ZEC has made it clear that it has no discretion in the matter. Once informed of a vacancy, it must follow the Electoral Act in filling that vacancy, unless a court orders it do otherwise, which has not happened. ZEC does not decide whether a seat is vacant or not. The Act sets out how ZEC fills a proportional representation seat. For constituency seats, the President is also involved to set the nomination day and the date of the by-election.
In a statement, ZEC chief elections officer Mr Utoile Silaigwana said the move to fill the proportional representation seats was in terms of the law.
“The Zimbabwe Electoral Commission (ZEC) would like to inform the public that it is proceeding with filling in the proportional representation vacant seats which arose from recalls made by the MDC-T party in line with provisions of section 39 of the Electoral Act.
“Section 39(4) of the Electoral Act states that upon being notified of a vacancy, the commission must without delay, notify the public of the vacancy by a notice in the Government Gazette.
The commission then invites the political party that had nominated the original member in writing to submit the name of a qualified person to fill the vacancy. That party must lodge with the commission a nomination paper in the prescribed form, countersigned by any two of the designated national office bearers of the party or by such other two office-bearers of the political party which the Commission is satisfied are duly authorised to make the required counter signatures.”
Mr Silaigwana said the import of the provision was to create a peremptory process by which such vacancies were filled.
“In simple terms, ZEC is bound to follow the provisions of the Electoral Act unless a court order expressly enjoins it to refrain from doing so. The commission has received no such order from the court and must thus pursue its mandate as per the dictates of the law,” he said.
It was important to note that the commission was not an arbiter of who may or may not recall a member of Parliament.
“It merely facilitates the filling of the resultant vacancy in the confidence that Parliament has conformed to its governing procedures and to the law in notifying it of the vacancies. If there is an objection to the creation of the vacancy itself, the remedy for that lies not in an attack on the performance of peremptory statutory functions by the commission, but elsewhere.”
Mr Silaigwana went on to say ZEC’s stance on filling proportional representation seats had been taken, noting that the process of filling these seats did not pose a threat to public health nor would it violate regulations put in place by Government to curb the spread of Covid-19.
“All other electoral activities which involve gathering of people with the potential to fuel the spread of Covid-19, however, remain suspended.
The High Court on Friday dismissed an urgent bid by 14 legislators to stop MDC-T from replacing them in Parliament following their recall.