The 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. 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 30 July 2020, notifying the public of vacancies among Party-list Members of Parliament. The vacancies arose from 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 Members of Parliament were elected under the ticket of the MDC Alliance party and not the MDC-T party which has subsequently recalled them. The affected members argue that the MDC-T had no power or right to recall them from Parliament. As the ERC understands, this legal dispute is awaiting final 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 leaves it with no discretion and must fill the vacancies once notified. Subsequently, the ERC states that 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.
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 matter before a decision that is adverse to his or her rights is implemented. Section 69(3) provides that “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.” Clearly the “right of access” is inclusive of the entire process up to the resolution of the dispute. The right to a fair hearing would be meaningless if a process that is being challenged was allowed to proceed to implementation regardless of pending legal action before the courts of law.
Which Political Party Has The Right To Fill Vacancies?
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. The party-list system is based on the recognition of political parties as accepted by the nomination court before the election, as according to section 45E(2) a nomination paper is required to state the name of the political party amongst other requirements. Additionally, section 45D(1)(b) of the Electoral Act provides for the disqualification of a candidate where he or she has been nominated as a party-list candidate by more than one political party in the same election. Therefore a party which fulfills the requirements for nomination and subsequently participates in the election, and is awarded a seat according to the formula for the election of party-list candidates, legally ought to be awarded the right to fill vacancies amongst its party-list members. A perusal of these documents will demonstrate that the party-list seats were awarded to the MDC Alliance candidates on the basis of votes obtained by the MDC Alliance as a single political party, not as separate entities.
How Party Lists Should Be Filled
The Electoral Act makes it clear that the political party which submitted the party-list has the right to provide a replacement candidate. The ERC posits that the situation cannot be different if the vacancy arises after the election result is known.
The situation before the result is known is provided for in section 45H of the Electoral Act. Section 45H(3) provides that if there are no more eligible party-list candidates for a particular political party (due to death or withdrawal of a candidate), ZEC must notify the public that there is a vacancy and must “invite the political party concerned in writing to submit the name of a qualified person to fill the vacancy”.
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.