MDC-M secretary general and Industry Minister Prof Welshman Ncube who also doubles as the moribund JOMIC co-chairperson is at the centre of all breaches by the coalition in staging by elections.
ARTICLE XXI of the Global Political Agreement (GPA) states;
“ELECTORAL VACANCIES
21. Electoral Vacancies
Aware of the divisive and often times confrontational nature of elections and by elections;
Noting the need to allow this agreement to take root amongst the parties and people of Zimbabwe; and
Cognisant of the need to give our people some breathing space and a healing period;
21.1 The Parties hereby agree that for a period of 12 months from the date of signing of this agreement, should any electoral vacancy arise in respect of a local authority or parliamentary seat, for whatever reason, only the party holding that seat prior to the vacancy occurring shall be entitled to nominate and field a candidate to fill the seat subject to that party complying with the rules governing its internal democracy.”
This wording is however omitted from schedule 8 of the Zimbabwe constitution and replaced with the following;
“20.1.10 filling of vacancies
In the event of any vacancy arising in respect of posts referred to in clauses 20.1.6and 20.1.9 above, such vacancy shall be filled by a nominee of the Party which held that position prior to the vacancy arising.”
Evidence at hand seems to point to the fact that president Mugabe is working towards a programme to fill vacancies in the Legislative assembly at the earliest opportunity after 15 September 2009.
At present there are 12 vacant seats 6 each in the Parliament and the Senate 11 of which must be filled through common roll by elections while the 12th must be filled by the Chiefs Council Electoral College.
There are a potential 3 vacancies that will arise in Parliament following the dismissal of 3 MDC-M MP’s should the party stick with its decision to dispense with the MP’s and officially notifies Parliament to that effect .
The split of the vacancies likely to be contested in by elections is;
Parliament
MDC-T: 6, Zanu PF: 5 MDC-M: 3 totalling 14.
SenateZanu PF: 4 and Council of Chiefs: 1 totalling 5
Factoring in changes reported in composition of Provincial Governors will result in the following voting strengths for the three parties that agreed not to contest each other for vacancies that arise in the Legislative Assemblies over a period of 12 months from the signing of the agreement on 15 September 2008;
Parliament
MDC-T as at 31 March 2008-100 elected plus 2 for PM& DPM less 1vacated by L Moyo less 5 suspended for criminal convictions pending on appeal leaving 96 seats secure.
Zanu PF as at 31March 2008-99 elected plus 2 for VP less 6 (5 deaths and 1VPMujuru replacement not named) leaving 96 seats secured.
MDC-M as at 31March 2008-10 elected plus 1forDPM less 3 expelled leaving a total of 8seats secured.
Independent as at 31 March 2008-1 elected remains unchanged.
Out of the expanded 215 Chamber there are therefore 201 secured seats leaving 14 seats up for grabs due in by elections distributed as follows MDC-T minus 5 Zanu PF minus 6 and MDC-M minus 3.
Bearing that one vacancy attributable to Zanu PF is a result of 1 seat allotted the party that has never been filled if nothing else happens between now and 15 September when the 12 months by election competition moratorium between the three parties in the coalition elapses Zanu PF will fill this vacancy without the need for a by election and have a majority of 1 seat in Parliament thereby overturning the advantage the MDC-T had over it.
Senate
Zanu PF as at 31 March 2008-30 elected plus 6 special Presidential appointees’ including 1 gained from GPA plus10 Provincial Governors less 11-1 vacated by Senate
President, 2 vacated by Governors 6 reassigned Governors and 1 never filled leaving strength at 36
MDC-T as at 31 March 2008-24elected plus 4 appointed from GPA plus 5 Governors leaving strength at 33.
Chiefs as at 31 March 2008-18 elected less 1 deceased leaving strength at 17.
MDC-M as at 31 March 2008-6 elected Plus 2 appointed from GPA leaving strength at 8.
The expanded upper chamber of 100 seats thus has 94 substantive members. MDC-T and M have nothing to lose in by elections as all vacancies affect the Zanu Pf allotment and the chiefs’ council.
For one reason or another Zanu PF thinks it is likely to fare better in by elections than it did in the harmonised elections.
It is widely believed that the reason for the overconfidence flowing in Zanu PF is that the Party believes it can deploy its violent election machinery more effectively in limited constituencies and bludgeon voters into voting it to restore its majority party status of years.
The presidential decree on national healing and reconciliation issued by the President covering the period 24-26 July 2008 is widely seen as a smokescreen for keeping the political competitors from other parties comfortable that the agreement on filling of vacancies in the Legislative assemblies will be upheld as long as the vacancies occurred in the 12 months period following the signing of the GPA.
The MDC-M has with that in mind swiftly moved to weed out MP’s it calls enemies from within hoping it will have the chance to nominate replacements who will only be contested by the expelled MPs as independents and other challengers from minor parties thus guaranteeing it retention of the seats and strengthening it.
