guest column:Election Resource Centre

THE Election Resource Centre (ERC) puts forward this legal opinion on the role of the Zimbabwe Electoral Commission (Zec) in filling vacancies that have arisen in party-list seats in the National Assembly. The opinion is an analysis of the current provisions of the Electoral Act and outlines the legal procedures for filling party-list vacancies. The legal opinion explains how Zec when faced by political party disputes ought to carry out a factual inquiry regarding the identity of the political party to which it sends a written invitation to submit nominations. The opinion highlights the legal duties of Zec in handling objections filed by the public and further explains the legal consequences when a political party or an objector is not satisfied by Zec’s decision in the filling of party-list vacancies.

What are party-list seats?

The purpose of this opinion is to analyse the role of the Zimbabwe Electoral Commission (Zec) in the procedures to fill vacancies that would have arisen in party-list seats in the National Assembly. Party-list seats are also commonly referred to as Proportional Representation and Senate seats.

Members who occupy party-list seats are not directly elected by voters as is the case with constituency-based seats. Instead, they are selected from a list which is prepared by the political party. The number of party-list seats that a political party gets is directly proportional to the total number of votes that the political party wins per province.

There are two types of party-list seats provided for in our Constitution. The first are the 60 seats in the National Assembly reserved for female candidates. Each of the ten provinces has 6 seats. The second lot consists of 60 seats in the Senate. The formula for allocating the seats on the basis of proportional representation is provided for in the Eighth Schedule of the Electoral Act.

What is immediately apparent from this is that the political parties which are allocated party-list seats at an election remain fixed during the term of Parliament. They cannot be varied or changed without upsetting the formula.

What is the legal procedure for filling party-list seats?

The procedure for filling party-list seats is provided for under section 39 of the Electoral Act. Section 39(3) provides that once a vacancy occurs among party-list Members of Parliament during the term of Parliament, the President of the Senate or the Speaker of the National Assembly is required to notify Zec of the vacancy. This should be done in writing, as soon as the Speaker or President become aware of the vacancy.

Upon receiving the notification, Zec is required in terms of section 39(4) to notify the public through a notice published in the Government Gazette. Zec must also invite the political party where the vacancy occurred to submit the name of a person who is qualified to fill the vacancy. It is important to note that Zec has no discretion on these issues. It has mandatory obligations to notify the public and to send an invitation to the political party. There is, however, a question over the identity of the political party to which it sends this written notice.

The political party is required to present a nomination paper to Zec with the name of the nominee. The nomination paper must be countersigned by two of the political party’s designated office-bearers.

Whether the persons counter-signing as the designated office-bearers have lawful authority to perform that role is a question of fact which Zec must verify. Indeed, the provision states that there can be two other “office-bearers of the political party whom the commission is satisfied are duly authorised to make the required countersignatures”.

Notifying voters and receiving objections

Section 39(6)(a) requires the chief elections officer to notify the public of the nomination that has been submitted by the political party to fill the vacancy. The notice in the Gazette will publish the name and details of the party-list nominated candidate.

Section 39(6)(b) requires the chief elections officer to give voters an opportunity to lodge written objections to the nomination with a specified period. The objections must be accompanied by reasons.

In other words, the objectors must explain why they are objecting to the nomination. Objections are an important stage as it is the only time that the electorate has a direct say during the entire course of the recall process.

Zec is expected to consider and assess the objections when they have been lodged by voters. The words used in the Electoral Act are significant. This provision requires Zec to consider “every objection received”. The standard test is whether there are valid grounds for objecting to the nominated candidate. If Zec finds that there are no valid grounds for objecting to the candidature, Zec will proceed to announce the appointment of the nominated candidates as party-list MPs by publishing a notice in the Gazette.

However, in terms of section 39(7)(b), if Zec finds that there are valid grounds of objection, it is required to give the political party an opportunity to make representations on the matter. Zec must consider the representations of the political party.

So what happens if Zec is not satisfied by those representations? Section 39(8) provides that it repeats the same process outlined in section 39 “until a qualified person is identified to fill the vacancy concerned”.

So what does all this mean in practical terms? What type of role does Zec play in exercising this function?

