First, it is important that a new election be held as soon as possible otherwise the business of parliament will be derailed. Section 39 of the Constitution of Zimbabwe (hereafter, "the Constitution") which requires the election of a Speaker of the House of Assembly makes it clear that this legislative chamber "shall not transact any other business until a person to fill that office has been elected". Parliament is a critical arm of government and it is important to ensure that it continues to conduct its business. The constitutional reform process is taking place within the structures of parliament. Constitution-making therefore, is parliament’s business and it would be unfortunate and wrong if this were to be derailed on this account.
Second, an issue that has been raised concerns the seat (Matobo South constituency) held by the erstwhile Speaker, Lovemore Moyo, before he was elected to the position that he has now lost. What is the legal position in respect of this seat? Can Moyo reclaim his seat in these circumstances? The apparent simplicity of the matter is quite deceptive.
In accordance with section 41(1) (g) of the Constitution, a person ceases to be an MP once he is elected to the position of Speaker. Under normal circumstances, once a person who is an MP has been elected as Speaker, a by-election should be held in accordance with the electoral laws. As presiding officer, the Speaker is required to perform his role free of any partisanship. To ensure that the constituency that had elected him retains proper representation, it is entitled to elect a new MP. The problem is that Zimbabwe’s circumstances are not quite normal – or at least they haven’t been for the last few years.
Hence, there has been no by-election since the 2008 parliamentary election, although I understand this is currently being challenged by some former MPs in the MDC led by Professor Welshman Ncube. They lost their seats after they were expelled by their party. The key point for present purposes is that there was no by-election in Matobo South constituency to replace Moyo after his election to the Speaker’s seat which the Court has now declared to have been null and void.
Now that Moyo’s election has been declared invalid, the critical question is whether at this point he would be entitled to revert back to his position as MP – which would entitle him to also vote for the Speaker in a new election? We will get back to this question but first let us clarify whether it is possible, as MP or not, Moyo would still be eligible to contest for the Speaker’s post again. In terms of the Constitution, Moyo can still stand as a candidate for the Speaker’s post even if he is not regarded as an MP. Section 39(2) provides for the election of a Speaker according to parliamentary Standing Orders of persons "who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers or Deputy Ministers" and where he is not an MP, must be "qualified according to Schedule 3 for election to the House of Assembly". Moyo has been a member of the House before and there is nothing to indicate that he is not qualified for election according to Schedule 3 of the Constitution. Therefore, the MDC-T is perfectly entitled to make him their candidate again.
But assuming that he does not run for the Speaker’s post, we revert to the critical question, academic though it might appear, given that the MDC-T has already indicated that Moyo will remain their candidate for the Speaker’s post – the question remains – would, having been deposed by virtue of a judgment declaring the Speaker’s election invalid, a person who was an MP be able to reclaim his seat?
In other words, did he lose his seat when he became Speaker by virtue of an invalid election or does he revert to his position as an MP now that the Supreme Court says he was never properly elected in the first place?
It would be odd if a person in Moyo’s position were to suffer what would in effect be double-jeopardy on account of a flawed election that was not his fault. If a court of law finds that the election was irregular and invalid, it is tantamount to saying there was never an election in the first place. To my mind, the loss of an MP’s seat that is provided for under section 41 (1) (g) is predicated on the validity of his election to the position of Speaker. If it is invalid he cannot be lawfully regarded as having been duly elected. The effect of the Supreme Court’s decision is not only that he is no longer Speaker but that he never was on account of a flawed election. It would be unfair and ridiculous in my opinion if a person who obeyed the command of his fellow MPs were to lose out (on both the Speakership and his parliamentary seat) simply because the election, which he had no control over, is later found to have been flawed.
I should point out, of course, that the matter would be more complicated if a by-election had been held in Matobo South and an MP had been elected to replace Moyo upon his election as Speaker. The complications would be greater if in a parliament where numbers are finely balanced that by-election had produced a winner from a different political party. But that matter does not arise and so it is not necessary to address it in the present circumstances.
The fact of the matter is that Matobo South constituency has had no substantive MP since Moyo’s elevation to the position of Speaker and now that his election has been found to have been no election at all, then surely it follows that he reverts to the position that he occupied prior to the flawed election. It was never an election at all and therefore requirements under section 41 (1 (g) which would necessitate the loss of his seat were not fulfilled.
Overall, as this note has shown, this is not a matter that the Constitution deals with in a manner that is clear and satisfactory. But as the current events demonstrate, it is one that requires clarification. These are matters that even last year’s constitutional outreach process might not have uncovered at all and will therefore need close attention at the drafting stage of the new constitution. One hopes it’s a matter that will not escape the attention of the draftspersons.
Magaisa is based at Kent Law School, University of Kent. This article was first published in ordinaryzimbabweans