recommending proposals to the alignment of electoral laws, policies and practices with the Constitution and international best practices.
The failure to significantly revise key laws or to address the partisan conduct of the State security, traditional leaders and the media undercuts free elections.

ND: Judging from the current situation in the lead up to the 2023 elections, are we likely to have free and fair polls?
TM: Electoral reforms have not been implemented. Political reforms have been ignored since 2018.
Free, fair and credible elections are premised on constitutionalism, transparency, accountability, freedoms and sound reforms.
The 2023 harmonised elections will be marred by the same weak policies that haunted the 2018 elections.
Electoral reforms, if not addressed, will likely result in the same disputes that arose and were witnessed in the 2018 harmonised elections.

ND: What is the ERC doing to ensure a credible poll and that citizens have sufficient information on electoral education?
TM: ERC contributes towards lobbying for legislative and policy reforms that have a bearing on elections through information dissemination, litigation and high-level stakeholder engagement by meeting with parliamentary portfolio committees, chapter 12 commissions, and political parties to discuss how they can play their oversight role towards strengthening future elections in
Zimbabwe.
ERC is also involved in various campaigns on different platforms to encourage citizens to register to vote, to call for electoral reforms, and to protect the vote.
All these campaigns are run at different intervals of the election cycle to ensure that citizens call for better elections in Zimbabwe.
While electoral activities, particularly the by-elections, have been indefinitely suspended, ERC took the opportunity to increase citizens' access to information, particularly working with organisations that target the youth and the disabled community, who are often left out in mainstream electoral programming.

ND: Your thoughts on the recent constitutional amendments?
TM: The Constitutional Amendment (No 2) Act was an amendment that went against the will of the people.
To maintain national cohesion, government must have ensured that the public consultations conducted in 2020 were given due consideration.
The Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs reported in July 2020 that "the major issue that the public expressed was the need to urgently align laws and full implementation of the Constitution rather than rush to amend the Constitution".
The committee urged the Executive to prioritise the realignment of laws to the Constitution and its full implementation. However, the report and recommendations were ignored.

ND: We have seen ERC encouraging citizens to register to vote. What has been the response?
TM: Democracy in Zimbabwe is underpinned by-elections whereby citizens elect their representatives in governance at the local and national levels.
Therefore, for democracy to work in Zimbabwe, citizen participation is integral.
The ERC has always encouraged citizens to register to vote (if and when voter registration is open), hence the drive to encourage citizens to register to vote is based on the work the ERC has been doing since 2010.
The 2023 harmonised elections are just around the corner and there are impending by-elections. While we call for reforms, voter registration has been the centre of rallying citizens as one cannot vote without having registered to vote first.
The #RegisterToVoteZW campaign aims to encourage youths to register to vote, participate in the impending by-elections, delimitation and in the 2023 harmonised elections.
The campaign has culminated into a nationwide, citizen-led campaign with citizens in the diaspora calling for the diaspora vote and encouraging residents in Zimbabwe to register to vote.