Back to Index

MDC turns on political heat
Njabulo Ncube, Financial Gazette (Zimbabwe)
May 24, 2007

http://www.fingaz.co.zw/story.aspx?stid=3177

THE Movement for Democratic Change (MDC) has lodged an application in the Supreme Court challenging the legality of sections of two key electoral laws the main opposition says President Robert Mugabe has used to maintain his hold on power.

The Morgan Tsvangirai faction of the MDC, which is yet to decide on whether it will participate in next year's elections, is challenging sections of the Zimbabwe Electoral Commission (ZEC) Act and the Zimbabwe Electoral Act, in what will turn political temperatures to boiling point in the build up to the March 2008 elections. Five sections of the ZEC Act, namely Sections 3 (1) (a) (chapter 2:12), section 3 (1) (b) (chapter 12:2), section 15, Section 15 (1) (d) and 15 (2) (chapter 2:12) and section 15 (3) (chapter2: 12) are being challenged by the Tsvangirai faction.

These give President Mugabe the prerogative to appoint the chairperson of the ZEC and four other commissioners, and prohibit political parties from providing voter education to the electorate. Tsvangirai's party is also contesting Section 16 of the Electoral Act, regarding the appointment of the registrar of constituencies and polling officers.

The officials are supposed to be drawn from the public service, but the MDC charges that the provision allows the veteran Zimbabwean leader to stuff the system with party activists. The MDC says the two electoral laws make President Mugabe the "referee, player and supporter" in elections, in violation of the Constitution.

Legal experts said the timetable for the 2008 elections would be in shambles should the Supreme Court endorse the MDC's arguments. With less than 10 months to go before the crucial elections in which President Mugabe is likely to square up with Tsvangirai for the second time in as many years, the ZANU PF strongman will have little time on his watch to revamp the electoral processes, the legal experts say.

In his founding affidavit, the opposition leader says the MDC views the cited sections as being inconsistent with the provisions of the Constitution, and must therefore, be declared null and void. He said the opposition party had a vested interest in the matter, as it would field Tsvangirai as the opposition's presidential candidate in the event that the MDC decided to participate in the presidential polls next year.

"The applicant (MDC) will also participate in the parliamentary and senatorial elections in the event that these are held in 2008 as has been reported in the government-controlled media," reads part of Tsvangirai's affidavit.

"It is therefore, important that all legal instruments, which regulate the elections comply with the provisions and spirit of the Constitution of Zimbabwe for there to be free and fair elections."

He said section 3 (1) (a) of the ZEC Act contravened section 61 (1) (a) of the constitution, in that the Act limited the appointment of the chairperson of the commission to "a person qualified to be appointed as a judge of the High Court or Supreme Court."

The constitution provided that the chairman of the Commission "shall be a judge of the High Court or a person qualified to be appointed as a judge of the High Court or Supreme Court.

"Given that the chairman is appointed by the President who, under the current set up, is the President and Secretary of the ruling ZANU PF party, the section, as appears in the Act, leaves room for the President to appoint party activists from his political party merely because that person might be qualified to be appointed as a judge having regard to his educational qualifications and experience after being admitted as a legal practitioner."

He said Section 3 (1) (b) of the Act contravened section 61 (1) (b) of the constitution in that the constitution provided that in addition to the chairman, there shall be six other members of the commission, at least three of whom shall be women, appointed from a list of nine nominees submitted by the Committee of Standing Rules and Orders. The Act, he argues, gives a total of four other members of the Commission, in addition to the Chairman, at least two of whom shall be women.

The Act also reduced the number of nominees to be submitted to the Committee of the Standing Rules and Orders to seven. Section 61 (8) of the Constitution stipulates what shall or may be provided for in an Act of Parliament. Among the functions of the Zimbabwe Electoral Commission as laid out in section 61 (4) of the constitution is "to conduct voter education".

However, in section 15 the Act dealt with voter education by persons other than the Commission or political parties. Tsvangirai said section 15 of the Act was invalid as its provisions were not included in section 61 (8) of the Constitution. The MDC wants the section declared null and void, saying they contravene the provisions of section 61 (8) of the Constitution.

Tsvangirai argues in his affidavit that section 15 (1) (d) and 15 (2) of the Act should be declared null and void because they contravene section 20 of the constitution which protects freedom of expression.

"The requirement that other persons or organisations involved in voter education must furnish the commission with a programme for a approval by the same commission offends against both principles of natural justice and hinders enjoyment of freedom of expression. The commission must have its own programmes. The constitution does not allow it to approve voter education programmes of other persons or organizations."

Section 15 (3) of the Act contravenes section 61 (8) of the constitution, as the constitution does not call for criminal or penal provisions to be included in the Act. The Act says anyone who violates these provisions is liable to a custodial sentence or a fine.

Section 16 of the ZEC Act makes the commission the sole and exclusive recipient of all foreign contributions or donations for the purpose of voter education.

The MDC argues that that scenario is not provided for in section 61 (8) of the constitution. Tsvangirai's challenge is the latest in a series of legal battles that his party has fought against ZANU PF. After the tightly contested 2000 general election, the MDC mounted court challenges against results in 39 constituencies that had been won by ZANU PF.

The High Court nullified the results in half the constituencies, citing violence and intimidation by the ruling party. However, ZANU PF appealed, drawing out the battle into the 2005 election.

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP