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Lloyd Gumbo Senior Reporter
Political parties and lawyers have received with mixed feelings an Electoral Court ruling by Justice Chinembiri Bhunu that a registered voter can lawfully contest for a National Assembly seat in a constituency in which they are not registered.
Justice Bhunu made the landmark ruling last week during a pre-trial conference in which former Zanu-PF MP for Hurungwe West Mr Temba Mliswa is contesting Cde Keith Guzah’s victory in the recent by-election.
The seat fell vacant after Mr Mliswa was expelled from Zanu-PF for acting against the party’s leadership in connivance with a cabal led by former Vice President Joice Mujuru, and was subsequently booted out of Parliament at the request of the party.
Zanu-PF and MDC-T representatives said the ruling was in order, while some legal practitioners argued that the judge erred.
Zanu-PF Central Committee member and co-chairperson of the defunct Committee of Parliament on the Constitution (Copac), that spearheaded the writing of the new Constitution, Cde Munyaradzi Paul Mangwana, said the judge had rightfully interpreted the law.
“The judge is correct because the Constitution says for one to qualify as a candidate, all they need is to be registered on the voters’ roll,” said Cde Mangwana, a lawyer by profession.
“However, those who nominate the candidate must be registered in that particular constituency. What we should bear in mind is that the judge interprets the law as it is, not what we want it to be.
“At the moment, the Electoral Act is silent on the need for one to be registered in the constituency where they want to contest. Unless and until we amend our Electoral Act and put that as an addition, that is when it will become a requirement.”
MDC-T spokesperson Mr Obert Gutu concurred with Cde Mangwana.
“Section 125 (1) of the Constitution of Zimbabwe states that a person is qualified for election as a Member of the National Assembly if he or she is a registered voter and is also at least 21 years of age,” he said.
“The Electoral Act does not contain any provision to the effect that one can only contest for a seat in the National Assembly in the constituency in which you are a registered voter.
“What the Act states is that you only have to be a registered voter in order to run for a seat in the National Assembly. To that extent, therefore, the ruling by Justice Chinembiri Bhunu is correct and unassailable at law.”
MDC Renewal spokesperson Mr Jacob Mafume said the practice had been that candidates be registered in the constituencies where they were contesting.
“It gives a sense that electoral practices in Zimbabwe shift like offals in a dish as they mainly favour Zanu-PF,” he said. “The judiciary is seemingly pliable to what the executive wants since the executive has not lost a single election case since the 2013 harmonised elections.”
University of Zimbabwe law lecturer Professor Lovemore Madhuku concurred with Mr Mafume.
“He (Justice Bhunu) is very wrong,” Prof Madhuku said.
“He is applying a very narrow and literal interpretation not suitable for constitutional interpretation. A Constitution must be interpreted according to what is called purposive interpretation,” he said.
“This takes into account the purposes sought to be achieved by the rules and the history of the rule. The judge’s approach leads to serious absurdities that could never have been intended by the makers of the Constitution.
“For example, one big and rich family in one corner of the country may provide all the 210 MPs. Fortunately, it is not a decision of the Constitutional Court,” he said.
“Given the judge’s ruling, it is therefore ridiculous that the law would insist on the nominators being on the voters’ roll in that constituency, while the person being nominated may not be on the voters’ roll in that constituency. It is a very strange interpretation.”
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