ConCourt hears case by Zanu PF activist that could upend delimitation

HARARE – The Constitutional Court on Thursday began hearing an application by a Zanu PF supporter seeking to force the Zimbabwe Electoral Commission (ZEC) to restart the process of delimitation of constituency boundaries.

Tonderai Chidawu wants the apex court to also nullify proceedings that took place in parliament since a preliminary delimitation report was tabled on January 6 for lack of compliance with the constitution.

At the heart of the legal fight is whether an unsigned draft delimitation report presented to President Emmerson Mnangagwa by ZEC on December 26, and tabled in parliament days later, was a product of ZEC as a body corporate, or just two members of the commission.

Chidawu, whose application is supported by the affidavits of two ZEC commissioners, is arguing that the draft report was overwhelmingly rejected by seven of the nine ZEC commissioners, and should not have been forwarded to the president.

Chief Justice Luke Malaba was on Thursday expected to hear arguments from Chidawu and parliament’s lawyers to decide if the application should be heard as an urgent matter.

The legal fights over the draft delimitation report, which was severely criticised by both Zanu PF and opposition MPs, could result in elections due in the second half of this year being held under old constituency boundaries drawn over 10 years ago.

The row has also brought to the fore Zanu PF factional fights amid revelations that Acting President Constantino Chiwenga and spy boss Isaac Moyo are backing ZEC chairperson Justice Priscilla Chigumba and her deputy Rodney Simukai Kiwa, the two commissioners who backed-up the draft report, while President Emmerson Mnangagwa and his lieutenants would like to sink the draft report and hold elections using old constituency boundaries.

Mnangagwa, ZimLive understands, has been shown analyses suggesting that there was gerrymandering done by ZEC to whittle down Zanu PF’s parliamentary majority leaving him exposed to removal through an impeachment process by Chiwenga-aligned Zanu MPs and the opposition Citizens Coalition for Change, should he win elections.

Such has been the intensity of the fights that Chidawa says in his Constitutional Court application that he was “detained by unknown state agents who were threatening me not to proceed with my court application.”

“They tortured me and only released me after two days. It was only after that horrible incident that I managed to get in touch with my legal practitioners to sign this affidavit,” Chidawa says.

In his affidavit, Chidawa – a former student leader in the Zanu PF-aligned ZICOSU – says that he wrote to parliament asking it to investigate whether the draft delimitation report was the work of the entire commission or just Justice Chigumba and Kiwa, her deputy.

The Speaker of Parliament Jacob Mudenda, he charges, “refused to investigate and determine whether or not the report it is deliberating on was an act of ZEC as a body corporate as required by the constitution, or the report was by one or two members of ZEC, and thus contrary to the constitution.”

He anchored his application on a letter sent to President Mnangagwa by seven other commissioners stating that they rejected the draft delimitation report.

Chidawa adds: “It is my respectful belief that no reasonable person applying his or her mind to the document signed by seven out of nine members of ZEC would fail to conclude that there is a reasonably strong basis for the suspicion that the preliminary delimitation report tabled in parliament and currently being debated is not an act of ZEC as a body corporate…”

In an affidavit accompanying Chidawa’s application, one of the commissioners Cathrine Mpofu states: “I confirm that the draft of the preliminary report was presented to a duly convened meeting of the ZEC on or about December 6, 2022. It was not adopted. On the contrary, it was rejected by seven of the nine members of the Zimbabwe Electoral Commission.

“There is no duly convened meeting of the ZEC that resolved to adopt the preliminary delimitation report. There is also no duly convened meeting of ZEC that resolved to submit the report to the president.

“Despite rejection by a duly convened meeting, the chairperson of the commission, Honourable Justice Priscilla Chigumba, insisted that the report would still be presented to the president for tabling in parliament. She said she was not bound by the position adopted by the overwhelming majority of the members of the commission.”

A second affidavit comes from commissioner Shepherd Manhivi, who tells the Constitutional Court that he “would have readily given all this information to parliament had it bothered to investigate whether or not the preliminary delimitation report before it was an act of the commission or of one or two of the commissioners.”

