All military moves require military response. Now that ZEC has Gazette a list of what it regarded as MDC T party list replacing incumbent members for ceasing to belong to MDC T it has legally settled the dispute that was there if ever there were vacancies on MDC A party list members.
1) In terms of s2 of Zimbabwe constitution
2 Supremacy of Constitution
(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them.
Section 2(1) is very clear any ZEC Gazette which is inconsistent to Zimbabwe constitution is invalid to the extend of its inconsistency.
2) The constitution is clear in terms of s120(2) and s124(2)
(S120)(2) Elections of Senators must be conducted in accordance with the Electoral Law, which must ensure that the Senators referred to in subsection (1)(a) are elected under a party- list system of proportional representation—
(a) which is based on the votes cast for candidates representing political parties in each of the provinces in the general election for Members of the National Assembly; and
(b) In which male and female candidates are listed alternately, every list being headed by a female candidate
S124(2) Elections of Members of the National Assembly must be conducted in accordance with the Electoral Law.
These are the two provisions that establish how members of parliament get into parliament.
The said electoral Law is established by s157 of constitution. In particular to this matter is s157 (1)(d)(i).
157 Electoral Law
(1) An Act of Parliament must provide for the conduct of elections and referendums to which this Constitution applies, and in particular for the following matters—
(a) the periodic delimitation of constituencies and wards in accordance with section 161;
(b) the registration of voters , and requirements for registration on particular voters’ rolls;
(c) a code of conduct for political parties, candidates and other persons participating in elections or referendums;
(d) a system of proportional representation for the election of persons to the seats in the Senate referred to in section 120(1)(a) and the seats reserved for women in the National Assembly referred to in section 124(1)(b), and the procedure for filling vacancies in those seats, which vacancies must be filled by persons —
(i) belonging to the same political parties as those who previously held the seats; and
(ii) of the same gender as the persons who previously held the seats;
(e) the election of representatives of
Persons with disabilities under section 120(1)(d);
(f) the conduct of elections to Provincial and metropolitan councils and local authorities;
(g) challenges to election results.
(2) The system of proportional representation provided for in terms of subsection (1)(d) must ensure equal representation of women among the Senators referred to in section 120(1)(a).
(3) The Electoral Law must provide for the nomination of candidates in any election to take place at least fourteen days after the publication of the proclamation calling for that election.
Polling must take place at least thirty days after the nomination of candidates.
4) No amendments may be made to the Electoral Law, or to any subsidiary
legislation made under that law, unless the Zimbabwe Electoral Commission has been consulted and any recommendations made by the Commission have been duly considered.
(5) After an election has been called, no change to the Electoral Law or to any other law relating to elections has effect for the purpose of that election
It is clear that our constitution requires MPs require to be elected by Electoral Law and our Constitution requires that vacancies of proportional representatives be replaced by person from same political party
Now that the Gazette 2553 of 2020 is out The MDC A MPs who were constitutionally elected after their party MDC A submitted names of office bearers in terms of s38A of electoral act and submitted party list names at the nomination court in terms of s45E on a prescribed form and upon counting of election results a declaration was made in terms of s45I(3) which declaration is final and can only be altered by an electoral court.
To date no electoral court has sat to declare the party list duly elected members of MDC A was invalid or should belong to another party.
While we waited for these months to see if our party MDC A that signed our nomination papers had actually recalled us. It is now evident that we were never re called.
We have not ceased to belong to MDC A and no one has recalled us from MDC A.
By s2(1) of Zimbabwe constitution we pronounce our restatement to parliament. We do not need a directive of anyone on an action that is a nullity because its null.
Here we come with a bang