Lloyd Gumbo : Senior Reporter
Opposition parties protesting for the “electoral reforms” under the National Electoral Reform Agenda at the Zimbabwe Electoral Commission (ZEC) are in violation of the Constitution that stipulates that independent commissions are not subject to the control or influence of anyone, legal experts have said. MDC-T, MDC and Zimbabwe People First wanted to hold violent demonstrations against the ZEC on Friday last week demanding what they called “electoral reforms”.
But the Constitution on Chapter 12, Section 235 on independence of commissions says: “(1) the independent commissions;
(a) are independent and are not subject to the direction or control of anyone;
(b) must act in accordance with this Constitution; and
(c) must exercise their functions without fear, favour or prejudice; although they are accountable to Parliament for the efficient performance of their functions.
(2) The State and all institutions and agencies of Government at every level, through legislative and other measures, must assist the independent commissions and must protect their independence, impartiality, integrity and effectiveness.
(3) No person may interfere with the functioning of the independent commissions.”
ZEC is one of the independent commissions together with the Zimbabwe Human Rights Commission, the Zimbabwe Gender Commission, the Zimbabwe Media Commission and the National Peace and Reconciliation Commission.
Legal practitioners who spoke to The Herald said holding demonstrations against any of these commissions was in contravention of the supreme law of the land.
Mr Tendai Toto said freedom of assembly, demonstrations and expression were fundamental human rights guaranteed in Sections 58, 59 and 61 of the Constitution of Zimbabwe.
“The exercise and enjoyment of which must be within the bounds and requirements of the law,” said Mr Toto.
“Care and caution must be exercised when allowing demonstrations against the Chapter 12 independent commissions, to do so without a just assessment of the validity, justification and objective reasonability of the compelling causes for the demonstrations consequences of which can create and achieve possible intimidation of commissions in general and interference with the functioning of the independent commissions as provided for in Section 235 (3) of the Constitution.”
He said anyone with genuine complaints against ZEC and its officials could approach the courts to raise their concerns.
“It is self-destructive to our democracy and unjustified initiatives to collapse the Chapter 12 independent commissions if anyone is given the robotic green light to take to the streets a wish list of allegations against, in this case, ZEC without the presentation of evidence of frustrated attempts and willingness to seek lawful and procedural redress in a competent forum such as the Electoral Court and or petitions that seek the invalidation of the composition of ZEC, personnel appointments and or alleged illegal and unlawful activities perpetrated by ZEC.
“Interested parties are often resourced to enforce the legal rights that pertain to electoral processes in Zimbabwe, otherwise Zimbabwe can easily plunge into a pronounced democracy of demonstrations,” said Mr Toto.
Zanu-PF deputy secretary for legal affairs and former co-chairperson of the Parliamentary Constitution Select Committee, Cde Paul Mangwana, said political parties or any organisations were not allowed to interfere with the operations of ZEC.
“It is clear that by demonstrating against ZEC, they are violating that Section (235) of the Constitution,” he said.
“They are trying to influence how the commission runs the elections, which is a contravention of the Constitution and the Electoral Act.
“They are putting undue pressure on the ZEC chairperson and the commission, which is outright interference with the functioning of the com- mission.”
Former Deputy Minister of Justice, Legal and Parliamentary Affairs and member of the Parliamentary Legal Committee, Cde Fortune Chasi, said all independent commissions were sacrosanct and accountable only to Parliament for the purposes of efficient performance of their duties.
“A broad interpretation of the Constitution suggests a clear duty on the part of everyone and this includes individuals, political parties and the State and all its organs to support and protect independent commissions of which the Zimbabwe Electoral Commission is part.
“This is why this commission has a separate budgetary line and this is meant to ensure that it is not controlled by anyone via the provision of its finances.
“And so the Constitution is very explicit in its statement that no “person may interfere with the functioning of the independent Commissions.”
“In my view, given that elections are the gateway to democracy, any conduct that is calculated to interfere with the operational work of the Commission ought to be directly criminalised and supported by severe penalties,” said Cde Chasi.
He said individuals and political entities could make suggestions in electoral reforms to Parliament and not ZEC.