The Zimbabwe Electoral Commission (ZEC) had no legal basis to call off by-elections based on a statutory instrument that has not undergone parliamentary scrutiny, the Speaker of Parliament declared on Thursday.
Health minister Constantino Chiwenga two weeks ago issued Statutory Instrument 225A of 2020 which put by-elections in abeyance, citing the Covid-19 public health emergency.
In Parliament on Thursday, Speaker of Parliament Jacob Mudenda said statutory instruments can only be acted upon after the Parliamentary Legal Committee has issued a non-adverse report – which was yet to happen.
“Statutory instruments are subject to scrutiny by the PLC… and they can issue an adverse report or a non-adverse report on them here in the House,” Mudenda told MPs.
“That’s the position according to Standing Order No 28 as well as Standing Order Number 20, that they are legitimised first by the PLC for their constitutionality so that nobody acts on them before parliament has gone through them.”
Chiwenga, who is also the vice president, two weeks ago amended Covid-19 regulations to postpone the holding of by-elections which ZEC had announced would be held by December 5.
Citing public health concerns over the coronavirus, Chiwenga said the election ban would remain “for the duration of the period of declaration of Covid-19 as a formidable epidemic disease.”
ZEC followed the gazetting of that statutory instrument by announcing that “while it has lifted the suspension placed on the conduct of electoral activities which it had put in place as a measure to curb the spread of Covid-19, it is important for it to heed advice from the necessary authorities and take the necessary precautions to avoid the spread of the virus.”
"The Commission thus advises that the holding of by-elections remains suspended in line with the Public Health (Covid-19 Prevention, Containment and Treatment) Regulations being SI 225A of 2020 until the declaration of Covid-19 as a formidable pandemic has been lifted," ZEC said.
The announcement was criticised by the Zimbabwe Human Rights Commission as well as the main opposition MDC Alliance which is hoping to use the by-elections to quickly get its elected representatives controversially recalled by a rival faction returned to parliament and municipalities.
The MDC-T led by Thokozani Khupe has caused the recalls of 32 MDC Alliance MPs and senators, and 86 councillors including four mayors.
Mbizo MP Settlement Chikwinya (MDC Alliance) told reporters outside parliament that ZEC should re-instate its programme to hold the by-elections by December 5.
"This means that ZEC remains challenged to set out dates for by-elections as per dictates of the Constitution. The cases challenging the statutory instrument which are now before the courts now have more than a bright chance to succeed if ever the government still wants to oppose which I do not see how."