[Bill-Watch] Bill Watch 6/2015 of 18th February [Updates on Parliamentary Vacancies, By-elections and Voters Rolls]

[Veritas Bill Watch]

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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