Takunda Maodza and Daniel Nemukuyu
MDC-T yesterday made a dramatic U-turn and nominated elected councillors as mayors for Harare and Chitungwiza in line with the dictates of the new Constitution, exposing the party legal department’s ignorance of the Constitution. The embattled opposition party also withdrew an application that sought to compel the Ministry of Local Government, Rural and Urban Development to allow non-councillors to stand as mayoral candidates after realising that they had approached the wrong court.
MDC-T lawyers from Mwonzora and Associates, filed the urgent chamber application at the Electoral Court, but Justice Lavender Makoni agreed with the lawyer for Local Government Mr Joseph Mandizha that the court had no jurisdiction to hear the matter.
According to Mr Mandizha, the matter had nothing to do with elections. Instead, it should have been filed at the High Court.
MDC-T lawyers then made a U-turn and quickly withdrew the application.
Party leader Mr Morgan Tsvangirai had vowed to defy the Constitution by choosing unelected councillors as mayors.
MDC-T had nominated outgoing Justice and Legal Affairs deputy Minister Obert Gutu and Mr Isaac Manyemba as mayors for Harare and Chitungwiza, respectively.
It had also nominated Mr Mandla Nyathi as mayor for Bulawayo. The three are not elected councillors.
In light of outgoing Local Government, Rural and Urban Development Minister Ignatius Chombo’s insistence that mayors come from elected councillors; and in the wake of some tongue-lashing from constitutional law experts like NCA chairperson Professor Lovemore Madhuku, MDC-T made a humbling climbdown yesterday.
The party has now nominated Ward 2 councillor Mr Phillip Mutoti as Chitungwiza mayor and a Ward 9 councillor who was only identified as Mr Manyenyenye as Harare mayor.
MDC-T spokesperson Mr Douglas Mwonzora confirmed the development.
“What has happened is that we are making contingency plans just in case we do not get the relief we want from the courts. If the court says we should not choose non-councillors as mayors, we then go to our plan B.”
Mr Mwonzora refused to name the elected councillors that were nominated as mayors by MDC-T.
“We are not in a position to disclose names until plan B comes to fruition,” he said.
Sources at Harvest House yesterday said the party summoned all Harare and Chitungwiza councillors and announced the climbdown.
“The party has made a U-turn on the issue of mayors and recalled Mr Obert Gutu and Mr Isaac Manyemba who it had deployed in Harare and Chitungwiza, respectively.
“They are going to recall other mayors that had been deployed in other towns across the country where MDC-T won majority votes. The decision was taken after the leadership realised it was wrong on its earlier position of nominating unelected councillors.
“All elected councillors from Harare and Chitungwiza were summoned to Harvest House today (yesterday). That is where the new development was explained to them. New interviews were held and new faces emerged.”
On Tuesday, MDC-T filed an urgent chamber application with the Electoral Court seeking an order blocking Minister Chombo from interfering with the election of mayors.
The party argued that Section 49 of the Urban Councils Act allows for an outsider to be elected as mayor.
“Section 49 of the Urban Councils Act provides for qualification of mayors. It clearly does not disqualify anybody who is not an elected councillor, to stand as mayor.
“Section 103 of the Urban Councils Act as amended by Section 22 of the Local Government Laws Amendment Act 1 of 2008 clearly stipulates that mayors can be elected from councillors or other persons. It therefore allows for the election of mayors from persons outside councils,” said MDC-T secretary for local government Blessing Chebundo in an affidavit supporting the urgent application.
Professor Madhuku, however, expressed shock at the MDC-T’s ignorance of provisions of the Constitution saying the section of the Urban Councils Act that the MDC-T leaders were relying on had since been invalidated by provisions of the new Constitution.
an elected councillor. The Urban Councils Act still provides that any person may be elected as mayor like what happened with Mr Muchadeyi Masunda but that position has now been invalidated by the new Constitution in Section 265 (2),” Professor Madhuku said.
Mr Masunda was elected Harare mayor when he was not an elected councillor using provisions of the Urban Councils Act because the new Constitution was not yet promulgated.
Reads Section 265 (2) on general principles of provincial and local government: “All members of local authorities must be elected by registered voters within the areas for which the local authorities are established.”
Professor Madhuku said the interpretation of the above section hinges on the meaning of the word “member”.
“A person cannot be a member of a local authority without having been elected. The only persons elected currently are councillors and only one of the councillors may become a mayor. Section 265 (2) admits of no other interpretation except that which says a mayor is a member and therefore must be elected by elected voters,” he said.
Prof Madhuku accused lawyers within MDC-T of either being ignorant of Constitutional provisions or being deliberately dishonest.
Minister Chombo had vowed to thwart the MDC-T’s intentions to impose unelected councillors as mayors attracting fierce criticism from Mr Tsvangirai.