…As Mwonzora takes ZEC to court over delimitation report

Emmanuel Chitsika

Citizens Coalition for Change(CCC) spokesperson Fadzayi Mahere has dismissed the possibility of a Government of National Unity (GNU) or the postponement of much anticipated 2023 general elections following MDC leader Douglas Mwonzora’s challenge to the delimitation report which is likely to be used for elections.
A number of people believe that the court challenge may lead to the deferment of the elections, which may lead to a GNU as the country prepares for another election.
Mahere said there was no way ‘political elites’ can stop elections when the time comes saying it’s actually Zanu PF and its proxies that are afraid of the polls.
“The constitutional requirement that elections be held every five years can’t be suspended by political elites who have no support from the citizens and are afraid of electoral loss. Zanu PF and its proxies are terrified of how much support they have lost and are seeking to use whatever hare brained plan they can think of to try and stop the process.
“We call upon citizens to continue demand adherence to the Constitution. Elections are like Christmas, you can’t postpone them as they will come whether or not you have new clothes,” said Mahere.
She went on to dismiss any possibility of a government of national unity as some circles have claimed could be the solution in case elections are not held.
“Elections are a Constitutional non-negotiable. Citizens must be at the centre of all national processes. We reject the notion of elite pacts or a Government of National Unity or whatever basis put forward.
“Done properly, elections are a true expression of the will of the people and a total necessity in a democracy,” she added.
Following the recent challenge by MDC Alliance leader Douglas Mwonzora to the delimitation report gazetted by President Emmerson Mnangagwa authorizing new boundaries under which this year’s harmonized elections are to be conducted, a lot of gaps and unanswered questions have or may pop up in the minds of many.
The shadowy nature of the constitutional challenge lodged on March 14 can easily make it difficult for an ordinary man to get to the gist of the whole matter and the possible implications that may stem from the court challenge.
Opinion is divided with various interpretations taking centre stage while a cloud confusion also engulfs the whole political atmosphere.
Quite a number of technical issues have been noted in Mwonzora application seeking to invalidate the constitutionality of the delimitation report while also it may imply the Zimbabwe Electoral Commission (ZEC) erred in their conduct leaving out grey areas making it easy for a potential challenge to the report.
Mwonzora argued that the final delimitation report did not take into account the final results of the population census among other issues which he argues will affect the credibility of the elections and thus his application seeks to ensure credible elections are held using the correct report.
According to Mwonzora again, in the event that elections are held with the report in question, the outcomes or results can be easily challenged before a court of law and thus it would have been wastage of national resources.
With regards to speculation that the court application by Mwonzora was a plot by Zanu PF who may want to delay elections since the applicant has on record been accused of ‘bedding Zanu PF’, political analyst Alexander Rusero dismissed the claim and said that party is geared for the polls.
“I think people have to understand why Mwonzora had taken the case to court beyond the conspiracy theories doing circles that he is Mnangagwa’s blue-eyed boy intending to delay elections, that is a misleading statement and fallacy which is very costly to the opposition because Zanu PF wants those elections, they are not afraid and are prepared regardless of all such claims doing rounds in the misguided opposition rank and file.
“Politics is the ability to determine outcomes and Mwonzora might be politically irrelevant in as much as the gravitas on the grassroots on the ground is concerned but you cannot take away his legal talents and prowess as he is one of the best lawyers produced in Zimbabwe since 1980. So I am very sure he picked certain loopholes in the whole delimitation exercise that warrants court attention and that why the case was given the green light that it warrants hearing by the full bench.
“There is really nothing to take away from that since it is not the first time a case has been granted such kind of attention by the courts. Suppose Mwonzora wins that does not have a bearing on issues politically or at law to do with proclamation of election dates or some possibilities of delaying an election. The whole idea is, should he win because the case has been positively perceived to have some merits, ZEC that can be directed to do certain things right and not necessarily to delay or stop the process of elections. Elections are conducted when they are constitutionally due and not when a country is ready or ZEC has exposed certain incompetences or not political parties are ready. Elections are done within the prescribed time frame,” said Rusero. He said the way Zanu PF is busy on the ground campaigning does not show any sign they want to delay elections and labelled such claims within opposition circles as ‘damaging and dangerous’.
