ZANU PF strategists are poring over the Electoral Act in a bid to scuttle Ezra Tshisa Sibanda and Eric Knight’s political ambitions, New Zimbabwe.com has learnt.
The two former Radio 2 DJs plan to run for MP in general elections set to be held this year.
Zanu PF strategist Professor Jonathan Moyo, in an informal briefing with journalists, suggested the two UK-based parliamentary aspirants faced major legal hurdles.
Sibanda wants to run on an MDC-T ticket in the Zanu PF-held Midlands constituency of Vungu, while Knight is throwing his hat in Mbare – also for the same party.
The two men must first win tightly-contested primary elections before they get the party ticket.
Moyo said: “It's not a surprise that to qualify for their primaries they must show British residence. But to qualify to contest elections in Zimbabwe, they must demonstrate that they were resident in the country for 12 continuous months preceding the elections.
“It’s not only their names which have a common E, their intentions to contest elections in Zimbabwe also have a common problem. They cannot rectify it in time for elections.”
Moyo’s argument is based on a reading of Section 23 (3) of the Electoral Act dealing with “residence qualifications of voters”. It provides for the removal by the constituency registrar of individuals from the voters roll on the disqualification or death of such persons, or their absence from their constituencies for more than 12 months or the redomiciliation of such persons in another country.
We asked five lawyers for their opinion on Moyo’s reading of the Electoral Act – and all five said any attempts to bar Sibanda and Knight would likely come to grief.
MDC leader Professor Welshman Ncube, a constitutional lawyer, said: “If they are registered as voters, and as long as they are back in Zimbabwe by the sitting of the nomination court, I can’t see anything to stop them from participating in elections.”
Alex Magaisa, a former law lecturer who is now Prime Minister Morgan Tsvangirai’s Chief of Staff, said Moyo’s interpretation was “selective and incorrect”.
He explained: “A close reading of Subsection 3 of Section 23, shows that a person who is registered in terms of the proviso to subsection 1 is exempt from the residence requirement. The proviso to subsection 1 states that ‘if a claimant satisfies the Registrar-General of voters that he or she is or intends to be a candidate for election as a member of Parliament for a particular constituency in which he or she is not resident, the claimant may be registered as a voter in that constituency’.
“Eric Knight and Ezra Sibanda and indeed many other aspiring candidates that are not resident in the prospective constituencies fall into that category. When you read the subsection 3 on the residence requirement which applies to all other voters, it specifically makes an exception in regards to the special category of persons who are registered under the proviso to subsection 1, i.e. non-resident persons who are or intend to be candidates for election as MPs.
“There are probably many aspiring candidates who do not reside or have not resided for a continuous period of 12 months in the constituencies which they aspire to represent.”
Taffy Nyawanza, a UK-based Zimbabwean lawyer, added: “Section 23 of the Electoral Act is what is known as a ‘durational residence requirement’. The overriding part of section 23 is the part which says ‘subject to the Constitution’. The provision in question must therefore be interpreted to comply with the Constitution and in particular, not to offend against the provisions relating to the fundamental freedoms of assembly, association and movement.
“There are therefore three main ways to argue this; first, that such a requirement of minimum residency for a parliamentary candidate offends against the fundamental freedoms protected by the Constitution on the basis that it is not reasonably justifiable in a democratic society; or second; that it offends because it is unreasonably long and is therefore arbitrary or; three; that in any event the petitioners have always had their domicile in Zimbabwe; domicile being a nuanced way of arguing residency.
“Ezra and Eric will likely be met with the argument that the Constitution itself lists in its Schedule 3 the same 'durational residence requirements'. However, in the famous Munhumeso case of 1994, the Supreme Court of Zimbabwe ruled that in a situation where there is inconsistency between separate provisions of the Constitution, the Constitution must always be interpreted in favour of the liberty of the petitioner.”
Brighton Mutebuka, who runs a Leeds law firm in England, said that particular section of the Electoral Act was “poorly drafted” – but insisted that it was unlikely it could be interpreted to thwart Sibanda and Knight’s political ambitions.
He told New Zimbabwe.com: “The key issue is the interpretation of the following provision: ‘a claimant shall be deemed to be residing in a constituency while he or she is absent therefrom for a temporary purpose’.
“Who determines or interprets what is a temporary purpose? I have looked at Section 4 of the Act which deals with interpretation to see whether the term is defined in the Act but it clearly isn't.
“Given this state of affairs, and given how poorly drafted the provision is – it is open to being interpreted widely – it follows that there is nothing that can stop Ezra and Eric to argue that they were in the UK for a ‘temporary purpose’. This can include being in the UK for the purposes of education and employment.
“Further, continued ownership of immovable property, remittances of money for the payment of rent or rates or similarly related expenses in the relevant constituencies would seem to suffice with regard to the issue of intention to return.
“Judges often refuse to interpret poorly drafted legal provisions narrowly, particularly in situations that involve the interpretation of fundamental human rights such as the right to vote.”
Lance Mambondiani, a New Zimbabwe.com columnist and legal expert, appeared to agree with Moyo only in so far as ordinary voters were concerned, but suggested Moyo had “misread the provisions in the Electoral Act regarding the eligibility of aspiring MPs.”
“In my view, the Act would prohibit voters who have not been resident in a constituency from 12 months from voter registration, but exempt prospective MPs from the 12 months residency rule. If the Act were to be applied strictly, the restriction would not apply to the prospective Diaspora MPs,” he said.
“Section 23 (1) generally outlines that for anyone to be eligible for registration as a voter, you need to be a resident of that constituency at the time. However, an exemption is made for prospective MPs. For example, if an MDC-T or Zanu PF candidate wants to be an MP in a constituency in which they are not resident, they can be registered as a voter in that constituency provided they satisfy the Registrar General that they are indeed a prospective MP.
“Subsection 2, then clarifies the term ‘resident’ and the circumstances under which a person can be disqualified for registration. Firstly, a person is still deemed to be residing in a constituency if you have been absent for a temporary purpose.
“The contentious provision which have been interpreted to exclude MDC-T candidates from the Diaspora from eligibility is subsection 3, which disqualified voter registration for people who have not been residing in a constituency for a continuous period of twelve months. However, that disqualification specifically excludes 'a voter who has been registered in that constituency in terms of the proviso to subsection (1)’.
“The exclusion from the 12 month residency requirement refers specifically to those people who are registered in a constituency in terms of section 23 (1) by virtue of be