The Election Resource Centre (ERC) proffers this legal opinion which identifies legal risks and issues that electoral stakeholders should address as part of the ongoing recalls of members of the National Assembly and the Senate.

By Election Resource Centre

From the perspective of an electoral stakeholder, this legal opinion, or more specifically the engagement around the content of the legal opinion, is a valuable tool towards a credible electoral process.

The legal opinion analyses the legality of the filling of vacancies of party-list seats in Parliament, following a notice by the Zimbabwe Electoral Commission (Zec), dated July 30 2020, notifying the public of vacancies among party list members of Parliament.

The vacancies arose as a result of the recall of MDC Alliance members of Parliament by the MDC-T party on the grounds that
they had ceased to be members of the MDC-T.

There is an existing legal dispute concerning the legality of the recalls as affected MPs were elected under the ticket of the MDC Alliance and not the MDC-T which has recalled them.

The affected members argue that the MDC-T had no power or right to recall them from Parliament. The ERC understands this legal dispute is awaiting resolution in the courts of law.

The ERC believes that it is premature for Zec to proceed, as it has done, to issue a notice of vacancies when there are pending legal cases aimed at determining the legality of the Parliamentary vacancies.

There are fundamental rights and freedoms which are adversely affected by the hasty approach taken by Zec in the matter.

However, Zec argues that the provisions of the Electoral Act are mandatory and leave it with no discretion and must fill the vacancies once notified.

The ERC states that the current provisions of the Electoral Act, which compel Zec to fill the vacancies before the resolution of legal disputes over the circumstances leading to the creation of the vacancy are arguably unconstitutional.

The right to a fair hearing provided for in section 69 of the Constitution means that a party to a dispute is entitled to a determination of his or her matter before a decision that is adverse to his or her rights is implemented.

The right to a fair hearing would be meaningless if a process that is being challenged was allowed to proceed to implementation regardless of a pending legal action before the courts of law.

The second contentious issue concerns the identity of the political party to which Zec is required to send an invitation to submit names of candidates to fill the vacancies.

The ERC submits that the party which has the right to nominate replacement candidates is the political party which provided the party-list at the general elections.

These provisions of the Electoral Act, which leave Zec with no discretion in the matter are arguably unconstitutional as they interfere with the rights to a fair hearing and the right to fair administrative justice.