Alex T. Magaisa
The Zimbabwe Electoral Commission (ZEC) appears to have got itself into another legal twist, this time, over the recent by-election in Hurungwe West.
Information at hand suggests that the winning Zanu PF candidate, Keith Gazah, was not on the constituency’s voters’ roll at the time of the election as required by law. There are also suggestions that he did not even vote in the by-election on account of this handicap. This begs the question as to how he was even accepted at the nomination stage to contest in the election.
All this places the validity of the by-election into serious jeopardy.
The electoral rules require that a candidate must be a registered voter in the relevant constituency. S. 125 of the Constitution requires that an MP must be at least 21 years old and a registered voter. The Fourth Schedule sets out the qualifications for registration, which are further elaborated in the electoral legislation and regulations. These require a candidate to be a registered voter in the constituency.
Recognising that in some cases, persons who are not permanent residents in particular constituencies may want to contest in those constituencies, the electoral law allows these persons to register as voters if they intend to be candidates. It is this provision that allows elites otherwise residing in Harare or Bulawayo to qualify as candidates in rural areas where they otherwise don’t live. All this is designed to fulfil the requirement that in order to qualify as a candidate for a constituency, you must be registered as a voter in that constituency.
A more recent illustration of the application of this rule, albeit in respect of the Senate, is the case of former Reserve Bank of Zimbabwe Governor, Dr Gideon Gono. Dr Gono had been nominated to fill a vacancy that arose following the death of Senator Kumbirai Kangai in Manicaland Province. However, he was not registered as a voter in the province and attempted to correct this by changing his registering from Harare to Manicaland. He did this at the Registrar-General’s office.
However ZEC rejected this registration, on the basis that the Registrar-General no longer had the authority to register voters. Thus Dr Gono’s bid to become Senator for Manicaland Province stalled on that basis. At the time we wrote arguing that ZEC could register Dr Gono if it really wanted to because they had the power conferred by the Constitution. However ZEC was adamant that that they did not have the power in the absence of enabling legislation.
Now however, it appears that ZEC has found itself in a similar situation. Keith Guzah, the winning Zanu PF candidate in the Hurungwe West by-election was not on the voters’ roll for the constituency at the time of the election. Instead, reports indicate, he name appeared under Magunje constituency. Yet, his nomination papers were accepted by ZEC’s Nomination Court.
In a response to enquiries by NewsDay, the private daily newspaper, ZEC have said that they accepted Guzah’s nomination papers “on the presumption that all voters registered during the pilot voter registration phase for the affected constituencies would be entered in the final voters’ roll”.
However, it turns out that this presumption was false because Guzah’s name never appeared on the voters’ roll for Hurungwe constituency. In fact, in its commendable bid to prevent voting fraud, ZEC prohibited the use of voter registration slips for purposes of voting. If your name did not appear on the voters’ roll, you were not permitted to vote. This much has been categorically confirmed by the ZEC Chairperson, Justice Rita Makarau. “In the just-ended June 10 2015 by-elections, the commission took a cautionary approach to guard against counterfeit or fraudulent slips and restricted voting only to persons whose names were appearing on the voters’ roll,” ZEC said as reported by NewsDay.
All this means Guzah, whose name does not appear on the Hurungwe West voters’ roll, could not have voted in the by-election. If he had a voter registration slip, it could not have been accepted by ZEC because ZEC were not allowing it.
Guzah may claim that it is not his fault that ZEC were unable to compile the voters’ roll because he had done what was needed for him to qualify as a candidate. This appears to be what his party are saying in his defence. This, however, does not cleanse the illegality. It does not even excuse Guzah, who as a candidate, must have known going into the electon that his name was not on the voters’ roll. It merely places the responsibility on ZEC’s doorstep. They are the ones who have the constitutional obligation to register voters and to compile and maintain the voters’ roll. In this particular case, their failure to properly compile the voters’ roll could prove fatal to Guzah’s career as an MP.
Guzah himself should have known from studying the voters’ roll that his name did not appear on it and that this needed to be corrected. There is no evidence that they took active steps to have that corrected and so he went into the election in the full knowledge that he was not eligible because his name was not on the voters’ roll. It is this that exposes him to the view that his conduct was also tainted by fraudulent intent.
His absence from the voters’ roll and the exclusion of voter registration slips from the process means he did not qualify as a candidate in Hurungwe West, just as ZEC prevented Dr Gono from filling in the vacancy in Manicaland Province because he was not properly registered as a voter in that province. Some may say Guzah’s problem is a technicality but so was Gono’s problem. If ZEC has to acquire credibility, it must be consistent in its application of the rules. It has already bungled before, because when it refused to register Gono, its argument was that there was no enabling legislation to enable it to exercise those powers. However, just a couple of months later, the same ZEC was carrying out voter registration functions in the absence of any enabling legislation which they had previously claimed as a handicap. They did not explain what had changed for them to now exercise a power that they had denied just weeks before.
What then happens in this case? As we have stated, if the available information is correct, Mliswa or any registered voter in Hurungwe West are entitled to challenge the validity of Guzah’s election. A person is only eligible for election in a constituency if he meets the requirements, of which registration as a voter is a key one. They would be well within their rights to challenge the legality of the election.
Second, s. 129(1)(e) provides that the seat of a Member of Parliament becomes vacant if he “ceases to be qualified for registration as a voter”. This applies in circumstances where an exisiting is no longer eligible for registration as a voter. While there is no suggestion that Guzah has ceased to be qualified for registration as a voter, the fact of the matter is that if the information is true, it means that he is not presently a registered voter in Hurungwe West and it would be hard to support the continuation of his tenure as an MP of that constituency until such time that he is properly registered.
Can the anomaly be corrected after the fact? That, in my opinion, would be an improper and unlawful use of ZEC’s powers. They cannot register him and include him on the voters’ roll after the event as that would not only make nonsense of the law, but it would also create the moral hazard that in future, parties can ignore the law when it is inconvenient and try to fulfil it after the event. In any event, if ZEC wants credibility, then it must treat like cases alike. Gono was denied on a similar technicality and there is no reason why the laws should apply differently to Guzah.
Finally, ZEC itself has a constitutional responsibility to conduct elections fairly, impartially and in accordance with the law. The law is clear and in this case it has not been followed. They themselves should take responsibility for their omissions. They should also be ready to declare that the by-election was illegal and take the necessary corrective measures, which must all come down to declaring the election null and void.
But then one also has to consider the cost of this bungling on the taxpayers, for it is they who have to carry that expense. Elections are expensive, especially at a time when the country is struggling economically. Surely, those responsible for these failures must realise that all this makes their positions untenable. But ‘resignation’ and ‘taking responsibility’ are not words that exist in the vocabulary of public officials manuals in Zimbabwe. They will deny, deny and deny. And find someone to blame!
waMagaisa
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