The Electoral Resource Centre (ERC) says the Electoral Act places the Zimbabwe Electoral Commission (ZEC) in a judicial role in the process of filling vacant seats in Parliament.
In its legal opinion on the role of ZEC in filling PR/Senate vacancies that have arisen in Parliament, the ERC argued that the Electoral Act places ZEC in a quasi-judicial role during the process of filling a party-list seat and gives it discretion which it must exercise reasonably. The ERC said:
Arguably, the provisions of the Electoral Act place ZEC in a quasi-judicial role during the process of Filling a party-list seat.
While it has mandatory duties to publish notifications of party-list vacancies when it is informed by Parliament and to invite the political party to submit a replacement, it has a key role in determining the validity of objections submitted by voters and the representations of the political party.
At both stages, ZEC plays a quasi-judicial role as it must consider the validity of objections and the political party’s representations.
This role requires weighing of the evidence submitted by both the objector and the political party. ZEC can either accept or reject the objections.
Similarly, it has the option to uphold or reject the representations made by the political party. In short, the Electoral Act gives discretion to ZEC, which it must exercise reasonably.
The ERC argued that in the case of the vacant seats created by the expulsion of MDC Alliance MPs by the judicially-created MDC-T, ZEC must look at the political parties to which it allocated seats in the 2018 election. It said:
In this case, that political party is the MDC Alliance. ZEC cannot allocate party-list seats to a political party that was not part of that original formula.
ZEC ought not to be dragged into the internal politics of the political party that it recognised and allocated party-list seats in 2018.
In the filling of the current vacancies, ZEC must deal with the political party it allocated seats in terms of the formula in 2018 and let the feuding members or components resolve their disputes.