Alex T. Magaisa

A grim chapter in one of the most dubious political stories ended this week when Thokozani Khupe and her band of allies were sworn in as members of Zimbabwe’s Parliament. For those who are unfamiliar with Zimbabwean politics, Khupe and her party lost dismally in the 2018 general elections.

As a presidential candidate, she got a paltry 45,000 votes nationally while her party managed just 2 seats in Parliament. By contrast, her rivals Nelson Chamisa and Emmerson Mnangagwa had more than 2 million votes each. Now, however, Khupe is back in Parliament where she is claiming the title of the leader of the opposition.

How can this possibly be the case? How did someone who suffered such an ignominious defeat rise to become the leader of opposition in Parliament? These are legitimate questions. To understand this bizarre political circumstance, it would be a good idea to read a recent BSR examining how the Mnangagwa regime has been on a relentless mission to annihilate the main opposition political party, the MDC Alliance.

In short, Mnangagwa’s strategy is to capture and control the opposition, just as he has captured other institutions of the state such as the election management body, the judiciary, state media and some parts of the private media, the security apparatus, and most state entities. The main opposition was one of the last institutions that were beyond his control. Now he has installed a faithful ally as leader of the opposition in Parliament.

Propping up a desperate ally

When Thokozani Khupe put up a pathetic performance in the 2018 elections, she realised that her political future was bleak. Instead of persisting with hard opposition politics, she chose the soft path. Although she initially made feeble complaints of vote-rigging, when Mnangagwa offered the proverbial carrot she did not hesitate to bite. In fact, she swallowed it whole.

That carrot came in the form of the Political Actors Dialogue (POLAD), a platform that Mnangagwa established ostensibly to promote dialogue between his party and the opposition. The strategic purpose of POLAD was to dilute the voice of his main opponent, Nelson Chamisa, and the MDC Alliance who were challenging his legitimacy after a highly controversial election.

While Chamisa and the MDC Alliance rejected the invitation to join POLAD, Khupe and a host of other minor figures who had thrown their hat into the presidential ring in 2018 saw it as an opportunity to take a seat on the gravy train. Instead of politics of opposition, Khupe chose appeasement, rapprochement, pacification.

She thought it was better to appease the Mnangagwa regime than to continue challenging it. The political choir at POLAD did not just decide to sing for their supper. They also morphed into opposition to the main opposition. ZANU PF was their new ally while erstwhile comrades at the MDC Alliance were the new enemy. Mnangagwa saw an opportunity in the ructions between the former comrades.

Metaphorically speaking, POLAD is to Mnangagwa what a school assembly is to a headteacher. He tells them what he wants, and they listen and obey. While they might have a view, and they are permitted to share it, ultimately it counts for nothing. It is his word that always carries the day.

For that reason, POLAD remains an exercise in grand political deception. It is part of Mnangagwa’s theatre, a façade designed to hoodwink the international community into believing that Mnangagwa is tolerant and is in genuine dialogue with the opposition.

To believe that is as good as an adult believing in Santa Claus. The only reason Mnangagwa tolerates POLAD members is that he knows they are desperate for attention and opportunities and they do not pose a threat to his power.

Vengeful politics

What is on show is a classic case of vengeful politics. Chamisa and the MDC Alliance’s rejection of POLAD hurt Mnangagwa and ZANU PF. The protests by MDC Alliance MPs added salt to the gaping wound. They had to be punished. To be sure, the MDC made a mess of its succession politics after the death of its founding leader Morgan Tsvangirai. But the organisation had long resolved its internal affairs.

It had held a Congress. Its legitimacy as the main opposition had already been sealed after the 2018 elections when Chamisa amassed over 2 million votes and the MDC Alliance took control of most urban seats in Parliament and 98 percent of urban councils.

This had to be undone and the dismantling began when the judiciary overlooked the resolution of internal irregularities and ordered the MDC-T, a part of the MDC Alliance to revert to old structures and hold an Extraordinary Congress.

It is this judgment that created the judicially constructed MDC-T that has been used improperly to attack the very foundations of the MDC Alliance. It is also this judgment that has been used to unlock the backdoor for Khupe and her band of allies to enter Parliament as representatives of the same people who rejected them.

There cannot be many times in this world when a person who lost elections returns to be the representative of the people against their will and that person still claims to be a democrat and a constitutionalist.

In such circumstances, most decent people would be restrained by a personal sense of embarrassment at the idea of reaping where they did not sow. This is foreign to Khupe and her band of allies who proudly walked into Parliament and swore by the holy scriptures as they took their ill-gotten seats. They campaigned against the political party that won those seats, yet they are occupying the same seats.

