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Election petitions and the filling of vacant parliamentary seats - a legal opinion
Prisca Mukwengi, Advocacy Officer
Zimbabwe Election Support Network (ZESN)
January 21, 2003

The constituencies which had results nullified by the High Court by virtue of having been conducted within circumstances in which no-one would cast their votes freely should undergo the same process which will eventuate results which are not controversial i.e., a by-election. The fact that the results were nullified means that those elected into parliament by those results cease to be members of parliament because the results that were deemed to have elected them were nullified. This means that the seat falls vacant.

Section 136(3)(c)(i) of the Electoral Act provides that at the conclusion of the trial of an election petition and upon reaching the decision that the respondent was not duly elected and that no other person was duly elected is entitled to be declared duly elected the seat of the respondent shall forthwith become vacant.

Therefore it follows that all the seats which were successfully contested and the results nullified should become vacant.

Section 38 of The Electoral Act provides that a vacancy which exists otherwise than by reason of a dissolution of Parliament shall subject to this section, be notified to the President in writing by the Speaker.

If the Speaker has reason to believe that a vacancy exists in the Membership of Parliament based on the information in writing of two persons, one of whom shall be the Minister and the other a Member of Parliament he shall publish a notice in the Gazette declaring that in his opinion the vacancy exists.

An application can be made at the High Court at this stage within 14 days for an order declaring that the person to whom the notice relate has not ceased to be a member of Parliament after which the Registrar of the High Court will notify the Speaker, who will in turn shall notify the President.

The President shall within a period of 14 days of the notice issue a proclamation ordering a new election to fill the vacancy in the same manner.

This has not happened with the following constituencies whose results were nullified by the High Court but immediately after the death of Learnmore Jongwe the MDC Spokesperson and Kuwadzana member of Parliament the procedures were implemented hastily. The following are the constituencies whose results were nullified.

• Buhera North
• Hurungwe East
• Mutoko South
• Chiredzi North
• Gokwe North
• Gokwe South

By virtue of the petition having gone through a judicial institution, the appeal against will be in the Supreme Court after which the same process prevails if the results are nullified.

It has to be established whether the High Court certified its determination to the Speaker of Parliament on the petitions who will in turn notify the President that a vacancy occurs and the cause of such vacancy.

The MDC could invoke the provisions of the Act and the Constitution to force the Speaker to recognise them. If he does not act accordingly by notifying the President within time then, the Speaker has to be found liable against the Electoral Act. Nothing specific is provided for circumstances such as this but the non-performance of the Speaker is in direct contravention of the Act, if he was notified by the High of the determination of the petition.

Constitutionally, if the Speaker was notified but did no act on it, then the Speaker’s non-performance can be said to demean constitutional stipulations, which specify that the 120 constituencies of Zimbabwe shall have elected representatives. Since the persons seating in Parliament ceased to be members representing those constituencies when the seats fell vacant after a successful petition then the constitutional right of citizens to elect a representative of their choice is being violated. A constitutional case might be made on the aspect of the non-elected members whose presence is ultra-vires the Constitution.

The MDC and civic society including NGO’s can mobilise parliamentarians to make a notice to the Speaker so that debate on the issue ensues and to press upon him to recognise the provisions of the Act.

MPs and electoral institutions may be lobbied so as to make notice to the Speaker declaring the seats vacant.

The Office of the Ombudsman, which deals with complaints against government officials or institutions, can be approached with the complaint against the Speaker of Parliament.

One would have thought after successfully petitioning against the results of the above seats the MDC would have acted on the outcome of the petitions unless the petitions were merely on principle to score a political point or to nurture the romantic notion of a legal suit.

For more information contact:
Prisca Mukwengi
prisca@zesn.org.zw

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