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New election for Speaker of House of Assembly - Bill Watch 9/2011
March 14, 2011
of Assembly has adjourned to Tuesday 22nd March
The Senate has
adjourned to Tuesday 29th March
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.
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 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.]
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
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
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.
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.
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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