Source: Electoral Act faces constitutional challenge – DailyNews Live
Gift Phiri 16 May 2017
HARARE – Law expert Alfred Mavedzenge is today expected to file a lawsuit
in the Constitutional Court (Con-Court) challenging the constitutionality
of the Electoral Act, arguing it gives government the power to veto
regulations promulgated by the Zimbabwe Electoral Commission (Zec).
The lawsuit seeks an order to declare Section 192 (6) of the Electoral Act
(Chapter 2:13) constitutionally invalid because it gives Justice minister
Emmerson Mnangagwa power to approve regulations or statutory instruments
developed by the Zimbabwe Electoral Commission (Zec).
Mnangagwa, also the vice president, is cited as the first respondent, Zec
chairperson Rita Makarau second and the Attorney-General Prince Machaya –
cited in his official capacity as the principal legal adviser to the
government – is the third.
The Electoral Act has been routinely criticised in recent years by
opposition political parties and civil libertarians, who say it lacks
punitive measures and sanctions to deal with political violence and
intimidation as well as ensure equitable access to unbiased media coverage
for all electoral contestants.
Mavedzenge, who argues the ability of Zec to prepare for elections in a
manner that is independent is undermined by Section 192 (6) of the
Electoral Act (Chapter 2:13) which gives the Justice minister sweeping
powers to interfere with Zec operations.
He also argues that Section 192 (6) of the Electoral Act (Chapter 2:13)
was ultra vires Section 2 (1), Section 85 (1), Section 67 (1), Section 235
(1) (a), Section 235 (2) and (3), Section 134 and Section 167 (3) as read
together with the other ancillary provisions of the Constitution.
“In preparing for these elections, the Constitution guarantees and
requires that second respondent (Zec chairperson) must conduct all the
preparations in a manner that is independent of control, direction and
interference from anyone,” Mavedzenge argued in his main application.
“The purpose of guaranteeing this independence to second respondent is to
ensure that she prepares and conducts the elections in a manner that
fulfils my constitutional right to a free and fair election.”
This comes as a coalition of opposition parties – collectively the
National Electoral Reform Agenda (Nera) – including all major opposition
groupings and protest movements, has said the United Nations, African
Union and the Southern African Development Community “must immediately
establish an independent, tripartite election management body to take over
the full functions of Zec”.
But Zanu PF legal secretary and Finance minister Patrick Chinamasa has
said Zec reserved the constitutional right to run elections in Zimbabwe.
Plaintiff Mavedzenge, an associate of Maja & Associates in Harare, said he
has a constitutional right to choose his government through a regular,
free and fair elections run by an independent body and said Zec was now
supposed to have begun the preparations for the 2018 elections.
Zimbabwe’s last electoral authority, which critics alleged was packed with
President Robert Mugabe’s supporters, took more than five weeks to
announce the results of a March 2008 presidential poll that gave
opposition leader Morgan Tsvangirai victory but not enough votes to assume
power.
Tsvangirai boycotted a subsequent run-off poll in June 2008, citing
serious violence against his supporters.
Mugabe, Zimbabwe’s ruler since independence from Britain in 1980, denies
that he has hung on to power by force or vote rigging.
Zimbabwe’s electoral reform process has stalled over constant squabbling,
with the next general election set to be held by August 2018.
Mavedzenge wants Mnangagwa to pay costs of the suit on a
legal-practitioner-scale.
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