The Electoral Resource Centre (ERC) said the Zimbabwean Electoral Commission (ZEC) was violating the law by moving to replace MDC Alliance legislators with those from MDC-T while some court cases challenging the recall of the MPs were yet to be decided.
This comes after ZEC announced 21 vacancies in the Senate and National Assembly after the MDC-T led by Thokozani Khupe expelled from Parliament MPs belonging to Nelson Chamisa’s MDC Alliance.
Khupe and the MDC-T interim secretary-general Douglas Mwonzora have launched an onslaught against Chamisa using a Supreme Court ruling that Chamisa’s elevation to succeed MDC founder Morgan Tsvangirai was null and void.
The two MDC-T frenemies are claiming control of the MDC Alliance despite the fact that the party defeated the MDC-T in harmonised elections held in 2018.
In a legal opinion, ERC said there is room to challenge the constitutionality of the provisions, which compel ZEC to proceed with the process of filling vacancies even when affected Members of Parliament are still objecting to their recall. It said:
In this case, there is room to challenge the constitutionality of the provisions, which compel ZEC to proceed with the process of filling vacancies even when affected Members of Parliament are still objecting to their recall.
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.
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 vacancies.
There are fundamental rights and freedoms, which are adversely affected by the hasty approach taken by ZEC in these matters.
This right, which includes legitimate expectations, would be meaningless if administrative bodies proceeded to implement decisions that are still under legal challenge.
For the same reason as the right to a fair hearing, the realisation of the right to fair administrative justice requires the legal process be concluded before a challenged decision is implemented.
The current provisions of the Electoral Act, which compel ZEC to act to fill the vacancies before the resolution of legal disputes over the circumstances leading to the creation of the vacancy, are arguably unconstitutional for the above-stated reasons.