Chidawa and his lawyer Professor Lovemore Madhuku are praying for an order by the court declaring that parliament “failed to fulfil its obligations of protecting the constitution and ensuring the accountability of state institutions… by failing to determine whether or not the preliminary delimitation report tabled in parliament by the president of Zimbabwe was an act of ZEC as a body corporate as required by the constitution, or was a report by one or two members of ZEC and thus contrary to the constitution.”

Should the court grant that first part of the draft order, they want it to further direct that “as a consequence… that it be and is hereby declared that all the proceedings of the parliament of Zimbabwe in respect of the aforesaid preliminary delimitation report and all subsequent processes of the delimitation process under sub-sections 8, 9, 10 and 11 of section 161 of the constitution are null and void and of no force or effect.”

The draft order continues: “That parliament be and is hereby ordered to fulfil its constitutional obligation of protecting the constitution and ensuring the accountability of state institutions as set out in section 119 as read with section 235 of the constitution by determining whether or not the preliminary delimitation report tabled in parliament on January 6 by the president was an act of ZEC as a body corporate or was a report by one or two members of ZEC.

“That if parliament determines that the preliminary report tabled in parliament by the president was not an act of ZEC as a body corporate, it be and is hereby ordered that the processes of the delimitation process under sub-section 8, 9, 10 and 11 of section 161 of the constitution shall be done afresh.”

Only parliament is cited as a respondent in the application.

Parliament debated the draft delimitation report on January 17 and 18, and was expected to send its recommendations to Mnangagwa on January 19 for onward transmission to ZEC which will now go on to produce a final delimitation report.

Zimbabwe’s constitution says the delimitation of constituency boundaries must be done at least six months before the elections. In the event that it is completed less than six months to an election, the delimitation report cannot be used for that election but a future election.

Should ZEC be ordered to restart the delimitation process, legal analysts predict it is unlikely to complete the work in time to meet the election timeline. This would be a blow to the opposition which is targeting gains in constituencies in urban areas, particularly Harare, its traditional stronghold.

The term of the current parliament ends on July 28, the earliest date on which elections can be held by law. If the election is fixed on that date, ZEC would be required to publish the delimitation report by January 28.

The latest date elections can be held is August 26, and if polling day was set on that date, ZEC would need to publish their delimitation report not later than February 26.

Although desirable, Mnangagwa is not bound by ZEC’s delimitation processes in proclaiming an election date. Senior figures led by the justice minister Ziyambi Ziyambi and aides are reportedly urging him to go to elections using the old delimitation report, arguing: “If it ain’t broke, don’t fix it.”

Curiously, that is also the position of the seven rebel commissioners who said in their leaked December 6 letter to Mnangagwa: “We hereby resolve to put aside the draft delimitation proposal except as a reference point for a proper delimitation process to be conducted and wholly guided by the commissioners after the 2023 harmonised elections.”

Mnangagwa, who is set to return from leave next week, can call an election three months before polling date at the earliest, or 45 days to polling at the latest.

Zanu PF and CCC MPs were largely united in denouncing the ZEC draft delimitation report in parliament, pointing out that it failed to follow constitutional provisions on the minimum and maximum number of voters per constituency, as well as a poor distribution of polling stations.

During two days of debate, only one MP spoke out in support of ZEC – Mwenzezi West MP Priscilla Moyo, the wife of Central Intelligence Organisation director Isaac Moyo.

To jeers from opposition benches, Moyo said: “In Mwenezi… we are very happy with what ZEC came up with because it has equaled all the constituencies. Many a times we were voting with a lot of people and were being given the same Constituency Development Fund (CDF) and the same devolution funds.

“So, we are happy because the numbers have been equaled in all constituencies and there are also equal numbers in the wards. There were wards that did not have people and people were put into those wards. We are very happy as constituencies have been added because we were suppressed for a long time.”

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