High Court dismisses by-election challenge

Holding by-elections during the height of the waves of Covid-19 infection would have been reckless, the High Court ruled yesterday when dismissing a challenge to the suspension of by-elections and upholding a September 2020 amendment to lockdown regulations.

The by-elections were eventually held in March this year when President Mnangagwa and the health authorities deemed the risk was low enough to hold the polls safely and that the general lockdown was sufficiently relaxed that candidates and parties could campaign effectively and that voters could assemble at polling stations.

The onset of Covid-19 early in 2020 disrupted lives, businesses and communities worldwide as governments reacted with extraordinary measures to combat the spread of infection.

In Zimbabwe the Government reaction announced by the President was put in the legal form of regulations known generally as the lockdown regulations by the Minister of Health and Child Care, who is given this power in the Public Health Act. These were frequently amended with the by-election suspension amendment being announced in Statutory Instrument 225A of 2020.

Vice President Constantino Chiwenga had assumed the post of Health and Child Care Minister by the time this amendment came out. The amendment suspended by- elections to fill in vacancies in both the National Assembly and in local authorities caused through recalls of office holders and deaths, as a precautionary measure to contain the spread of Covid-19.

Even with other restrictions on gatherings, the normal processes of travel to polling stations and queuing in large numbers were seen as unacceptable risks to public health.

There was opposition to the move, but the legal challenge was launched by the Women’s Academy for Leadership and Political Excellence (WALPE), Election Resource Centre (ERC) and six Harare and Marondera residents: Ellah Tayengwa, Moud Chinyerere, Agnes Togarepi, GraciousMatsunga, David Gwanzura and Loice Gwangwara.

They sued Zimbabwe Electoral Commission, President Mnangagwa and the Minister of Healthand Child Care, arguing that the suspension was a breach of the Electoral Act, the Constitution and the Public Health Act. Through their lawyer Mr Tendai Biti the applicants argued that other countries in Africa and outside the continent held their elections despite the devastating pandemic. They accused Vice President Chiwenga of suspending the Constitution through the legal instrument to suspend the by- elections.

But Justice Paul Siyabona Musithu upheld the lockdown amendment saying these regulations were not in breach of the Constitution.

“The respondents would have been culpably careless to allow a by-election in the midst of a deadly virus that was known to spread easily in close contact settings where social distancing was not achievable,” he said. “The fact that other countries held their elections during the time that the virus was still at its peak, and at a time when lives were still being lost in large numbers, does not necessarily mean that this country should follow suit.

“Each country had its own peculiar circumstances, which informed the decision to hold or not to hold elections during a pandemic. Considerations were different from country to country.”

In his judgment, Justice Musithu noted that the holding of elections was treasured in several parts of the Constitution, and more significantly full political rights, which encapsulate the idea of free, fair and regular elections, fall under fundamental human rights and freedoms. But the Constitution also allows for certain rights, such as freedom of movement and association, to be abridged during public health emergencies.

The judge found that by the time the by-election suspension was gazetted there had been serious inroads into some political rights through the principle regulations giving legal force to the original lockdown, SI 83 of 2020. The SI introduced a national lockdown that restricted the movement of people, and prohibited public gatherings among a raft of measures meant to contain the spread of Covid-19.

The judge said an election process should be held under conditions that guaranteed the free movement of people to allow for campaigning and attending meetings, as well as public gatherings. It meant the timing of the elections in terms of the Constitution had to conform with the realities on the ground.

“The question which arises is whether voters, candidates and political parties were going to be able to freely exercise their electoral rights under those conditions? The answer in my view is negative.”

The judge also said it would have been imprudent for the President and Minister of Health and Child Care to have allowed the elections to go on for the sake of complying with a Constitutional obligation well aware that the conditions were not conducive. This, he said, would have denied the voters, candidates and political parties an opportunity to enjoy their electoral rights, given that the Government had also put in place a law meant to suppress the spread of Covid-19.

On ZEC, Justice Musithu found that it was a key player in the election processes but was not designated as an essential service in the national lockdown legislation. This meant that it was constrained from carrying out its constitutional mandate because of the legislation and the legality of that law was not questioned. It was not before the court.

“The lockdown legislation made serious inroads into electoral rights meaning that no credible, free and fair by-election could be held during the time that the legislation was in force,” he said.

“This court cannot ignore the conditions on the ground,which must be considered in the context of the coronavirus and the lockdown in determining whether the (the President and VP Chiwenga) acted unlawfully in not calling for by-elections before the amendment regulations became law. An election held under the conditions enumerated…would clearly have been a charade.”

Justice Musithu also ruled that a law of general application can limit the enjoyment of fundamental human rights and freedoms to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society. In his ruling, the judge considered the constitutional framework and the context in which some sections of the Constitution operate and was satisfied that the amendment regulations were in conformity with the Constitution.

In his submissions, Mr Biti argued that the motive of imposing a ban on by-elections by the Government had nothing to do with curbing Covid-19 but was a suppression of democracy.

He said the Government had suspended the Constitution by not implementing its provisions such as holding by-elections whereas othercountries in Africa and beyond had held polls and emphasized that all constitutional obligations must be complied with diligently and without delay.

Ms Olivia Zvedi arguing the matter for the President and Health and Child Care Minister said it was prudent for the Government to suspend by-elections to conquer the spread of Covid-19 since the risk of a third wave of the pandemic was high.

She also argued that section 86 of the Constitution provides for the limitation of rights hence Government had taken the right decision in suspending by-elections. Mr Tawanda Kanengoni for ZEC argued that holding by-elections at a time of the coronavirus pandemic would curtail effective participation of the electorate and said in any case that ZEC could only conduct by-elections once President Mnangagwa issued a proclamation. Herald

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