ZANU PF strategists are scanning through the Electoral Act in a bid to scuttle Ezra “Tshisa” Sibanda and Eric Knight’s political ambitions, New Zimbabwe.com has learnt.
Newzimbabwe.com
The two former Radio 2 DJs plan to run for MP in general elections set to be held this year.
Zanu PF strategist Jonathan Moyo, in an informal briefing with journalists, suggested the two UK-based parliamentary aspirants faced major legal hurdles.
Sibanda wants to run on an MDC-T ticket in the Zanu PF-held Midlands constituency of Vungu while Knight will be throwing his hat in Mbare — also for the MDC-T.
The two men must first win tightly-contested primary elections before they get the party ticket.
Moyo said: “It’s not a surprise that to qualify for their primaries they must show British residence. But to qualify to contest elections in Zimbabwe, they must demonstrate that they were resident in the country for 12 continuous months preceding the elections.
“It’s not only their names which have a common ‘E’, their intentions to contest elections in Zimbabwe also have a common problem. They cannot rectify it in time for elections.”
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Moyo’s argument is based on a reading of Section 23 (3) of the Electoral Act dealing with “residence qualifications of voters”. It provides for the removal by the constituency registrar of individuals from the voters’ roll on the disqualification or death of such persons, or their absence from their constituencies for more than 12 months or the redomiciliation of such persons in another country.
We asked five lawyers for their opinions on Moyo’s reading of the Electoral Act — and all five said any attempts to bar Sibanda and Knight would likely come to grief.
MDC leader Welshman Ncube, a constitutional lawyer, said: “If they are registered as voters, and as long as they are back in Zimbabwe by the sitting of the nomination court, I can’t see anything to stop them from participating in elections.”
Alex Magaisa, a former law lecturer now Prime Minister Morgan Tsvangirai’s chief of staff, said Moyo’s interpretation was “selective and incorrect”.
“A close reading of subsection 3 of Section 23, shows that a person who is registered in terms of the proviso to subsection 1 is exempt from the residence requirement. The proviso to subsection 1 states that ‘if a claimant satisfies the Registrar-General of voters that he or she is or intends to be a candidate for election as a member of Parliament for a particular constituency in which he or she is not resident, the claimant may be registered as a voter in that constituency’,” Magaisa said.
“Eric Knight and Ezra Sibanda and indeed many other aspiring candidates that are not resident in the prospective constituencies fall into that category. When you read the subsection 3 on the residence requirement which applies to all other voters, it specifically makes an exception with regards to the special category of persons who are registered under the proviso to subsection 1, ie non-resident persons who are or intend to be candidates for election as MPs.”
Taffy Nyawanza, a UK-based Zimbabwean lawyer, added: “There are therefore three main ways to argue this: First, that such a requirement of minimum residency for a parliamentary candidate offends against the fundamental freedoms protected by the Constitution on the basis that it is not reasonably justifiable in a democratic society; or second; that it offends because it is unreasonably long and is therefore arbitrary or; three; that in any event the petitioners have always had their domicile in Zimbabwe; domicile being a nuanced way of arguing residency.
“Ezra and Eric will likely be met with the argument that the Constitution itself lists in its Schedule 3 the same ‘durational residence requirements’. However, in the famous Munhumeso case of 1994, the Supreme Court of Zimbabwe ruled that in a situation where there is inconsistency between separate provisions of the Constitution, the Constitution must always be interpreted in favour of the liberty of the petitioner.”
Brighton Mutebuka, who runs a Leeds law firm in England, said that particular section of the Electoral Act was “poorly drafted” — but insisted that it was unlikely it could be interpreted to thwart Sibanda and Knight’s political ambitions. “The key issue is the interpretation of the following provision: ‘a claimant shall be deemed to be resid ing in a constituency while he or she is absent therefrom for a temporary purpose’. Who determines or interprets what is a temporary purpose? I have looked at Section 4 of the Act which deals with interpretation to see whether the term is defined in the Act, but it clearly isn’t,” he said. “Given this state of affairs, and given how poorly drafted the provision is — it is open to being interpreted widely – it follows that there is nothing that can stop Ezra and Eric to argue that they were in the UK for a ‘temporary purpose’.”
