Local electoral monitoring think tank the Election Resource Centre (ERC) says the Covid-19 regulations cannot amend the Constitution as it is subsidiary legislation.
Last month the Zimbabwe Electoral Commission announced that by-elections for both Parliament and council were going to be held on December 5. However, Health Minister and Vice President, Constantino Chiwenga announced that the environment is not conducive to hold elections owing to the Covid-19 pandemic.
In an analysis of the decision to indefinitely suspend the by-elections, ERC said the Covid-19 regulations had effects on the Constitution therefore illegal.
“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,” noted ERC
The electoral think tank said the regulations cannot by law amend the Constitution since they are subsidiary legislation.
“The second point is that regulations cannot legally amend the Constitution. It is trite that subsidiary legislation cannot lawfully amend superior legislation, let alone the Constitution. This rule has constitutional authority in section 134(a) which prohibits the delegation of Parliament’s primary law-making power.
“It is well established that the Constitution can only be amended by Parliament through a Constitutional Bill. This is part of Parliament’s primary law-making power that cannot be delegated to the Minister of Health and Child Welfare to change the effect of provisions on by-elections. The COVID-19 regulations represent an attempt to unlawfully amend the Constitution through the agency of the Minister of Health.”
The regulations, ERC says, are illegal because they cannot do what the primary legislation under which they are made is incapable of doing and they violate certain fundamental rights and freedoms which is contrary to section 134(b) of the Constitution.