Continued suspension of by-elections amounts to violation of the right to universal suffrage as provided for in Section 67 of the Constitution. The suspension was also in breach of the Electoral Act and Sections 258 and 259 of the Constitution of Zimbabwe. According to the International Institute for Democracy and Electoral Assistance (IDEA), the circumstances under which a person’s suffrage rights may be curtailed or suspended, must be justifiable only by exceptional circumstances or according to accepted principles. The State has used the COVID-19 pandemic as an excuse for indefinitely postponing the pending by-elections in 133 wards and constituencies. This was despite ZEC having developed a COVID-19 policy on electoral activities with clear guidelines on how by-elections and other electoral processes would be conducted without exposing those involved to health risks. In postponing the by-elections indefinitely through SI225A, the state has argued that the pandemic has created exceptional circumstances that warrant limiting the citizens’ right to vote, as provided for in Section 67 of the Constitution. Although the pandemic has been used as a scapegoat to justify limiting the right to vote in by-elections, there are other underlying politically motivated reasons for suspending the by-elections.
The pending by-elections in Zimbabwe are not just ordinary by-elections. Conducting 133 by-elections in less than 24 months before the general elections can be tantamount to conducting an exit poll for the 2023 general elections. Considering the time by which they are likely to be held (just before the general elections), the outcome of these elections can be used as a litmus test to gauge the support of the contesting parties in the 2023 by-elections. It can be argued that voting patterns in those 133 wards and constituencies where by-elections will be held will not change in the 2023 general elections. It can also be argued, however that subjecting the electorate to two electoral processes in less than 24 months may result in low voter turn-out as citizens are subjected to perpetual voter registration and inspection, voter mobilization, voter education and campaigning for lengthy periods of time, making the whole process, boring, tedious and cumbersome. Additionally, the fact that most of the by-elections are in urban areas contributes less to the appetite of the ruling regime to push for them, but rather to maintain the status quo of a depleted opposition going into 2023 elections.
A Scared Regime
Most of the pending by-elections were triggered by the recalls of MDC Alliance MPs and Councilors by the MDCT. It can be argued that these recalls seemed to be more politically than legally inspired. This buttresses the idea that the recalls were part of a plot by ZANU PF to weaken the MDC Alliance. In his Big Saturday Read of 5 May 2020, Alex Magaisa argued that the recalls were part of ZANU PF’s “strategy of lawfare against the democratic movement in Zimbabwe”. He further argued that the recalls were a strategy carefully engineered from the authoritarian regime with the cooperation of willing opposition elements to split the MDC Alliance and to leave its leader, Nelson Chamisa vulnerable. Conducting by-elections can therefore be antithetic to this strategy as it can result in a possible rebound of MDC Alliance in the wards and constituencies where its Councilors and MPs were recalled. The likelihood of MDC rebound in these wards and constituencies is made higher by the fact that most of the recall induced by-elections are in urban areas, which are traditional MDC Alliance strongholds. Having 133 wards and constituencies vacant is a status quo which is part of ZANU PF gamesmanship. The continued suspension of by-elections is a strategy to maintain this status quo. It is not the Zimbabwe Electoral Commission which suspended elections. It is the Minister of Health and Child Welfare, who is the Vice president and the Second Secretary of ZANU PF who did so. It is him who will lift the suspension. The biggest question is why the suspension is not being lifted under level 2 lockdown? Zimbabwe’s neighbors in the SADC region; Malawi, Zambia and South Africa have all conducted elections during the COVID-19 pandemic.
