By-elections and the Opposition: To Contest or Not to Contest?

Alex T. Magaisa

“The lizard that jumped from the high iroko tree to the ground said he would praise himself if no one else did”.

These are the famous words of the great Chinua Achebe, in Things Fall Apart, drawing from the wisdom of his Igbo ancestors.

News that President Mugabe has finally called by-elections in two constituencies whose seats became vacant by operation of law has prompted me to invoke the great story-teller’s words.

For it was this blog that first brought to public and the authorities’ attention the fact that these vacancies had arisen by virtue of the new constitution’s provisions.

Indeed, on 11th December 2014, I wrote a letter to the Speaker of Parliament, reminding him of his duty to inform the President that vacancies had arisen by virtue of the application of s. 129(1)(c.) of the Constitution, which states that when a person who is an MP becomes a Vice President, he or she ceases to be an MP.

The letter was posted on this blog https://newzimbabweconstitution.wordpress.com/2014/12/15/mr-speaker-sir-letter-to-the-speaker-of-parliament/ and also sent by email to the Clerk of Parliament, who, however, neither responded nor acknowledged receipt.

However, I was satisfied that the message had reached the relevant ears, as later national newspapers also picked it up and now the President has called by-elections.

This indeed, is a celebration of what the blog was set up to do. It was set up during the constitution-making process in order to explain the proposed clauses of the new constitution.

After the adoption of the new constitution, the purpose transformed to one of explaining the provisions and monitoring its implementation and application. I use the blog to analyse events that affect the constitution and make calls to authorities, whenever necessary, to ensure the constitution is defended and upheld.

This, therefore is an important moment, one in which I realise that the effort is not in vain, even if it is not always acknowledged. But even if it is not, well, one can always be the lizard that jumped from the high iroko tree and praise itself when no-one else does!

Bikita West

I should point out though, that there is need to look into and clarify the status of the Bikita West seat in the National Assembly. This seat is currently held by Dr Munyaradzi Kereke.

Kereke was one of the Zanu PF rebels who contested in the election in 2013 against the orders of his political party. Even President Mugabe castigated him at his Masvingo rally, for refusing to obey party orders. Zanu PF was represented by Elias Musakwa, who was the preferred candidate.

However, Kereke was also on the ballot paper under the Zanu PF logo after Zanu PF’s efforts to get him barred from contesting in that manner hit a brick wall. Zanu PF declared that those who contested against its wishes had expelled themselves and were no longer its members.

Kereke was unfazed. He went on to win the seat. Later, after the elections, Zanu PF tried to get him expelled from Parliament in October 2013, claiming that he was no longer their member.

They were trying to use s. 129(1)(k) of the Constitution which provides that a person who is no longer a member of a political party will cease to be an MP is the party notifies the Speaker that he has ceased to be their member.

Zanu PF wrote to the Speaker informing them that he was no longer their member. Kereke protested and approached the Constitutional Court, arguing that Zanu PF had no power to cause his expulsion from Parliament as he had not contested as a Zanu PF member but as an independent.

He argued that he had used his own resources to campaign and had not received any support from Zanu PF and that his supporters knew that he was not a Zanu PF member. This is the effect of the evidence that he submitted to the Constitutional Court, under oath. Later, the matter was settled and the court declared that Kereke would remain an MP.

Now, a few weeks ago in December 2014, State media reported that Kereke had been readmitted into Zanu PF. This was consistent with the previous facts showing that he was not a Zanu PF member but an independent.

In any event, re-admission presumes that you were not inside and you can only be re-admitted if you were outside.

At any rate, if Kereke were to claim that he, in fact, contested as a Zanu PF member, that would be contradicting the evidence that he submitted under oath to the Constitutional Court and therefore, he would be exposing himself to the risk of having perjured himself. Perjury is a serious offence.

If, therefore, the facts are, as he claimed before the Constitutional Court, that Kereke was an independent when he contested the election and if he has now re-joined Zanu PF, then that seat is also now vacant, in terms of section 129(1)(l.) of the Constitution, which provides that:

“The seat of a Member of Parliament becomes vacant –

(l) if the Member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party”.

The effect of this clause is that, if a person was not a member of a political party when he or she contested an election, he or she must remain an independent until the expiry of his or her term. If he or she chooses to join a political party, then he or she must give up the seat.

The idea is that in such a case, the people would have voted for the individual and not the political party and if that individual chooses to join a political party, the people must be given another opportunity to decide if they want to have an MP from that political party or to elect another person.

My view is that in light of the hazy circumstances surrounding the Bikita West seat and what went on before the Constitutional Court, clarity must be given by the Speaker and in this regard, the civil society and opposition have a duty to demand answers and clarity in light of the constitutional requirements. If it is accepted that he was a Zanu PF member when he was elected, then there is no problem.

But if, as circumstances suggest, he has only been readmitted into Zanu PF recently, meaning that he was not a member of Zanu PF when he was elected, then that seat has also become vacant by virtue of s. 129(1)(l) and therefore, the President must also call a by-election in that constituency.

If Kereke however, insists that he was a Zanu PF member when he contested, then the Constitutional Court and law enforcement authorities must take an interest in the matter for an explanation as to why he submitted under oath, evidence to the contrary, when he challenged Zanu PF’s attempt to expel him from Parliament in October 2013.

Opposition’s Challenge

Finally, now that by-elections have been called in the two constituencies, the opposition MDC formations must confront the crucial question as to whether or not they will contest elections. The opposition’s stance on elections since the 2013 general elections has been ambivalent at best. It has not been clear.

On the one hand, the opposition parties have raised questions, legitimate questions it has to be said, over the fairness of elections. By way of example, it’s almost two years since the 2013 elections, and the Registrar General of Voters is yet to deliver the electronic voters’ roll, which is important because it is easily searchable and analysable than a hard-copy.

This is a legal requirement which has been breached continuously up to now. Now that the constitutional power over the voters’ roll rests with the Zimbabwe Electoral Commission, the voters’ roll has still not been resolved.

The net effect is that the problems that the opposition parties have raised in the past over elections still remain. Yet, even in the face of all this and their protests, the opposition have nevertheless contested in local authorities’ by-elections and on almost every occasion, lost dismally to Zanu PF.

The opposition parties have to confront this question again – to contest or not to contest. It is important to be consistent and to take a resolute stand on the question of election.

Dr Alex Magaisa can be reached on wamagaisa@yahoo.co.uk. You can visit his blog: https://newzimbabweconstitution.wordpress.com/