Zec’s quasi-judicial role

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 a discretion to Zec, which it must exercise reasonably.

This being the case, in the execution of this quasi-judicial role, Zec must conform with relevant rules and principles of administrative justice consistent with section 69 of the Constitution and the Administrative Justice Act.

The Electoral Act’s requirement to consider “every objection received” implies that Zec has a duty to give specific attention to each objection and to respond accordingly.

Where an objection is rejected, Zec must give adequate reasons for the dismissal so that the objector knows that their objection was duly considered and the reasons why it was rejected.

Likewise, the requirement that Zec must consider the representations of the political party implies that any rejection of those submissions must be accompanied by reasons. In both cases, it is not enough for Zec to simply dismiss either the objections or the representations without cause.

Factual inquiry: Which is the correct political party?

A related issue which requires Zec to carry out a factual inquiry is in regard to the identity of the political party to which it sends a written invitation to submit nominations.

Section 39(4)(b) states that Zec must “invite the political party in writing to submit the name of a qualified person to fill the vacancy”.

There is an implicit assumption in these words that the identity of the political party is known or easily identifiable. This should normally be the case because the political party which triggered the vacancy through the recall would be “the political party” which has the right to nominate a replacement. However, this is not always the case, as the current situation reveals where there is a conflict over the rightful political party.

While the current party-list vacancies were triggered by recalls made by the MDC-T, that matter is still to be resolved in the courts of law since the affected MPs argue that they were occupying MDC Alliance party-list seats and the MDC-T had no power or right to recall them. Apart from that, as far as Zec’s records are concerned, the political party which submitted party-list candidates in the 2018 elections was the MDC Alliance. Indeed, the calculations based on the formula set out in the Electoral Act for allocating party-list seats were based on votes which were won collectively by the MDC Alliance.

In looking at who has the right to fill party-list vacancies, Zec must look at the political parties to which it allocated party-list seats in the 2018 elections. One of those political parties was the MDC Alliance. When applying the law, the written invitation to fill the seats in terms of section 39(4)(b) should have been made to the MDC Alliance based on the 2018 elections. When Zec allocated party-list seats in the 2018 elections it applied a formula which recognised Zanu PF, MDC Alliance and the MDC-T led by Khupe. Consequently, where vacancies arise in those party-list seats, Zec must deal with the political party to which it allocated the original seats in terms of the formula.

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 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.

By recognising the MDC-T, to which it wrote the invitation in terms of section 39(4)(B), Zec erred grossly because it ignored, discarded and varied the original formula by which party-list seats were allocated in 2018. This variation by Zec is unlawful as the electoral body was now exceeding and acting outside its powers. In particular, Zec has no power to vary the identity of political parties which it received at the Nomination Court in 2018 when they submitted party-list candidates. Indeed, if it had recognised the MDC-T as a separate political party in 2018, the application of the formula to allocate party-list seats would have produced a different outcome. Zec cannot change the rules and actors half- way through the game.

What happens where the objector or the political party are not satisfied with Zec’s decision?

It is anticipated that one of the parties between the objector and the political party will be unhappy with the outcome. The objectors will be aggrieved if their objections are dismissed by Zec. Likewise, the political party will be unhappy if its representations are dismissed. The Electoral Act provides a single remedy. Zec is required to repeat the process until a suitable candidate is found. This remedy is limited because it is based on the assumption that Zec will be dealing with the correct political party. Yet the identity of the political party may well be the reason for the objection. This would mean if the objection is upheld by Zec, all future nominations by the political party will be invalid.

This is why in the circumstances where the identity of the correct political party is in dispute a more effective remedy would have to be pursued outside the Electoral Act. Once it has been shown that the remedy in the Electoral Act has been exhausted, it will be appropriate to approach the courts for a review of Zec’s decision-making process. If the judges apply their minds to these issues, they might be able to provide jurisprudential leadership on the application of the provisions concerning the replacement of party-list members. The current situation reveals some areas of uncertainty where judicial guidance, particularly on the role of Zec is required.

The opinion was written for the Election Resource Centre by Alex Magaisa

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