It started with the recalls of MDC Alliance MPs by the judicially constructed MDC-T, which was condoned by the Speaker of the National Assembly and the President of the Senate, both of whom are senior members of Mnangagwa’s party. Apart from constituency-based seats, some were proportional representation seats (PR seats), both in the Senate and the National Assembly.

These seats had to be filled. However, the Mnangagwa regime knows the constituency-based seats are likely to be retained by the MDC Alliance, causing embarrassment to the judicially constructed MDC-T led by Thokozani Khupe.

The regime has used the COVID-19 pandemic to dodge by-elections by suspending them, an illegality which I discuss in the second part of this BSR. But while banning competitive by-elections, the regime permitted the filling of PR seats. These seats are not contested. The law allows the political party which held the PR seat to nominate a replacement. It is through this avenue that Khupe and her allies have found a way into Parliament.

Referee’s incompetence and bias

But how could Khupe enter Parliament when the seat she was taking was held by the MDC Alliance? This is where the electoral referee, ZEC comes in. There is incompetence. Then there is bias. ZEC suffers an affliction of both vices and few instances demonstrate this than its handling of the replacement of PR MPs. Here is why:

PR seats are allocated based on the number of votes that a political party wins in a province. 3 political parties won PR seats in the 2018 elections: ZANU PF, MDC Alliance, and the MDC-T, which was led by Khupe at the elections. These political parties submitted party-lists of their PR candidates to ZEC and it was from those lists that winning candidates were selected.

By law, if vacancies arise during the term of Parliament, the political party which presented the party-list has the right to nominate a replacement. Therefore, when vacancies arose in seats that were held by the MDC Alliance, ZEC had to invite the MDC Alliance to nominate a replacement. ZEC did not do that. Instead, ZEC invited the judicially constructed MDC-T although it never presented a party-list of candidates in the 2018 elections.

By inviting the judicially constructed MDC-T to submit nominations, ZEC had changed the rules of the game. The formula that was used to allocate seats in terms of the Electoral Act only recognised 3 political parties: ZANU PF, MDC Alliance, and the MDC-T led by Khupe.

The judicially constructed MDC-T was not part of that formula as an autonomous entity. It never submitted a party-list. Yet this is the political party that ZEC invited to submit nominations to fill seats that had been won and allocated to the MDC Alliance.

It is not just that ZEC is incompetent. The electoral referee knew what it was doing. It had no legal basis for inviting a party that had never submitted a party-list in the general elections. It is a clear institutional bias in favour of Mnangagwa’s ally. What ZEC did is like awarding the trophy to a team that never played a match during the competition after losing in the preliminary rounds.

Proportional to votes for which political party?

There is another way to demonstrate the absurdity of ZEC’s handling of this matter. I have already stated that PR seats are allocated based on the number of votes obtained by a political party in a province. For purposes of the election, the MDC Alliance was duly recognised and treated as a political party.

The PR seats held by the MDC Alliance were, therefore, based on the number of votes won by the MDC Alliance as a political party. They were not based on the number of votes won by the different parties that made up the MDC-Alliance. If that were the case, the composition of Parliament would be very different.

Now, since Khupe and her allies are PR MPS, the question that ZEC must answer: upon which votes and for which political party are they proportional representatives? It cannot be based on votes for the judicially constructed MDC-T because it never contested in the 2018 elections and never submitted a party-list to ZEC. They can only be proportional representatives based on votes won by the MDC Alliance.

But the official notice from ZEC describes them as proportional representatives of the judicially constructed MDC-T, a party which was never part of the formula for allocating PR seats in 2018. There is no factual or legal basis for what happened. What has happened is that ZEC has stolen seats belonging to the MDC Alliance and reallocated them to the judicially constructed MDC-T which was never recognised as a distinct political party in the 2018 elections. The cold reality is that Khupe and her allies are PR MPs by fraud and therefore illegitimate.

Challenging ZEC’s mishandling of objections

The procedure for replacing MPs allows for objections. It has been reported that there were more than 10,000 objections submitted by members of the public in affected provinces. Most of these objections came from members of the MDC Alliance who were arguing that they did not want Khupe and her allies to be PR MPs because they had rejected them in the 2018 elections. A ZEC statement issued this week simply states that:

“Regarding the filling in of Proportional Representation (PR) seats, the Commission received several objections but found that there were no valid grounds for objecting to the list of submitted candidates”.

This statement is vague and embarrassing. The facility for objections imposes an obligation on ZEC to ensure that rules of administrative justice are observed. One of the rules is that whenever an adverse decision is made, the administrative body must furnish adequate reasons for it.

This enables the affected person to understand why the decision was made. This broad statement by ZEC falls short of the standards of administrative justice. ZEC must provide adequate explanations as to why it decided that the objections were invalid. The broad dismissal suggests that ZEC did not give due consideration to each of the objections.