Party secretary General Prof Welshman Ncube put up a brave face and declared that come what may his mediocre faction of the MDC will emerge stronger without the association with the expelled MPs.
But it is his attempt to justify prolonged breaches of electoral laws by the coalition government’s failure to stage by elections within the 30 day limitation that is instructive of the impunity developing in the coalition government that must be exposed.
This is the same sense of invincibility that led Zanu PF to transform from Liberation heroes to villains.
Prof Ncube displays an abundance of the arrogance in Zanu PF wherever he has been assigned.
That is why JOMIC has become a moribund institution that nobody really cares about notwithstanding the critical role it was established to fulfil in the implementation of the GPA.
Prof Ncube who co-chairs JOMIC is comfortable with the breach of the electoral laws concerning the holding of by elections to the same extent he appears contented with the comfort that the GPA provisions on the filling of electoral vacancies will prevail.
To that end he believes that it is proper that the by elections are delayed sine die as long as the Parliamentary Standing Rules and Orders Committee (PSROC) - where he is a member does not have anyone to push it to comply with electoral rules by notifying the Electoral commission that it must appoint in the first place to start the by elections process.
Prof Ncube says the GPA disallows subscribing parties from contesting each other in legislative vacancies that occur within 12 months of the signing of the agreement and thus the fears about such contests are misplaced.
Indeed the agreement does but by elections will not be staged in terms of the GPA clauses but in terms of the constitutional provisions as read with the Electoral Act.
Unfortunately these Laws do not have the GPA clause averred to by Prof Ncube to allay fears that the parties will contest each other after the 15 September 2009 deadline of the moratorium between the parties.
In any event Prof Ncube’s interpretation of clause 21.1 of the GPA is not immune to different interpretation which will justify parties contesting each other in by elections outside the prescribed 12 months following signing of the GPA.
The agreement says “Parties hereby agree that for a period of 12 months from the date of signing of this agreement, should any electoral vacancy arise in respect of a local authority or parliamentary seat, for whatever reason, only the party holding that seat prior to the vacancy occurring shall be entitled to nominate and field a candidate to fill the seat subject to that party complying with the rules governing its internal democracy.”
This can be interpreted to mean that any vacancy that occurs in the coalition over a 12 month period following the signing of the GPA cannot be filled by any candidate representing parties to the agreement other than the one that held the seat at the time of signing the GPA.
This is Prof Moyo’s interpretation. However the same clause can equally be interpreted to mean that for 12 months after the signing of the GPA subscriber parties undertook not to contest each other in any by election to fill the vacancy but thereafter open contests will be in conformity with the agreement regardless of whether the vacancy to be contested occurred during or after the prescribed 12 month period following signing of the GPA.
This is the argument that Zanu PF will advance and urge their President who also is the National president with powers to order by elections to be guided by.
The MDC-T seems unperturbed about what Zanu PF will do after the expiry of the initial 12 months of the signing of the GPA in respect of legislative vacancies.
The party seems more worried about the judicial persecution strategy directed against its MPs more than the prospect of contesting any willing contestant in by elections that are held in a transparent and credible manner.
The MDC-T fear is not contesting Zanu PF or any other party in by elections but rather that impunity and violence that epitomised previous contests will be resuscitated to give Zanu PF an advantage.
There is nothing the MDC-T likes more than contesting Zanu PF in all seats in the
Local authorities, Parliament, Senate and the Presidency provided the election is held in a credible free and fair environment for the party is confident Zanu PF will be walloped in such contests.
On that basis it may be unwitting for Zanu PF to believe that it will prevail in by elections if the MDC-T involvement in organising the by elections will guarantee credible contests.
Zanu PF confidence seems premised on the knowledge that it will not be dissuaded from employing violent electioneering tactics to improve its chances of forcing a win.
Other than that its representation will be reduced further in by elections.
Professor Ncube must not rely on an illegality to justify why by elections have been illegally delayed as he does when he says the by elections cannot be staged because the country does not have a legitimate Electoral Commission to run the by elections.
Being an officer of PSROC that is mandated to recommend the incumbents of the Electoral Commission to the President his excuse is an insult to the electorate.
Why has he not caused PSROC to move with speed in the fundamental task of putting together a legitimate Electoral Commission from 15 September when the GPA was signed to date?
The fact that he is comfortable with the absence of a legitimate electoral commission has everything to do with the fact that this JOMIC co-chairman is afraid of elections which will result in his party loosing further seats and would rather live with the false sense of security that his hopeless party thrives on.
That must be stopped and the PSROC must move with speed to recommend those to be appointed onto the Electoral commission and forthwith correct the anomaly before it becomes an acceptable impunity by the coalition government.
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