The lifting by the Zimbabwe Electoral Commission (ZEC) of its suspension of by-elections on public health grounds will be welcomed by a large number of Zimbabweans who, at present, do not have a Member of Parliament representing them in the House of Assembly or do not have a councillor protecting their interests on their local authority.
In a handful of cases, the vacancy has arisen from the death of the person elected in 2018. But most vacancies arose from the internecine warfare that has split the opposition and seen a large number of MPs and councillors who were nominated on the MDC-Alliance list by the MDC-T recalled.
The reasons are an internal matter of the parties involved, but the results are a problem for Zimbabwe. A lot of urban constituencies no longer have a sitting MP to represent their interests and the work of an MP goes far beyond formal debate in Parliament and voting in divisions.
A good MP is supposed to represent all their constituents, regardless of who voted for them, and raise issues with the appropriate authorities, answer queries and generally act as an interface between the constituency and central Government.
The situation in some urban councils is even worse.
Beitbridge Municipality, for example, has just three sitting councillors.
Harare has just over half its 46 councillors, technically enough to maintain a quorum at meetings, but a small pool to run the numerous committees that do most of the work in the council, especially as some for other reasons should not be sitting on their committee having being remanded on corruption-related charges.
We do not know how ZEC plans to run the by-elections with minimum risk of Covid-19 infection, but a great deal of knowledge and experience has been built up over the last few months to allow procedures to be put in place.
It may need extra polling stations with voters assigned to a particular station, it will need some sort of screening to protect polling officers when a voter has to lower their mask so that the ID is checked.
ZEC has already indicated that voters will be encouraged to bring their own pens.
But these are all practical difficulties that can be sorted out with the help of public health experts and with the goodwill of voters willing to exercise their constitutional rights to choose those who will represent them in Parliament or their local council, and in some cases on both.
A larger problem will face ZEC during the process of listing parties or electoral alliances and the nomination of candidates and there may even be need of legal changes to back administrative decisions by ZEC.
There are already reports that party names may be disputed. Here there are some precedents for sorting out who is entitled to which name, dating right back to independence and the late Rev Ndabaningi Sithole managing to register the Zanu name in contradiction to the Zanu PF registered by the party that had dumped him and which won large majorities.
But legal challenges may well be mounted.
We can, but hope that if they are, the High Court will find that these are matters of urgency and settle them very quickly so that the unrepresented voters do not have to face further delays in exercising their rights.
A second problem needs to be sorted out at the party registration stage with ZEC recording whether a name and symbol is for a political party or for an electoral pact of parties.
And if it is an electoral pact, the parties in the pact need to be recorded and each candidate having both their party and their pact membership recorded, even if the pact membership is the only detail on the actual ballot paper.
This double record will also help the Government when it comes to calculating and distributing shares in the budget allocation under the Political Parties Finance Act.
And that law may need an extra paragraph added to cope with distribution within electoral pacts.
These are relatively new problems. It must be remembered that there are no rules on who can form a political party and no laws governing how a party is run or even demanding that it has its own party constitution.
When the Supreme Court ruled on the leadership issue in the MDC-T it was not applying some law on parties, it was simply refereeing in an internal civil dispute within that party by applying the party’s own constitution, just as it might referee a dispute in the board of directors of a private company by applying that company’s articles of association.
Three legal changes now make party affiliation important.
The first is the right of a political party to recall any MP or senator who was elected on that party’s ticket or list in any election or by-election.
This makes changing party affiliation in practice impossible as a party will simply recall what it sees as a deserter.
The second change was the decision to give some funding from the national Budget to political parties based on how many National Assembly constituencies they won.
The final legal change, in the Constitution, was the advent of a majority of senators elected on a party list system, that is the number of senators from each province nominated by each party contesting the vote in that province being based on the proportion of votes that each party won in the constituency elections from that province for the National Assembly, with a similar provision for the non-constituency seats in the National Assembly. And by-elections can change those proportions during the life of a Parliament.
Considering that parties can unite, can split, can form pacts, can reform in a myriad of ways, it would probably now be useful for Parliament to put its collective legal mind to work and include a new section in the Electoral Act to cope more precisely with such matters.
And one urgently needed addition is a requirement that each party recognised by ZEC lodges some sort of document declaring that it is a body corporate that can sue and be sued, so it has a legal standing in court, and perhaps has to maintain at ZEC a list of office bearers, a bit like a company having to maintain an official list of directors and the top two or three officer bearers.
As we now see, in the end it is the residents of each constituency and each ward who suffer in these disputes on affiliation.
Now ZEC is planning by-elections, the voters can sort out the mess temporarily by choosing who they want, but cleaning up the rules will avoid this sort of mess in future.
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