An Enabling Election Management Body
According to the International Institute for Democracy and Electoral Assistance (IDEA), the functioning of the Electoral Management Body, which in Zimbabwe’s case is ZEC, should not be subject to the direction of any other person, authority or political party. What this effectively means is that ZEC must function without political favoritism or bias. It must be able to operate free of interference, simply because any allegation of manipulation, perception of bias or alleged interference will have a direct impact not only on the credibility of the body in charge but on the entire election process. In addition to the insufficiency of provisions to eliminate the appointment of partisan Commissioners, the impartiality and independence of ZEC is seriously undermined by ministerial interventions. SI 225A which suspended by-elections, is an example of how the mandate, independence and impartiality of ZEC has been undermined by ministerial interventions. One can argue that SI225A is at odds with the goal to create an independent electoral authority and with the claim that, except for the Constitution, the Commission shall not be subject to the direction of any person or any authority.
As an electoral authority which should be independent, one can argue that it is the Zimbabwe Electoral Commission which should authorize or suspend by-elections. Another example of ministerial intervention which impede the independence of ZEC is the fact that while ZEC has power to make regulations to conduct its functions, these regulations only take effect after they have been approved by the Minister. Discord between ZEC and Ministry of Health and Child Care has been apparent with regards to the COVID-19 induced suspension of by-elections. With regards to the latter, ZEC itself has openly argued that SI225A is standing in the way of the holding of by-elections. While ZEC has argued that SI225A is standing in the way of by-elections, the Ministry of Health and Child Care has argued that the ministry was not responsible for stopping by-elections as it did not have the role to supervise elections. In this regard, the ZEC Road Map Towards By-Elections in 2022 is merely a proposal as its implementation is subject to the repeal of SI225A by the Minister of Health and Child Welfare. Such is the gravity of ministerial interventions in the operation and functions of ZEC. Ministers in Zimbabwe are politicians who, when making decisions, put their political interests ahead when making decisions.
An Indifferent Citizenry
It has already been argued in this paper that the indefinite suspension of elections violates the Zimbabwean citizens’ right to elect and be elected. As stated earlier, most of the pending by-elections were triggered by recalls. What this effectively means is that recalling elected Councilors and MPs subverted the will of those who had voted for those candidates into office. This subversion of the will of the people who voted for their candidates into political office can only be corrected if by-elections are conducted wherein the will of the people can be asserted again. This was not done
Civic engagement is the ability to limit/check state power, provide alternative channels for representing interests, and strengthen state–society relations. It entails organizing and persuading others to take action, navigating the political system, consensus building toward the common good, listening to diverse perspectives and forming positions on public issues Besides the High Court challenge of the suspension filed by Women Academy for Leadership and Political Excellence (WALPE) and the Election Resource Centre (ERC), there was not much pressure from the citizens against the indefinite suspension of elections directed at both the government and the Electoral management Body. In a country where civic engagement is high, pressure should have mounted from across the whole spectrum of the Zimbabwean society challenging SI225A. According to the Afro-barometer report of 2016, citizen engagement is at its lowest level in a decade. The Zimbabwean public is disinterested in the political affairs of the country. This is even evidenced by lower turnouts in public activities including those organized by CSOs, public disinterest in political affairs of the country has made it easier for ZANU PF to undermine, reverse and subvert the will of the people without any ramifications on their part. Although it was difficult for Zimbabweans to organize themselves and persuade others to challenge the indefinite suspension of elections due to the COVID-19 induced restrictions, there were alternative and innovative ways of applying pressure against the suspension of elections at the disposal of the citizens. These include digital advocacy, online organizing, online petitioning of ZEC, Parliament of Zimbabwe and the Ministry of Health, just to mention but a few.
The delay in conducting by elections is thus a result of a combination of factors anchored on a scared ruling regime, an enabling election management body and an indifferent citizenry. Efforts to change the status quo must address citizen agency for a bottom up approach to advocacy and pressure. The courts must be inundated with applications while the Parliament of Zimbabwe must be petitioned. Equally, political parties need to energize their bases for more pressure lest the country demobilizes into an autocracy.
IDEA, International Electoral Standards Guidelines for reviewing the legal framework of elections
 IDEA, International Electoral Standards Guidelines for reviewing the legal framework of elections
 ZESN Statement on Continued Suspension of By-Elections