Regularising the appointment of Hon. Cain Mathema as the sixth non-constituency Minister

Recent media reports have suggested that Obert Mpofu resigned his Matabeleland North senatorial seat to regularise the ministerial appointments made by the President. Obert Mpofu’s purported resignation would allow Hon. Cain Mathema to assume the vacant senatorial seat reducing the number of non-constituency Ministers to five in line with section 104(3) of the Constitution. Other quarters have suggested Hon. Mathema actually took oath pursuant to Section 128(1) of the Constitution to enable him, instead of Obert Mpofu, to take up the Matabeleland North senatorial seat. The purported resignation and assumption of the senatorial seat poses a few challenges.

Under section 129(1)(b) of the Constitution of Zimbabwe, “[t]he seat of a Member of Parliament becomes vacant upon the Member resigning his or her seat by written notice to the President of the Senate or to the Speaker, as the case may be.”

Such resignation triggers the provisions of section 39(3) of the Electoral Act [Chapter 2:13]. Under section 39(3),
“[I]n the event of a vacancy occurring among the party-list members of the Senate or of the National Assembly, otherwise than through a dissolution of Parliament, the President of the Senate or the Speaker, as the case may be, shall notify the [Zimbabwe Electoral] Commission of the vacancy, in writing, as soon as possible after he or she becomes aware of it.”
In turn, the Zimbabwe Electoral Commission [ZEC] has to, without delay, notify the public of the vacancy by notice in the Gazette and invite the political party in writing to submit the name of a qualified person to fill the vacancy. (section 39(4), Electoral Act). Upon being satisfied that the nomination papers are in order, the Commission will have to, without delay,
(a) notify the public of the nomination to fill the vacancy by notice in the Gazette, giving the name, address and such other particulars of the party-list candidate as it considers necessary in the interests of public information; and
(b) afford any person who is a voter to lodge any written objection (together with reasons for the objection) to the nomination within a specified time from the date of publication of the notice in the Gazette. (section 39(6), Electoral Act).
If there are no objections to the proposed party-list candidate or after the objections have been resolved, the Commission shall then notify the public by notice in the Gazette that the person nominated to fill the vacancy has been appointed as a member of the National Assembly with effect from the date of the notice.

The law thus requires Obert Mpofu to submit his written resignation to the President of the Senate who, in turn, has to notify ZEC of the vacancy. On its part, ZEC has to notify the public of the vacancy in the Gazette and invite ZANU-PF in writing to submit the name of a qualified male to fill the vacancy. Further, ZEC will have to Gazette the particulars of the nominee and afford the public a chance to lodge any written objection to the nomination. Only after the exhaustion of that process will the nominee be able to take oath before the Clerk of Parliament and takes his or seat in Parliament. Section 128(2), Constitution. It is worth noting that the oath envisaged under Section 128(1) only allows the Member of Parliament to take his or her seat in Parliament.

It is worth noting that it is not the act of taking oath that make one a Member of Parliament, but a declaration by a Provincial Elections Officer. Section 45I(1) of the Electoral Act provides that
Upon receipt of returns from all the constituencies . . ., the provincial elections officer shall determine . . . which of the duly nominated party-list candidates for the province should be declared elected, and shall forthwith declare those candidates to be duly elected as Senators, members of the National Assembly or members of the provincial council, as the case may be.
Further, under section 45I(3), a declaration by a Provincial Elections Officer under section 45I shall be final, subject to reversal on petition to the Electoral Court that the declaration be set aside or to the proceedings relating to the election concerned being declared void. In essence, the declaration by the Provincial Elections Officer that Obert Mpofu had been duly elected as Senator for Matabeleland North is final. He cannot therefore purport to relinquish his seat outside the confines of the law or using an arrangement that does not follow the procedures laid down by the law. Having Hon. Mathema take the oath in Obert Mpofu’s stead, as has been suggested in some quarters, cannot alter the declaration that Obert Mpofu was the duly elected Senator for Matabeleland North Province.

In conclusion, unless the provisions relating to the replacement of a Senator who has resigned to create a vacancy in the Senate have been followed, any purported replacement of a duly elected Senator with another is a nullity, even if they belong to the same party and are both agreeable to the same. The dictates of the Constitution and the electoral law must be followed.

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