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Election of new speaker - Bill Watch 11/2011
Veritas
March 28, 2011

When Will the Election of the New Speaker Take Place

First thing this morning, Monday 28th March, the Clerk of Parliament told Veritas he did not know when the election would be held. Rumour, however, has it that it will take place tomorrow morning. Less than a day’s notice would be unreasonable. As the parties will want all their MPs to attend, reasonable notice should be given.

The Role of the President

Neither the Constitution nor House of Assembly Standing Orders require the date for the new election of Speaker to be fixed by the President. The Clerk in his press conference last Tuesday, contrary to a press report, did not say that the date would be fixed by the President. Subsequently the Clerk said he had written to the President to officially inform him, as part of the legislature, of developments.

Candidates

MDC-T: announced soon after the Supreme Court decision that its candidate would be the unseated Speaker Lovemore Moyo.

ZANU-PF: the Politburo met on Wednesday 23rd March and decided that party chairman Simon Khaya Moyo would be its candidate. This decision was conveyed to and adopted by the party’s parliamentary caucus.

MDC: the Welshman Ncube-led MDC has said it will not be putting forward a candidate.

Eligibility: Both Moyos are eligible for election as Speaker - both are former MPs.

Conduct of Election

In terms of the Standing Orders of the House the election must be conducted by the Clerk of Parliament. As there are two or more candidates, the election must be conducted by “a secret ballot”. Only members of the House of Assembly can vote and the election will be decided by a simple majority of the members present and voting.

Will Lovemore Moyo be allowed to vote?

Within a few days of the Supreme Court’s decision nullifying the Speaker’s election, Clerk of Parliament Austin Zvoma made a statement that Mr Lovemore Moyo could not revert to his pre-Speaker position as MP for Matobo North. Mr Zvoma said his decision was on the grounds that when an MP is voted in as Speaker the seat automatically becomes available for a by-election and that the President had been informed of the vacancy. [In fact the President had ignored the constitutional imperative to call such a by-election.] There have been queries whether it was within the powers of the Clerk to make such a ruling, and it was made despite advice to the contrary from both the Attorney-General’s Office, and also constitutional lawyer Lovemore Madhuku [electronic version of Professor Madhuku’s opinion available]. Lawyers for Lovemore Moyo lodged an urgent application in the High Court for an order declaring him to be the MP for Matobo North on the basis that if he had never been the lawfully elected Speaker, he had never ceased to be the holder of the seat he had won in the 2008 election. As an MP he would be able to vote in the election for a new Speaker. They withdrew the application as, in spite of an request for a urgent hearing, it became clear that the case would not be heard before the scheduled sitting of the House on Tuesday 22nd March, when the vote for Speaker was expected.

The current position is that on Friday 25th March Mr Moyo’s lawyers wrote to the Clerk of Parliament requesting a formal statement of his position vis-à-vis Mr Moyo’s right to the Matobo North seat and to vote in the forthcoming election. The Clerk’s response is awaited.

New MPs appointed by ZANU-PF

An extra vote for ZANU-PF? The ZANU-PF Politburo on 23rd March decided that the party would fill the seat, vacant since February 2009 when an extra non-constituency seat in the House of Assembly became available to it under GPA Article 20.1.7. This seat has been allocated to Mrs Oppah Muchinguri. She will have to be sworn in as an MP before she can vote. [Note - ZANU-PF will also be filling a vacant Senate seat but this will not affect the election for Speaker.]

Currrent Voting Strengths in the House of Assembly [NB these may Change]

Current party strengths are 96 each for ZANU-PF and MDC-T and 8 for MDC. These figures exclude Lovemore Moyo, as his exclusion is still being challenged, and Oppah Muchinguri, as she has not yet been sworn in. The actual numbers present for the vote may be affected by MPs being unavoidably absent through illness or official travel commitments or, in the case of MDC-T MPs, detention in police cells or remand prison, although obviously the parties will do their best to get all available members to attend. The MDC party executive has instructed its seven MPs not to participate in the election.

Vacant Constituency Seats

There are 11 vacant constituency seats in the House, affecting all three parties. By-elections to fill the seats are in some cases several years overdue. There is nothing that can be done about this situation before a new election for a Speaker, but it is tough on the constituencies concerned to have had their constitutional rights to representation violated while Parliament dealt with its ordinary workload, and now they will be unrepresented in the crucial vote to choose Parliament’s most senior officer.

Sequence of Events Leading to New Election of Speaker

25th August 2008 - election of Lovemore Moyo as Speaker - during the election six exuberant MDC-T MPs show their marked ballot papers to colleagues before depositing them in the ballot box.

September 2008 - application to High Court to set aside election - Jonathan Moyo, then Independent MP, and three MDC-M MPs bring court case against Clerk of Parliament for not ensuring a secret ballot [as specified in the Constitution and Standing Orders] and against Mr Lovemore Moyo as declared winner.

July 2009 - case argued in High Court before Justice Patel

26th January 2010 High Court upholds the validity of the election [Electronic version of judgment available]. The applicants promptly appeal to the Supreme Court.

21st September 2010 - case argued in Supreme Court - judgment reserved.

Thursday 10th March 2011 - Supreme Court ruling sets aside election of Lovemore Moyo as Speaker -

Tuesday 22nd March 2011 - House of Assembly due to resume, but Clerk indefinitely postpones sitting - the House was due to reconvene at 2.15 [it had been adjourned to this date at its last sitting on 9th March] and it was expected that the new Speaker would be elected, as the Constitution states no other business can be conducted until there is a new Speaker. But, at midday on Tuesday Clerk of Parliament Austin Zvoma held a press conference announcing there would be no sitting of the House of Assembly that afternoon as the House’s resolution of 8th March adjourning to Tuesday afternoon had been “superseded” by the Supreme Court’s judgment setting aside Mr Lovemore Moyo’s election as Speaker. The Clerk also said that the election of a new Speaker would take place on a future date to be announced by him in due course. [Electronic version of Clerk’s statement available.] [Note – this assisted one party who were not yet ready - later it was announced that the ZANU-PF Politburo would meet on the next day [Wednesday] to choose their candidate, and they then would have to instruct their Parliamentary caucus accordingly.]

MPs gathered in the House of Assembly chamber at 2.15 pm but no formal sitting of the House ensued, and they eventually dispersed. When Mr Lovemore Moyo entered the chamber, ZANU-PF and MDC MPs walked out. MDC-T MPs first sang and danced in protest and as they left their Secretary-General, Tendai Biti, citing Standing Order 16, told reporters that the Clerk had no power to call off the sitting of the House, and that MDC-T would consider taking legal action to compel the Clerk to recall MPs promptly and go ahead with the election of a new Speaker.

Wednesday 23rd March - MDC-T lodged a High Court application for an order overruling the Clerk’s action and ordering him to conduct the election of a new Speaker on the next Parliamentary sitting day. The case has been set down for hearing on Wednesday 30th March.

Friday 25th March - a further announcement by the Clerk expected but not made.

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