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New election for Speaker of House of Assembly - Bill Watch 9/2011
Veritas
March 14, 2011

The House of Assembly has adjourned to Tuesday 22nd March

The Senate has adjourned to Tuesday 29th March

Supreme Court Nullifies Election of Speaker

On 10th March, the Supreme Court set aside the August 2008 election of Mr Lovemore Moyo as Speaker of the House of Assembly. It has taken the court system an inordinate time to reach a final decision on this case of great public importance.

Background: Mr Moyo, the MDC-T candidate, was elected Speaker on 25th August 2008. A case to nullify the election was brought against the Clerk of Parliament, who had conducted the election, and against Mr Moyo, as the person declared elected. The case was brought in September 2008 by Jonathan Moyo MP, then an Independent and now ZANU-PF, and 3 other MP’s -Moses Mzila Ndlovu [now Minister of State in the Organ for National Healing], Patrick Dube and Siyabonga Ncube - all from the then MDC-M. Their complaint was that the election had not been conducted by secret ballot, as required by House of Assembly Standing Orders, because some MDC-T MPs had shown their unfolded marked ballot papers to colleagues before depositing them in the ballot box. The case was heard in the High Court by Justice Patel in July 2009 and he handed down his judgment on 26th January 2010, dismissing the case. The plaintiffs immediately lodged an appeal to the Supreme Court. The case was heard in the Supreme Court on 21st September 2010 and judgement was given on 10th March 2011.

The Judgment: The Supreme Court upheld the appeal by Jonathan Moyo and the other MPs against Justice Patel’s dismissal of their case. The judgment has the effect of nullifying Mr Moyo’s election as Speaker. The five judges of appeal were split 3-2, with the majority accepting the appellants’ argument that the election had not been conducted by secret ballot as required by House Standing Orders. The dissenting opinions were that although electors had a right to keep their vote secret it was also within their rights to tell others if they so wished; besides, the evidence established that a mere 6 out of 208 MPs voting had displayed their unfolded marked ballot papers before depositing them in the ballot box and, as the vote was 110 to 98, these six votes would not have altered the result. [Chief Justice Chidyausiku and Justices of Appeal Ziyambi and Garwe made up the majority; Deputy Chief Justice Malaba and Justice of Appeal Sandura dissented and would have dismissed the appeal.]

Implications for Parliament

Effect of Vacancy - when there is a vacancy in the office of Speaker the House of Assembly must not transact any other business until a new Speaker has been elected [section 39(10); House of Assembly Standing Order 16(1)].

Position of Deputy Speaker not affected Mrs Nomalanga.Khumalo’s election to the post of Deputy-Speaker took place immediately after the Speaker’s election but has not been the subject of a court case, so she remains in office although she cannot act as Speaker in the House while the position of Speaker is vacant.

Electing a New Speaker - when the House of Assembly returns on Tuesday 22nd March - or earlier, if it is specially recalled - its first order of business must be to elect a new Speaker. The election will be conducted by the Clerk of Parliament, as was the election the Supreme Court has just upset.

Eligibility for Election - those eligible for election are persons who are or have been members of the House of Assembly and are not members of the Cabinet, Ministers or Deputy Ministers. Mr Lovemore Moyo is free to stand again for re-election and has the support of MDC-T to do so. The other candidate in August 2008 was Paul Themba Nyathi, a former MP put forward by the then MDC-M, and it has been rumoured he may stand again. A suggestion has been made that a former Speaker, Mr Cyril Ndebele, who served the House with wisdom, experience and impartiality, should be but forward.

Party Voting Strengths in House of Assembly - On paper party voting strengths in the House are as follows: ZANU-PF 96; MDC-T 96 [plus or minus – see note]; MDC 8.

Note the ZANU-PF count includes Jonathan Moyo who stood for Parliament as an independent, but rejoined ZANU-PF in late 2009.

Note the MDC-T count includes two MPs who are at present either in police custody or in remand prison on criminal charges – and this number may go up or down by 22nd March. It does not include Lovemore Moyo, but logically, if he was not lawfully elected as Speaker, he did not lose his seat in the House and can now reclaim it. In the 2008 parliamentary elections he was elected MP for Matobo North. Hansard has continued to list him as the MP for Matobo North and there has been never been a by-election [although the Constitution states that a member’s seat falls vacant “if he becomes Speaker”]. The Clerk of Parliament is currently looking into this question.

Does the minority party hold the balance? Welshman Ncube is reported as saying his party will field a candidate and believes both MDC-T and ZANU-PF have no choice but to vote with it. In fact, a minority party only holds an upper hand if there is an equal contest between the two major parties and until other candidates are known it is unclear whether this will be the case. Also, the 8 MPs include Mr Mutambara and perhaps others who may be influenced by him.

Correction of Erroneous Press Report

A current report on the Internet seeks to underline the political significance of the Speakership with a claim that if a vacancy occurs in the Presidency the Speaker becomes Acting President until a new President is elected. This claim is wrong – if the President were to die or stand down, a Vice-President would act until a new President was nominated by ZANU-PF [under the Constitution as modified by Constitution Amendment No. 19, as long as the GPA continues] or elected by a joint sitting of both Houses of Parliament [under the Constitution without Amendment No. 19, if the GPA has lapsed].

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