National Democracy Institute of International Affairs (NDI) Senior Programmes Officer Jack Zaba said whether or not the polls are to be postponed, that remains the duty of the Constitutional Court to decide on but pointed out that in the event elections are postponed, the country will be plunged into a constitutional crisis as from August 26, 2023 where it will not have any legitimately elected office bearer in the presidency, parliament as well as local authorities.
“On whether Mwonzora’s application will cause changes to election dates, that remains the duty of the Concourt and the honourable judges there would help in interpreting this kind of law but you will find that this was the prayer filed by the applicant (Mwonzora) when he said ZEC must re-do the delimitation report and in so doing to give ZEC the time, elections will have to be postponed.
“While this matter is really subjudice, you will find that there are a lot of aspects to be considered and one of those is what Veritas labelled that there is an absence of clearly laid out law or legal provisions providing for the Concourt to postpone the elections. While the Concourt has the powers to condone certain actions, the absence of clearly laid out laws leaves us with questions on whether the court in its wisdom can postpone elections but one thing to consider is the imagination that in case of postponement, what effect will it have on other constitutionally-mandated organs of government.
“I mean that from August 26, 2023, the tenure of both the president and parliament would have expired and the question is if the Concourt decides in its wisdom to extend or postpone the polls dates, will it equally have powers to extend the powers of the president and parliament? The appeal by Senator Mwonzora does not appeal for extension of tenures for both president and parliament and as the law is structured currently, it does not allow for a vacuum after August 26 when the country may have no legitimately elected president or parliament and we still we will go for elections.
“In any case who will proclaim the dates for the elections after we no longer have a legitimate president? From a political opinion it may be difficult to postpone an election noting that we will be thrown into a situation that in trying to heal a possible election breach through the delimitation exercise, we will be plunged into another constitutional crisis. The Concourt may decide to postpone the dates but from an electoral law perspective, it may be difficult to do as it leads the nation into a constitutional crisis,” said Zaba.
He went on to say the fact that more stakeholders raised valid issues like the 20 percent threshold shows why Mwonzora’s appeal issues are concrete and the Concourt will help interpret them as they have constitutional validity.
“The issues raised by Mwonzora have validity in terms of the constitution for example if one looks at the issue of 20 percent threshold which to me is clear ZEC ought to have followed what the constitution says, the debate over matrix. Parliament raised the same issue and so did other key stakeholders and the appeal by Senator Mwonzora echoes that the calculation by ZEC have left us in a quandary because in some constituencies the variance of 20 percent is exceeded by far for example look at Bulawayo Central with about 22 000 voters compared to Mount Pleasant with 33 000, its clearly beyond 20 percent, so if one reads and interpret the constitution, he/she can clearly see that there is a lot of sense in the appeal and the Concourt may help validate that but basic calculations will tell you that the 20 percent applies across all constituencies not within a province as ZEC tried to convince us.
“Also the fact that some of his (Mwonzora) appeals are valid is the mere fact that the Concourt looked at the heads of arguments and gave them access to the constitutional court hearing and that may mean the appeal has constitutional validity,” added Zaba.
He said the Concourt has a decision to find with regards to possible scenarios on whether to proceed or not with the new boundaries.
“The Concourt has in terms of the possible scenarios an array of decisions to make with the first being whether to order ZEC to re-do the report and they have to be convinced by the applicant that the report is ‘fatally unconstitutional’. Either the court may order ZEC to sustain or re-do the report or in that case that is what may trigger situations linked to postponement of election dates. If the court decides that ZEC presented a report that is not fatally defective, then the nation will proceed with elections and that will cause less problems in terms of election preparations being done by the electoral commission, political parties, Civic Society Organisations and even international election observer groups or even media groups as that will ensure smooth flow towards 2023 elections.
“But in case a re-drawing of the boundaries is ordered, that will trigger a lot of issues. Basically that throws Zimbabwe into a mild constitutional crisis in the sense that it won’t be a really radically changing the political landscape but will then leave us with a situation where we are left with the old boundaries and in that case the court will have to decide whether elections are to proceed under the old boundaries which may be problematic in the sense that most of the political parties have already selected candidates using the new boundaries and to go to the old ones (2007-08) which are not recognised by Section 161 (6) and the question will be which old boundaries will ZEC revert to,” said Zaba.