Zimbabwe: Parliament Speaker Removed

Posted: 11/03/2011 in Constitution, Court, Herald, Lovemore Moyo, MDC, MDC-T, Parliament, Politics, ZANU-PF, Zimbabwe

IN a landmark ruling , the Supreme Court
yesterday nullified the election of Mr Lovemore
Moyo ( MDC- T ) as Speaker of Parliament , saying
the process was fraught with irregularities and
in breach of the Constitution of Zimbabwe .
Mr Moyo was elected Speaker in August 2008
after garnering 110 vo -tes against former MP
Mr Paul The-mba Nyathi who got 98 votes .
The majority decision was that the Clerk of
Parliament Mr Austin Zvo -ma did not properly
conduct the election as required by the
Constitution of Zimbabwe.
The ruling was made in an appeal in which
Tsholotsho North Member of the House of
Assembly Professor Jonathan Moyo ( Zanu- PF ) ,
together with Mr Moses Mzila Ndlovu , Mr Patrick
Dube and Mr Siyabonga Ncube all MDC MPs ,
were challenging the High Court decision that
validated Mr Moyo’ s election .
An appeal can be heard by three or more judges
of the Supreme Court and this particular one
was heard by five judges .
Mr Terence Hussein of Hussein and Ranchhod
law firm , appeared for the quartet while Ms
Choice Da-miso represented Mr Zvoma.
South African Advocate Matthew Chaskalson
acted for Mr Moyo.
Prof Moyo had argued that during the election ,
MDC-T parliamenta -rians were rowdy and some
of them brazenly exposed their completed ballot
papers before they deposited them in the ballot
box .
He had also accused Mr Zvoma of failing to
stamp his authority on the election process .
The effect of the judgment is that there is now a
vacancy for the post of the Speaker of
Parliament .
Mr Moyo, who gave up his seat as MP for the
Speaker ‘ s position , can now no longer sit in
Parliament .
He now has to cross his fingers that MDC-T will
nominate him for the post of Speaker and more
so that the party would be able to garner
sufficient votes to retain the position .
This is far from certain as the numbers and
dynamics in the House have completely changed
since the flawed election .
In the nullified election , six MPs Deputy Prime
Minister Thokozani Khupe , Tendai Biti , Piniel
Denga, Tall Chambati, Amos Chibaya and
Lovemore Moyo displayed their ba -llot papers
before depositing them in the ballot box .
Writing for the majority, Chief Ju-stice Godfrey
Chidyausiku ruled that the vote was not cast in
secrecy as required by the Constitution.
” Parliament is one of the most revered
institutions in any society. It consists of the
highest concentration of the political leadership
of the country . Parliament makes the laws that
we all obey.
” Parliament should , therefore , lead by example
and should scrupulously obey its own laws, ” said
Chief Justice Chidyausiku .
He added that the election of the Speaker
should be an example of how an election should
be conducted .
This, he said , was important in Zimbabwe , which
had been plagued by contestation of election
results.
” Parliament should use the election to set the
best example to the rest of the country . It is
unacceptable that Parliament should seek to
salvage a shambolic and chaotic election of a
Speaker through the doctrine of substantial
compliance ,” said the Chief Justice .
He said the six named MPs did not vote by
secret ballot and therefore , their votes were
irregular.
The inclusion of such votes in the determination
of the final outcome of the election , he said ,
constituted a failure to comply with Section 39
of the Constitution, as read with Standing Order
6.
The Order provides for the election of Speaker
of Parliament by secret ballot.
” The appeal is allowed with costs , to be paid by
respondents jointly and severally , the one paying
the other to be absolved .
” The order of the court a quo is set aside and
the following substituted . The application
succeeds and the election of second respondent
as Speaker is hereby set aside ,” ruled the Chief
Justice .
Justices Vernanda Ziyambi and Paddington
Garwe agreed with the judgment while Deputy
Chief Justice Luke Malaba and Justice Wilson
Sandura disagreed.
However , the Chief Justice ‘ s ruling is binding
since it had the majority favour .
Deputy Chief Justice Malaba felt that a voter was
perfectly entitled to reveal his vote during an
election.
In his dissenting judgment , Deputy Chief Justice
Malaba said there was no legal obligation that a
voter must vote secretly adding that he or she
may opt not to vote by secret ballot.
” As the voter must exercise the right to vote for
the Speaker by a secret ballot given on the
ballot paper freely, he or she can waive the right
to the secrecy of the ballot at the time the vote
is cast or at any time before he or she deposits
the ballot paper in the ballot box .
” A secret ballot is not compulsory insofar as the
voter who is not desirous of taking part in the
election by a secret ballot is concerned ,” said
Justice Malaba .
Justice Sandura noted that the Standing Order
was complied with in the election of the
Speaker .
He said of the 208 MPs who voted, only six ( 2 ,9
percent of the total ) displayed their marked
ballot papers before depositing them in the
ballot boxes .
Two hundred and two ( about 97 ,1 percent )
voted in accordance with the provisions of the
Sanding Order, Justice Sandura noted.
” Quite clearly , the degree of non-compliance
was insignificant , whereas the degree of
compliance was nearly one hundred percent .
” In the circumstances, as the object to be
achieved by the Standing Order was achieved
and not defeated or frustrated by the non-
compliance complained of , the degree of the
alleged non-compliance was insignificant. It
follows that the Standing Order was complied
with in the election of the Speaker ,” said Justice
Sandura

Fidelis Munyoro And Daniel Nemukuyu
Published by the government of Zimbabwe

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