There are legal grounds to challenge ZEC’s handling of these objections. Section 68 of the Constitution provides for the right to fair administrative justice to which each of the objectors is entitled. Section 69 also provides for the right to a fair hearing.

The nonchalant treatment of the objections by ZEC does not meet the standards set in these constitutional provisions. The right to political representation is a fundamental right guaranteed in section 67 of the Constitution and it is flagrantly violated by the imposition of political rejects as representatives of citizens.

ZEC does not seem to have met its duties under the Constitution, which includes the requirement to safeguard and protect fundamental rights and freedoms. Considering the adverse consequences and the precedent-setting character of this decision, there is good ground to challenge ZEC’s approach to these objections.

Overall, the entire process reeks of illegitimacy and lack of fair play which have become the hallmarks of the Mnangagwa regime. Unfortunately, illegitimacy has consequences that are harmful to the entire nation as Zimbabwe is treated by the rest of the world as a pariah state.

It is hard to persuade serious investors to come to a country where rules can be switched midway through the game. When the consequences of illegitimacy are visited upon the regime, it complains. By aiding and abetting the political theft from the MDC Alliance, the electoral referee has played the role of enabler of authoritarian rule.

The illegality of suspending of by-elections

This week the Mnangagwa regime issued yet another illegal decree, Statutory Instrument 225A of 2020. The purpose of the decree, which was issued by the Minister of Health Rtd. General Constantino Chiwenga, is to suspend by-elections citing the COVID-19 pandemic as the reason. However, the decree is fraught with illegality.

There are four major reasons for the illegality of SI225A of 2020:

First, the decree is inconsistent with the Constitution. Section 2 of the Constitution provides that as the supreme law of the country, any law, custom, or practice that is inconsistent with the Constitution is invalid to the extent of that inconsistency.

The decree is inconsistent with the Constitution because according to section 158(3) of the Constitution the holding of by-elections is mandatory. They “must take place within ninety days after the vacancies occurred”. The decree purports to suspend the holding of by-elections. This contradicts the mandatory requirement in the Constitution. This inconsistency means the decree is invalid and illegal.

The second reason is that since the decree is issued through subsidiary legislation, it cannot lawfully change the effect of a constitutional provision. It is an elementary rule that subsidiary legislation cannot amend superior legislation. This prohibition is stark in the case of a constitution. Section 134(a) of the Constitution prohibits the delegation of Parliament’s primary law-making power.

The amendment of the Constitution can only be done by Parliament through primary legislation. This decree is made by the Minister of Health and Child Care. The suspension of by-elections is a de facto amendment of section 158(3) of the Constitution. It cannot lawfully be done through subsidiary legislation as this decree purports to do.

The third reason is that subsidiary legislation cannot purport to do what its enabling legislation cannot do. The Public Health Act, under which the decree was issued has no capacity to amend or vary the provisions of the Constitution.

That can only be done through a constitutional bill. For that reason, SI225A of 2020 is illegal because it seeks to do what the Public Health Act could never do. After all, section 134(c.) of the Constitution clearly provides that “statutory instruments must be consistent with the Act of Parliament under which they are made”.

The fourth reason for illegality is that the decree violates and limits fundamental rights contrary to section 134(b) of the Constitution. This section prohibits subsidiary legislation from violating or limiting fundamental rights and freedoms.

It states that statutory instruments “must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights”. The suspension of by-elections limits political rights under section 67 of the Constitution, which include the right to vote. It also limits freedom of expression under section 61 as voting is an expression of political choice.

This does mean these rights and freedoms cannot be limited. What section 134(b) does, however, is to prohibit the use of subsidiary legislation to be used for such qualification of rights and freedoms. The reason for this is simple.

Subsidiary legislation is made by one person or institution without the participation of Parliament. In this case, the illegality is not only that rights and freedoms have been limited, but that this has been done using a statutory instrument, which is prohibited by the Constitution.

ZEC’s misguided justification

The argument used by ZEC to justify the suspension of by-elections is wrong and misguided. ZEC stated that “The prolonged suspension of by-elections owing to the prevalence of the COVID-19 pandemic is a response to public health concerns and permissible in a democratic society in terms of section 86(2)(b) of the Constitution.”

Section 86(2)(b) allows for the restriction of qualified rights “only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom”.

There are two reasons why this justification is misguided. First, ZEC failed to distinguish two separate issues. The first is the fact that the decree contradicts and violates section 158(3) of the Constitution and is invalid based on section 2 of the Constitution. This argument has nothing to do with human rights and therefore section 86 is not engaged at all.

