Oft-times, when we engage in legal and constitutional analysis or even political analysis, I do so in the hope that someone in a position of influence, such as an MP or a politician, will take up suggestions and bring them to the relevant authorities. However, this hope sometimes is too ambitious. People read, sometimes they enjoy, sometimes they sulk and they wait for the next one. I raised the issue of the potential breach of the Constitution a s few days ago and thought someone would take it up with the relevant authorities. I have not heard much of the case, not even from civil society and the opposition.
So I thought I would go a step further and prepare a template of a letter/petition, whatever you might call it, addressed to the head of Parliament. All one needs to do is to take a copy and paste – you have my permission – and send it to the Speaker, copy it to ZEC and the Office of the President and Cabinet, too. It would be good to get their response to the issue raised. That is the least that we as citizens and civil society can do – demand that the Constitution be upheld, particularly where breaches are apparent. What follows below is the letter/petition, whatever you want to call it.
The Honourable, Speaker of Parliament, Mr Jacob Mudenda,
Re: Declaration of vacancies in the National Assembly pursuant to s. 129(1) (c.) of the Constitution of the Republic of Zimbabwe (hereafter, “the Constitution”)
I write this letter as a citizen of the Republic of Zimbabwe (hereafter, “the Republic”), pursuant to rights provided for generally in the Constitution and in any event, enshrined in s. 149 of the Constitution, which provides for the right of citizens to petition Parliament on any matter that falls within its authority.
In terms of s. 135 of the Constitution you, Mr Speaker, Sir, are the designated head of Parliament and it is in that capacity that I address this communication to you.
However, as this is a matter that concerns electoral issues, I have also copied this letter to the Chairperson of the Zimbabwe Electoral Commission (hereafter, “ZEC”). A further copy is also made to the His Excellency, the President of the Republic (hereafter, “HE the President of the Republic”), whom, in terms of s. 90 of the Constitution has a duty to “uphold, defend, obey and respect” the Constitution and is required to ensure that the Constitution and all other laws of the land are “faithfully observed”.
In this regard, I would like to bring to your attention the following provision, namely, s. 129 (1)(c.) of the Constitution, which states that,
“The seat of a Member of Parliament becomes vacant – …
(c.) upon the Member becoming President or Vice President”.
My understanding of this provision is that once an MP is elevated to the position of President or Vice President, then his or her parliamentary seat becomes vacant. This is very clear and unambiguous. Once the vacancy arises, a by-election must be called in the constituency within 90 days of the vacancy arising in terms of s. 158(3) of the Constitution. In terms of s. 110(2) (e.), the function and duty to call elections in terms of the Constitution falls upon HE the President of the Republic.
Since the Constitution came into force on the effective date, I understand that at least three persons have on separate occasions been appointed Vice Presidents of the Republic and I understand further, that 2 of them have been MPs in the National Assembly. In this regard, on Friday 12th December 2014, Honourable ED Mnangagwa who held a seat in the National Assembly, was appointed Vice President of the Republic. At that point, his seat became vacant in terms of s. 129(1)(c.) of the Constitution. I would be grateful if you could please, kindly confirm that this is the correct position and that, therefore, my understanding is correct that a by-election will have to be called by HE the President of the Republic before the expiry of 90 days.
Further, Mr Speaker, Sir, I note that on 11th September 2013, HE the President appointed Honourable JTR Mujuru as Vice President of the Republic of Zimbabwe. It follows that by similar reasoning, and under the above interpretation of s. 129(1) (c.), her parliamentary seat became vacant and a by-election should have been called within 90 days from the date of appointment pursuant to s. 158(3) of the Constitution. By my estimation, a by-election should have been called in the relevant constituency by latest, 10th December 2014 or in any event before mid-December 2014. To my knowledge, no by-election in that constituency was ever called. In the circumstances, there is a prima facie case that the Constitution has not been followed in this regard.
Mr Speaker, Sir, when I joined my fellow Zimbabweans to vote for a new constitution in the Referendum on 16th March 2013, we did so in an overwhelming manner, signifying our collective desire to establish a new constitutional order. We committed ourselves to uphold and defend, among other values and principles, the supremacy of the Constitution, the rule of law and the recognition of and respect for the liberation struggle. We are painfully aware of the sacrifices that were invested in the struggle for liberation, the values of which are enshrined in the national charter.
It is for this reason that I believe it is of the utmost importance that the Constitution be upheld, respected and defended, particularly by those holding high office, who are agents of the people from whom authority to govern is derived as confirmed in s. 3(2)(f.) of the Constitution and related provisions throughout the Constitution, for example s. 88 which states that, “executive authority derives from the people of Zimbabwe and must be exercised in accordance with this Constitution”.
It is my respectful view, Mr Speaker, Sir, that there is already an on-going breach of the Constitution, in that a by-election has not been called when it should have been. It is important to officially acknowledge and correct this contravention. Finally, it is my hope that the same breach will not be allowed to occur and/or persist in respect of the seat formerly held by Honourable VP ED Mnangagwa.
Alex T. Magaisa
Citizen of Zimbabwe