I recently argued that the suspension of by-elections through statutory instrument 225A of 2020 was illegal because it contravened sections 134 and 158(3) of the constitution.
BY ALEX MAGAISA
Last week, National Assembly speaker Jacob Mudenda announced that the statutory instrument was yet to get the approval of the parliamentary legal committee (PLC), which cast more doubt on its legality.
It would be surprising if the PLC finds the statutory instrument to be constitutional because, as explained in the last Big Saturday Read, it contravenes several provisions of the constitution.
The PLC is a committee of MPs that has the constitutional duty to scrutinise all legislation before it is passed by Parliament.
The functions of the PLC are set out in section 152 of the constitution, which requires it to examine a statutory instrument to determine its constitutionality.
Section 134(f) requires all statutory instruments to be laid before the National Assembly following its standing orders.
It requires them to be submitted to the parliamentary legal committee for examination. This is what Mudenda was referring to.
- Chamisa under fire over US$120K donation
- Mavhunga puts DeMbare into Chibuku quarterfinals
- Pension funds bet on Cabora Bassa oilfields
- Councils defy govt fire tender directive
Keep Reading
Zanu PF itself had flagrantly disregarded the suspension of by-elections because it went ahead with primary elections in various constituencies.
These primary elections are designed to select candidates for the by-elections, which the government it leads has purportedly suspended.
If anything, the statutory instrument was a piece of gamesmanship, designed to lull the opposition into believing there were no by-elections while Zanu PF was busy preparing for the same.
Thankfully, the genuine opposition saw through it and went ahead with its own primaries.
It was only the judicially constructed MDC-T, which has no appetite for competitive elections that welcomed and accepted the illegal suspension of by-elections.
Nevertheless, the episode exposed the Zimbabwe Electoral Commission (ZEC) for its malleability in favour of regime directives.
As the political referee, ZEC is supposed to be independent of political influence. It should not be directed by anyone.
It should stand firm and defend its mandate as the body responsible for running elections.
It should be insisting to the government what the constitution and Electoral Law require.
An independent body exercising its mind professionally would have told the government that SI225/20 was illegal, whatever the other considerations that the government had in mind.
Yet ZEC offered no resistance whatsoever.
It feebly succumbed to the directions from the Minister of Health and Child Care.
Regrettably, ZEC lacks the mettle to defend its autonomy.
ZEC had already shown that it was preparing to hold Covid-19-compliant by-elections.
It knows that many other countries have readjusted their electoral systems to be Covid-19 compliant.
ZEC had taken similar steps.
But as soon as the Health Minister announced his decree, ZEC promptly changed its tune and began to defend the suspension of by-elections.
With such a timid and malleable political referee that can bend to the government’s will, prospects of free and fair elections in Zimbabwe remain extremely slim and even that is a generous assessment.
Those who run ZEC do not have confidence in their mandate.
They seem to believe that they operate under the direction of the government.
ZEC chairperson, Justice Priscilla Chigumba is making Mudenda look like a constitutional law star.
She gave in too soon before she considered the illegalities of SI225/20, which is her mandate. Speaking of independent and impartial referees, one of the appointments at the Zimbabwe Human Rights Commission is a serious cause for concern for the apparent conflict it presents and the ominous signs it represents.
If the farmer entrusts a troop of baboons to look after his maize field, he is unlikely to yield anything at the end of the season.
Angeline Guvamombe is a former officer commanding ZRP Support Unit, also known as the riot police.
The other colloquial name for that unit is Black Boots, on account of their distinctive footwear.
Members of this unit are not known for their peaceful disposition.
They are notorious for using excessive force upon citizens, which they do with palpable zeal and enthusiasm. They are violent and trigger happy.
The unit has been involved in rampant human rights violations during demonstrations.
It is fair to say their conduct does not suggest any serious investment in human rights education and it is a reflection of the unit’s leadership. One of the key findings of the Motlanthe Commission, which was set up after the 2018 elections was that six civilians had been shot and killed by members of the military or police.
These were serious human rights violations, but not a single soldier or police officer has been held accountable.
None of the commanders had been held to account. Now, a former boss of the police unit which was involved in these violent and murderous incidents has been appointed to the board of commissioners of the Human Rights Commission.
It is like appointing a hyena to look after the interests of goats. The conflict of interest could not be starker.
This is not to say former police officers are precluded from taking public roles beyond their retirement.
They can and sometimes their investigative skills might be useful.
However, good practice would require a “cooling off” period between leaving their role in the security sector and taking up public office.
Therefore, one can jump from one institution which has a poor record of human rights violations into a role that is supposed to safeguard human rights.
The ZHRC has been the one beacon of light among all the institutions designed to support democracy.
It has consistently stood for the ordinary people. It has never shied away from criticising the government for human rights violations. It has so far performed its role with admirable courage and clarity.
It has been more remarkable in an environment where most institutions are captured by the government and do the ruling party’s bidding.
The stance taken by the ZHRC has left the government very uncomfortable.
In these circumstances, one cannot ignore the perception that these latest appointments, especially of the former boss of an institution that has shown little regard for human rights, are designed to neutralise the ZHRC.
Defenders of the regime will argue that the appointments were recommended by Parliament, but it is not a good defence because Parliament itself and the recommending committee are dominated by Zanu PF.
The ZHRC was doing a fantastic job standing up in defence of fundamental rights and freedoms.
But that may be about to change.
Years from now, if not just a matter of months, citizens should not be surprised if the ZHRC begins to behave like its poor cousin ZEC which lost its constitutional and moral compass a long time ago and whose predominant response is “How high?” when the regime commands it to jump.
It will become another statistic of how institutions lose direction on account of a compromised human factor.
The optimists will say perhaps Guvamombe will have a Damascene moment in the corridors of the Human Rights Commission.
Maybe she will leave the Black Boots behind her and become a champion of human rights.
To be proven wrong in such circumstances would be a pleasant surprise.
The independence of public officers is an important feature of the system of checks and balances which is necessary for good governance. Several factors help to support their independence.
They include the process by which they are appointed, providing for adequate remuneration, rules preventing directions from external sources, and the process by which they are removed from office. The Constitution has provisions that cater to these features.
Therefore, judges and members of independent commissions are supposed to be appointed through open and transparent processes.
This is also why Constitutional Amendment No. 2 has been heavily criticised because it seeks to erode the openness and transparency of appointing judges of the highest courts in the country.
However, one issue that has arisen in recent months is the process by which these public officers are removed from office. l This is an abridged version of Alex Magaisa’s latest Big Saturday Read blog post
