Electoral court orders Mugabe to fix by-election date

BULAWAYO - The Electoral Court has ordered President Robert Mugabe to gazette in the next fortnight, the date for the sitting of a nomination court to accept prospective candidates for the Pelandaba-Mpopoma Lower House constituency by-election.

Justice Nicholas Ndou made the ruling at the High Court in Bulawayo last Friday, in a case brought to the court by an independent candidate in the constituency, Job Sibanda.

The House of Assembly election in the constituency was postponed on the eve of the March 29 general election after the death of Milton Gwetu, who was representing the Movement for Democratic Change faction led by Professor Arthur Mutambara.

Sibanda, a prominent Bulawayo lawyer, had approached the Electoral Court to compel, President Mugabe, the first respondent to fix the date for a by-election in the Bulawayo constituency.

The applicant contended that by delaying a by-election in the area, President Mugabe was violating the Electoral Act.

In his judgment, seen by zimbabwejournalists.com Ndou also ordered President Mugabe to bear the costs of the application.

“The respondent be and is hereby ordered and directed,” said Ndou in the judgment, “to take steps to publish in the government gazette in the shortest possible time in not more than 14 days of this order,
the sitting of the nomination court in order to accept nominations for the Pelandaba-Mpopoma parliamentary constituency.”

The judge said Mugabe must also take the necessary steps in terms of Section 39 (2) of the Electoral Act to have a by-election conducted in the constituency.

Sibanda is one of the eight candidates who successfully filed their nomination papers in February this year, ahead of the general election.

Information and Publicity Minister, Sikhanyiso Ndlovu, who has lost in the constituency since 2000, veteran opposition politician, Paul Siwela are some of the other candidates who has successfully filed their nomination papers before the election in the constituency was deferred.

Ndou said the applicant is being prejudiced by the delay in the holding of the by-election.

“After the nomination court sitting in February 2008, and during the campaign period,” said the judge, “the applicant traveled the length and breath of the constituency, canvassing for support. He addressed
numerous meetings and gatherings. The applicant avers that his support was growing with each meeting that he addressed. He distributed thousands of fliers in an effort to sell himself to the electorate.”

Sibanda also composed a song in his honour while a play has also been written and staged. 

The judge said, although the Zimbabwe Electoral Commission (ZEC), chief elections officer, Lovemore
Sekeramayi had, in terms of sections 39 (2) b, and 50 notified the president of the death of Gwetu well before the March 29 elections, the respondent had not gazetted the date for the sitting of the nomination court within the required 14 days of such communication from the ZEC head.

The Pelandaba-Mpopoma Lower House constituency is one of the three where by-elections are pending following the deaths of two candidates. Both candidates like the Pelandaba-Mpopoma one belonged to MDC-Mutambara camp.

The other constituencies are Redcliff in Midlands province and Gwanda North, in Matabeleland South.

No dates have also been set yet for the sitting of the nomination courts in Redcliff and Gwanda North. Ndou found no merit in the argument by a defence lawyer, a U. Mabhiza that ZEC does not have funds to hold the by-election in the time the applicant sought.

The judge said since ZEC is an autonomous body, in terms of Section 61 (5) of the Constitution of Zimbabwe, President Mugabe’s lawyer cannot speak on behalf of ZEC on matters that concern the electoral
management body.

“In the circumstances,” said Ndou, “the respondent cannot use this argument of lack of resources to ward off the order sought in this
application. It is really up to the Zimbabwe Electoral Commission to fight its battles, so to speak. In the circumstances, this argument of lack of funds should fail.”