High Court reserves judgment on application seeking holding of by-elections

Lawyers for the applicants argued that the delay breached the electorate’s right to representation

Massive fraud... Professor Jonathan Moyo claims in his book that the Zimbabwe Electoral Commission (ZEC) connived with the state security establishment to rig the 2018 elections for President Emmerson Mnangagwa who had lost the vote to Nelson Chamisa.

HARARE – The High Court on Monday reserved judgment on an application by two civic organisations seeking an order compelling President Emmerson Mnangagwa and the Zimbabwe Electoral Commission (ZEC) to schedule long-delayed by-elections.

The Women’s Academy for Leadership and Political Excellence (WALPE) and the Election Resource Center (ERC) lodged their challenge in October arguing the prolonged suspension of polling activities due to Covid-19 was unreasonable and violated human rights.

ZEC had developed a Covid-19 policy on electoral activities last year with clear guidelines stating how elections would be held safely but was overruled by health minister Constantino Chiwenga through Statutory Instrument 225 of 2020 which indefinitely banned voting as a precautionary measure against the respiratory illness.

Dozens of parliamentary and municipal by-elections are overdue after the incumbents either died or were recalled in the ongoing acrimonious wrangle between the MDC Alliance and the rival MDC-T, which is increasingly seen as a Zanu PF surrogate.

ZEC lifted a ban on voter registration in March but said by-elections would remain suspended due to the lingering threat paused by Covid-19.

Lawyers for the two organisations argued that the delay breached the electorate’s right to representation, adding that the by-elections could be held safely without risking the spread of Covid-19.

In any case, the lockdown restrictions had been relaxed, they argued.

Justice Siyabona Musithu also posed the same argument to lawyers representing Mnangagwa and ZEC during hearings asking, “Isn’t it that elections are just held for one day?”, and calling the matter a “national issue.”

The president’s attorneys countered that Section 86 of the Constitution provided for limitations of human rights and that the Covid-19 pandemic still posed a threat, adding the risk of a third wave was high.

Activists Ellah Tayengwa, Agness Togarepi, Gracious Matsunga, David Gwanzura, and Precious Choruma joined the application in their individual capacity.

“I seek a declarator in this case on the following terms; The 1st [ZEC] and 2nd [Mnangagwa] respondents’ decision not to hold by-elections before the 30th of September 2020, was in breach of The Electoral Act [Section 39] and Sections 258 and 259 of the Constitution of Zimbabwe,” said Choruma in a supporting affidavit.

“That SI 225A/2020 is ultra vires Section 39 and 121A of the Electoral Act. That SI 225A/2020 is ultra vires Section 158 of the Constitution of Zimbabwe.”