HARARE – A last ditch effort to compel the Zimbabwe Electoral Commission (ZEC) to register candidates in six National Assembly seats appeared to have failed on Wednesday after a court order was granted after the 4PM closure of the nomination court.

ZEC said the judgement of Justice Never Katiyo was unenforceable.

The dramatic events came after ZEC were forced, 24 hours earlier, to scrap the planned registration of candidates for Nkulumane, Mbizo, Kambuzuma, Mutasa South, Pumula and Harare East constituencies after a different High Court judge ruled that there were no vacancies.

Justice Katiyo, in an ex parte ruling where the other parties were not given chance to present arguments, said the ZEC order was “null and void for lack of legality.”

The judge directed that the nomination court must receive papers for prospective candidates in respect of the six constituencies where the MPs – all former members of the People’s Democratic Party – were purportedly recalled from parliament.

ZEC, in response, said the ruling was now water under the bridge.

“This court order was served at 4.55PM after the nomination courts had closed and it became a legal impossibility to implement. Nomination courts close at 4PM in terms of the law. ZEC will be guided on the way forward by legal instruments or orders to be issued in terms of the law,” the elections body said.

Three High Court judges have already ruled that a faction of the PDP which purported to make the recalls had no authority to do so, the latest Justice Tawanda Chitapi who ruled on Tuesday that there were no vacancies in the six constituencies.

The affected six lawmakers who now members of the Citizens Coalition for Change (CCC) are Tendai Biti, Settlement Chikwinya, William Madzimure, Sichelesile Mahlangu, Regai Tsunga, and Kucaca Phulu.

CCC spokesperson Fadzai Mahere said the court drama appeared to be a “deliberate ploy to ensure these MPs don’t return to parliament.”

“We are steadfast on the fact that the citizens must be at the centre of all decision-making, the most critical decision being that of who should represent them in parliament. It is not ZEC that just decides. It is not the courts that must decide. It is the people. No amount of dirty tricks can stop a citizen-driven idea whose time has come,” said Mahere.

Phulu, who was MP for Nkulumane, said because Katiyo’s court order was provisional, they may be compelled to oppose it before it is confirmed.

“As far as we are concerned there are no vacancies in the six constituencies. But if there should be by-elections, we will welcome the opportunity to go back to the people if that is the quickest path back to parliament,” Phulu said.

“An important fact that Zimbabweans must never lose sight of, however, is that the will of the people has been subverted, and we must channel all that outrage to the cause of restoring our country to a country of laws, decency and legitimate government.”

By-elections will be held on March 26 in 22 parliamentary races and 119 municipal seats, according to ZEC.

TIMELINE OF RECALL OF BITI AND 5 OTHERS

November 2020 – PDP faction attempts to recall MDC Alliance councillors in Harare, formerly members of PDP

December 2020 – Biti and 5 other MPs write to the Speaker of Parliament advising him to disregard recall letters from the PDP faction, should they come. They don’t stop there, they file court application seeking declaration that Benjamin Rukanda – purporting to be PDP secretary general – has no authority to recall them

March 17, 2021 – Speaker of Parliament Jacob Mudenda receives recall letters from Rukanda, and expels the six lawmakers

April 2021 – Justice Amy Tsaga of the Harare High Court grants order declaring that the recall of the six MPs was null and void. Mudenda is served with the order, but says Rukanda has appealed

April 2021 – The six lawmakers return to the High Court, this time seeking a comprehensive order which declares present PDP not the party of the MDC Alliance, and the recalls null and void. They also seek a specific order directing the Speaker of Parliament to restore them to the National Assembly. Mudenda and the Zimbabwe Electoral Commission tell the court they would be bound by its ruling

September 2021 – The judgement is out. Justice Joseph Mafusire orders Mudenda to re-admit the MPs in parliament, and again finds that Rukanda has no authority to recall the MPs. Mudenda says he will readmit the MPs if there is no appeal

September 2021 – Right on cue, Rukanda purports to file an appeal at the Supreme Court. Lawyers for the six argue that appeal does not suspend a declaratur, but Mudenda declines to readmit them

January 2022 – Supreme Court throws out Rukanda’s appeal on a technicality. Registrar advises Rukanda that he did not pay security costs and his appeal has been struck off the roll

January 6, 2022 – President Emmerson Mnangagwa issues proclamation for by-elections in 28 vacant National Assembly seats, including for the six MPs

January 25, 2022 – On the eve of the sitting of the nomination court, the High Court hears an urgent chamber application filed by the six. They are arguing that there are no vacancies in their constituencies, citing the High Court judgements. After arguments, Justice Tawanda Chitapi agrees, and issues order that there should be no by-elections in respect of the six seats. The Zimbabwe Electoral Commission issues notice that the proclamation of vacancies in the six seats is withdrawn

January 26, 2022 – On the day of the nomination court sitting, Rukanda returns to the High Court on an urgent basis. He wants the court to declare as unlawful ZEC’s cancellation of the six races. Justice Katiyo grants an ex parte (without hearing the other side) judgement which says ZEC’s actions were illegal and directs the nomination court process per the presidential proclamation. ZEC says it was served with the order just before 5PM, when the nomination court closed at 4PM. It says Katiyo’s order is “unenforceable” as the proverbial horses have bolted

Now – The status of the six lawmakers remains in limbo. Rukanda is reportedly trying to revive his Supreme Court appeal but must first apply to the High Court for its re-instatement. He must satisfy the court that appeal is not frivolous. Parliament is in recess, and the six will once again six re-instatement when it reopens on the basis that there is presently no appeal in any court in Zimbabwe