via Senate Party-list Vacancies. 18 february 2015 by Veritas
BILL WATCH 6/2015
[18th February 2015]
Both Houses of Parliament Are Sitting This Week
This bulletin is intended to update readers on the following:
• the recent filling of the vacant ZANU-PF Mashonaland West party-list seat in the Senate;
• the current position regarding the still vacant ZANU-PF Manicaland party-list seat in the Senate;
• progress since nomination day towards holding the by-elections to fill the vacant National Assembly constituency seats for Mount Darwin West and Chirumanzu-Zibagwe, including ZEC’s updating of the voters rolls;
• a third vacancy in the National Assembly – the Wedza North constituency seat;
• the Speaker’s “no vacancy” ruling in respect of the Bikita West seat won by Hon Kereke in the harmonised elections of 31st July 2013.
Senate Party-list Vacancies
New Mashonaland West Senator sworn in
Hilda Bhobho, ZANU-PF’s nominee to fill the Mashonaland West vacancy in the Senate, became a Senator on 23rd January [Bill Watch 3/2015 of 3rd February gave the details of ZEC’s official announcement in the Government Gazette]. Ms Bhobho was sworn in at the start of the Senate’s sitting on Tuesday 3rd February.
Manicaland vacancy
ZEC has not yet announced a nomination from ZANU-PF to replace the late Kumbirai Kangai, who died on 24th August 2013 before taking up his seat. The nominee must be a man and otherwise duly qualified for the seat, and his nomination must be notified in the Government Gazette to allow for objections, as required by section 45F of the Electoral Act [The party’s original nomination, of former Reserve Bank Governor Gideon Gono, was rejected by the Zimbabwe Electoral Commission because he was not lawfully registered as a voter in a Manicaland constituency as required by section 45D(1)(d) of the Electoral Act. This qualification for a party-list Senator is in addition to the apparently exhaustive list of qualifications laid down by the Constitution in section 121(1).]
Mount Darwin West & Chirumanzu-Zibagwe By-elections
Note on MDC-T Constitutional Court challenging the by-elections: On 13th February legal practitioners for the President and the Minister of Justice, Legal and Parliamentary Affairs filed their notices of opposition to the MDC-T’s Constitutional Court application to stop the by-elections.
ZEC voters rolls updating exercise completed
Having overcome its previous hesitation about exercising its constitutional mandate to register voters and maintain the voters roll until the enactment of appropriate amendments to the Electoral Act, the Zimbabwe Electoral Commission [ZEC] has conducted an exercise to update the existing voters rolls for the Mount Darwin West and Chirumanzu-Zibagwe constituencies, and Chinhoyi Municipality Ward 15, in all of which by-elections are scheduled for Friday 27th March.
There were 49 registration centres in the Mount Darwin West constituency, and 83 registration centres and 3 mobile registration teams in Chirumanzu-Zibagwe. At the by-elections ZEC intends using the existing voters rolls [as prepared for the harmonised elections of 31st July, i.e., showing voters registered as at 10th July 2013] as supplemented by ZEC during the present exercise. The main aim of the exercise was to register applicants never before registered, including persons who had turned 18 since 10th July 2013, but it also allowed for inspection of the voters rolls, correction of errors, and transfer of voters from other constituencies where appropriate.
The exercise ended on Tuesday 10th February, i.e., 12 days after the nomination day for the two National Assembly by-elections and accordingly the last day on which would-be voters could register to vote in those by-elections [Electoral Act, section 26A].
Accreditation of observers for these by-elections
ZEC last week gave public notice inviting interested persons and organisations to apply for registration as observers at the by-elections. Local organisations and eminent persons should apply through the ZEC Provincial Office in Mashonaland Central and/or Midlands, as appropriate. Independent Constitutional Commissions and other State institutions, and foreign organisations, eminent persons and individuals, should apply to the Chief Elections Officer at ZEC headquarters in Harare. The statutory application fees are set out in the public notice, which also advises all applicants to acquaint themselves with the Accreditation of Observers Regulations, SI 89/2013. [Copies of the ZEC notice and SI 89/2013 are available from Veritas at the addresses given at the end of this bulletin.]
