CALLING new elections is a “limited prerogative” of President Robert Mugabe and neither the Zimbabwe Electoral Commission nor its chairman can order elections, the Bulawayo High Court has heard.
The argument was heard as ZEC chairman Justice Simpson Mutambanengwe and the ZEC opposed an application by three former MDC MPs expelled by their party who want by-elections to be urgently held in Lupane East, Nkayi South and Bulilima East constituencies.
Justice Mutambanengwe said he had been wrongly cited as the first respondent in the matter, and the ZEC second, as neither he nor the electoral body can make such a proclamation.
The former MPs cited Mugabe as the third respondent, although he is yet to respond to their application.
Through his lawyer George Chikumbirike, the ZEC chief said Section 39 of the Electoral Act (Chapter 2:13) set “very distinct procedures” over how the ZEC gets involved in the electoral process.
He said: “That proclamation (of elections) in terms of Section 39 of the Electoral Act falls within the limited prerogative of President Mugabe, who is the third respondent in the application. In the absence of such proclamation, the ZEC cannot conduct elections.
“It follows therefore that no action, seeking to compel the chairman of the ZEC and the ZEC to conduct an election, can be entertained by this Honourable Court at this juncture.”
Abednico Bhebhe (Nkayi South), Njabuliso Mguni (Lupane East) and Norman Mpofu (Bulilima East) were expelled by the MDC led by Arthur Mutambara in July 2009 following misconduct hearings.
The MPs filed papers in the High Court on August 2 this year seeking an order compelling the ZEC, Mutambanengwe and Mugabe to announce the date for by-elections within 14 days of the order being granted.
There are currently 20 vacancies in the Senate and the House of Assembly occasioned by the death of lawmakers, lengthy court convictions or expulsion by their parties.