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Electoral Act faces constitutional challenge

By Gift Phiri

Law expert Alfred Mavedzenge is today expected to file a lawsuit in the Constitutional Court (Con-Court) challenging the constitutionality of the Electoral Act, arguing it gives government the power to veto regulations promulgated by the Zimbabwe Electoral Commission (Zec).

Justice Alfred Mavedzenge
Justice Alfred Mavedzenge

The lawsuit seeks an order to declare Section 192 (6) of the Electoral Act (Chapter 2:13) constitutionally invalid because it gives Justice minister Emmerson Mnangagwa power to approve regulations or statutory instruments developed by the Zimbabwe Electoral Commission (Zec).

Mnangagwa, also the vice president, is cited as the first respondent, Zec chairperson Rita Makarau second and the Attorney-General Prince Machaya — cited in his official capacity as the principal legal adviser to the government — is the third.

The Electoral Act has been routinely criticised in recent years by opposition political parties and civil libertarians, who say it lacks punitive measures and sanctions to deal with political violence and intimidation as well as ensure equitable access to unbiased media coverage for all electoral contestants.

Mavedzenge, who argues the ability of Zec to prepare for elections in a manner that is independent is undermined by Section 192 (6) of the Electoral Act (Chapter 2:13) which gives the Justice minister sweeping powers to interfere with Zec operations.

He also argues that Section 192 (6) of the Electoral Act (Chapter 2:13) was ultra vires Section 2 (1), Section 85 (1), Section 67 (1), Section 235 (1) (a), Section 235 (2) and (3), Section 134 and Section 167 (3) as read together with the other ancillary provisions of the Constitution.

“In preparing for these elections, the Constitution guarantees and requires that second respondent (Zec chairperson) must conduct all the preparations in a manner that is independent of control, direction and interference from anyone,” Mavedzenge argued in his main application.

“The purpose of guaranteeing this independence to second respondent is to ensure that she prepares and conducts the elections in a manner that fulfils my constitutional right to a free and fair election.”

This comes as a coalition of opposition parties — collectively the National Electoral Reform Agenda (Nera) — including all major opposition groupings and protest movements, has said the United Nations, African Union and the Southern African Development Community “must immediately establish an independent, tripartite election management body to take over the full functions of Zec”.

But Zanu PF legal secretary and Finance minister Patrick Chinamasa has said Zec reserved the constitutional right to run elections in Zimbabwe.

Plaintiff Mavedzenge, an associate of Maja & Associates in Harare, said he has a constitutional right to choose his government through a regular, free and fair elections run by an independent body and said Zec was now supposed to have begun the preparations for the 2018 elections.

Zimbabwe’s last electoral authority, which critics alleged was packed with President Robert Mugabe’s supporters, took more than five weeks to announce the results of a March 2008 presidential poll that gave opposition leader Morgan Tsvangirai victory but not enough votes to assume power.

Tsvangirai boycotted a subsequent run-off poll in June 2008, citing serious violence against his supporters.

Mugabe, Zimbabwe’s ruler since independence from Britain in 1980, denies that he has hung on to power by force or vote rigging.

Zimbabwe’s electoral reform process has stalled over constant squabbling, with the next general election set to be held by August 2018.

Mavedzenge wants Mnangagwa to pay costs of the suit on a legal-practitioner-scale. Daily News