Deadline for applications for accreditation Applications for accreditation must be made no later than Monday 23rd March [Electoral Act, section 40I(1) makes the fourth day before polling day the last day for accreditation applications].
27th March polling day not in conformity with Constitution and Electoral Act
In both by-elections polling is scheduled for Friday 27th March, the date fixed by the President in his proclamation ordering the by-elections [SI 3/2015, as covered in Bill Watch 3/2015 of 3rd February].
Comment: Section 158 of the Constitution provides that polling in by-elections “must take place within ninety days after the vacancies occurred” [this is reiterated in section 39(2) proviso (ii) of the Electoral Act, as inserted by the Electoral Amendment Act, No. 6/2014]. This deadline has long since passed in the case of the Mount Darwin West by-election because that vacancy arose in September 2013 as a result of Mrs Mujuru’s appointment as Vice-President. No one, it seems, realised at the time that upon being appointed Vice-President Mrs Mujuru automatically vacated her parliamentary seat in terms of section 129(1)(c) of the Constitution [see Constitution Watch 2/2015 of 23rd January]. But an effort should have been made to comply with the deadline in the case of Chirumanzu-Zibagwe, where the vacancy occurred on 9th December 2013 and the 90th day after that will be 19th March.
It must be said, however, that a late poll will not by itself invalidate a by-election result – because that would be a nonsensical outcome, only making matters worse by leaving a vacancy unfilled until the next harmonised election.
The moral is that officials in Parliament and Government need to brush up on what the Constitution and the Electoral Act say about by-elections; they must review their mechanisms for notification of and processing of documentation for Parliamentary vacancies, and must ensure that the 90-day deadline is not ignored again.
New National Assembly Vacancy in Wedza North
This vacancy dates from 15th January, when the sudden death occurred of the incumbent ZANU-PF MP, Hon S.M. Musanhu, Deputy Minister of Environment, Water and Climate [noted in Bill Watch 3/2015 of 3rd February]. The President’s notice ordering a by-election in terms of section 39 of the Electoral Act has not yet been gazetted. It is hoped that, when it is gazetted, it will fix a polling day that complies with section 158 of the Constitution, i.e., is no later than 15th April, which is the 90th day after the vacancy occurred [see preceding comment].
A Vacancy That Never Was: Speaker Rules Dr Kereke Still Bikita West MP
In the National Assembly on 5th February, MDC-T Chief Whip Hon Gonese raised a point of order which in effect questioned whether Hon Kereke had vacated his Bikita West constituency seat by operation of section 129(1)(l) of the Constitution. This is a new provision to the effect that an MP who was not a member of a political party when elected automatically vacates his or her seat on later becoming a member of a political party. Mr Gonese referred to reports claiming that Hon Kereke had recently been readmitted as a member of ZANU-PF and had therefore ceased to be an Independent MP.
In his ruling on 5th February the Speaker said that, having investigated the matter, he was satisfied that Hon Kereke had at all relevant times been a ZANU-PF member, had been elected on a ZANU-PF ticket, and had never ceased to be a member of the party. He referred to the fact that Hon Kereke’s purported dismissal from the party in 2013 by Hon Didymus Mutasa, then its Secretary-General, had been disavowed by the party in the October 2013 Constitutional Court proceedings that ended in Hon Kereke’s membership of Parliament being confirmed by the Constitutional Court. [Reminder: In the 31st July 2013 Parliamentary elections, two candidates for the Bikita West seat had ZANU-PF endorsed nomination papers, Dr Kereke and another. Dr Kereke won the poll and was declared elected, resulting in controversy within the party. Hon Mutasa, claiming that Dr Kereke had been expelled from ZANU-PF, wrote to the Speaker on behalf of the party, invoking section 129(1)(k) of the Constitution – the provision under which the holder of a seat won on a party ticket loses the seat on ceasing to be a party member. Dr Kereke immediately went to the Constitutional Court, where a court-endorsed settlement confirmed him as a ZANU-PF member and the party’s MP for Bikita West.]
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