Legal Opinion: Why the Suspension of By-Elections is Unconstitutional and Illegal

This is a legal opinion concerning the illegality of a government decree suspending by-elections on account of the COVID-19 pandemic.

On 30 September 2020, the government issued Statutory Instrument 225A of 2020 entitled Public Health (COVID-19 Prevention, Containment, and Treatment) (Amendment) Regulation, 2020 (No. 4) hereafter “the COVID-19 regulations”).

The regulations have two effects. The first effect is to suspend the holding of any by-election to fill a casual vacancy in Parliament and local authorities during the period that the declaration of COVID-19 as a formidable epidemic disease is in force. In other words, there will be no by-elections if the government’s declaration concerning COVID-19 is operational.

The second effect is that if a vacancy occurs during that same period, the time shall not be counted for purposes of calculating the period within which a by-election should be held in terms of the law. In so doing, the regulations purport to amend section 158(3) of the Constitution of Zimbabwe which requires a by-election to be held within 90 days of the occurrence of a vacancy in Parliament.

These regulations are illegal for several reasons including:

• Their invalidity due to inconsistency with the Constitution,
• The legal point that COVID-19 regulations cannot amend the Constitution,
• They violate a number of rights and freedoms,
• COVID-19 regulations are ultra vires the Public Health Act,
• The regulations conflict with the election management body.

Read the full analysis here (1MB PDF)

Source: Election Resource Centre (ERC)