‘Chiwenga decree on by-elections unconstitutional’


By Tatenda Chitagu

Legal think-tank, Veritas, has described Vice-President Constantino Chiwenga’s move to suspend by-elections, citing COVID-19 fears, as unconstitutional.

Chiwenga, who is also the Health minister, last week published Statutory Instrument (SI) 225A of 2020, Public Health COVID-19 Prevention, Containment and Treatment) (Amendment) Regulations, 2020 (No 4), which suspended the holding of by-elections slated for December 5, 2020.

“It is hereby notified that the Minister of Health has, in terms section 68 of the Public Health Act made the following regulations … these regulations may be cited as the Public Health COVID-19 Prevention, Containment and Treatment (Amendment) Regulations 2020,” read part of the notification.

“Pursuant to subsection (2), the holding of any by-election to fill a casual vacancy in Parliament or in a local authority is for the duration of the period of the declaration of COVID-19 as a formidable epidemic disease, suspended, and if such vacancy occurred while such declaration is in force, no part of the period from the date of such vacancy to the date of the end of the declaration shall be counted for the purposes of section 158(3) of the

But Veritas spokesperson Valentine Maponga said Chiwenga’s suspension of the by-elections goes against the letter and spirit of the supreme law of the land.

“In publishing SI 225A of 2020, the Minister of Health amended section 3 of the Public Health (COVID-19 Prevention and Containment) Regulations to say that while the declaration of COVID-19 as a formidable epidemic disease is in force — ie until January 1 next year, subject to extension — the holding of by-elections to fill vacancies in the National Assembly and local authorities is suspended,” Maponga said.

“The 90-day period within which by-elections must be held in terms of section 158(3) of the Constitution begins to run from the date on which the declaration ends.

“This is unconstitutional. In our Election Watch 1 of 2020 of May 17, we commented on an earlier attempt by Zec to suspend by-elections because of the COVID-19 pandemic and concluded that Zec could not do it. The same goes for this attempt.”

He added: “Section 158(3) of the Constitution states quite clearly: ‘Polling in by-elections to Parliament and local authorities must take place within ninety days after the vacancies occurred …’

“The Constitution makes no provision for an extension of the 90-day period, even during a state of emergency — and a state of public emergency is not currently in force.

“Just as Zec has no power to suspend by-elections by administrative decree; so too, the Minister of Health has no powers to suspend them through regulations under the Public Health Act.
“The Constitution overrides administrative decisions and regulations. The Constitution must be obeyed.”

But Justice minister Ziyambi Ziyambi defended the suspension of the by-elections, saying the move was “perfectly in order” as it was taken after considering public health concerns during the COVID-19 pandemic.

President Emmerson Mnangagwa also defended Chiwenga’s stance, saying the country could not risk walking over dead bodies to voting stations.