The second reason is that this justification is based on the legality of “a law of general application”. It must be a valid law for section 86(2)(b) to apply. The provision does not save an invalid law. It cannot, therefore, save SI225A of 2020 because, as already argued, it is an illegal decree. Section 86(2)(b) would only apply if the suspension of by-elections had been done under valid legislation.

It is surprising that ZEC issued such an incompetent justification and made these elementary errors of law when it is led by a judge of the High Court, Priscilla Chigumba. The Constitution specifically requires the chairperson to be a judge so that they use their knowledge of the law and promote fair play.

ZEC also has lawyers among the commissioners in addition to more lawyers in its legal department. It can also rely on the Attorney General who is the legal adviser to the government. All of them missed these elementary points, namely that section 86(2)(b) has no relevance to the illegality of the statutory instrument for being inconsistent with section 158(3) and in any event, cannot and does not apply to restrictions on human rights imposed by illegal legislation.

Political opportunism and expediency

But the ZEC lawyers were not the only ones whose vision was dimmed by the fog of ignorance. The Secretary-General of the judicially constructed MDC-T, Senator Douglas Mwonzora also trotted out the same justification at his party’s press conference.

It is regrettable that Senator Mwonzora, with whom I sat on the same side during the constitution-making process and led the defence of section 134 which limits the use of subsidiary legislation failed to appreciate the illegality of using a statutory instrument to effectively amend the Constitution and to limit rights and freedoms. We took this position recognising how the Mugabe regime had developed a culture of using subsidiary legislation to subvert the institution of Parliament.

Now, however, Senator Mwonzora sees nothing wrong with the misuse of subsidiary legislation in this instance because it is politically expedient. He boldly described it as “fair” and worse, erroneously thought section 86 was applicable. Section 86 does not save the violation of section 158(3) and in any event, it does not save a restriction of human rights under invalid legislation.

Constitutionalists do not defend or rationalise blatant breaches of the national constitution. The government had a clear avenue to achieve the same purpose without surreptitiously amending the Constitution.

As I explained in the legal opinion for ERC, that avenue is provided for in section 113 of the Constitution, which allows the government to declare a State of Public Emergency. To be sure, it is an extreme measure, but it is the legal way to do it instead of using a statutory instrument to suspend a provision of the Constitution.

Fear of electoral competition

It is not surprising, however, that the judicially constructed MDC-T is quite comfortable with a situation where by-elections are suspended. The current honeymoon it is enjoying comes from the benevolence of the Mnangagwa regime and state institutions like ZEC, the courts, and Parliament. It has very little confidence in the public market of voters.

That is why it is only too happy to fill in the PR seats that were won by the MDC Alliance but has no appetite for constituency-based seats because they must be fought for in a competitive process. While PR seats are handed on a silver platter, constituency-based seats have the potential to cause the judicially constructed MDC-T a huge amount of embarrassment.

As for ZANU PF, it has little interest in the by-elections because they are largely in the MDC Alliance strongholds. For ZANU PF, the prospect of MDC Alliance victories in by-elections would only strengthen the enemy and disturb the narrative that the MDC Alliance is in disarray.

On the other hand, massive defeats for the judicially constructed MDC-T would disrupt the façade that the regime is trying to build around its surrogate as the legitimate opposition.

These strategic concerns, not the COVID-19 pandemic, are the real reasons why the regime has suspended by-elections. The hypocrisy is evident in that the same regime is relaxing regulations in other areas citing the decrease in the COVID-19 concerns.

ZANU PF has also continued to hold primary elections even after the regime issued the decree suspending by-elections. It is not as if COVID-19 has special rules towards ZANU PF primary elections different from by-elections, which the regime has banned.

It is the same double standards that explain why Senator Mwonzora backed the suspension of by-elections at a press conference where he was announcing dates for his party’s Extraordinary Congress, events of an electoral nature which will involve public gatherings.

How does one support a ban on national elections citing COVID-19 while at the same time preparing for the party electoral events of a public nature as if they are exempt from the COVID-19 pandemic? The reason for the lack of consistency can only be explained by opportunism and political expediency. Suspending by-elections has little to do with the COVID-19 pandemic and more to do with political gamesmanship.

The Mnangagwa regime has lived up to the predictions that some authoritarian regimes would take advantage of the COVID-19 pandemic to limit rights and freedoms and strengthen their hold on power. In this case, it is doing so with the aid of former opposition elements who have given up on the idea of opposing the regime in favour of the politics of appeasement and accommodation.

If there was any doubt about the stench of illegitimacy around this regime, the elevation of Khupe and her allies into Parliament clears it all. Few countries or investors except those of a rogue variety will take Zimbabwe seriously as long as its regime promotes illegality and illegitimacy in the conduct of public affairs.