In his court application, Mukudu said the move was not only irrational, but also infringed upon the independence of the Zimbabwe Electoral Commission (Zec) which has a constitutional mandate to implement electoral policies as set out in section 235 of the Constitution.
Mukudu joins nine other Harare residents who filed a similar court application last week.
Mukudu said he was seeking the intervention of the court to declare that Statutory Instrument (SI) 225A of 2020 Public Health COVID-19 Prevention, Containment and Treatment (Amendment) Regulations, 2020 (No 4) as unconstitutional and that it is ultra vires sections 56, 57 and 58(3) of the Constitution of Zimbabwe.
“I submit that the suspension of by-elections by the first respondent (Health minister) is challenged on the grounds that it is unlawful, irrational and unconstitutional,” he said.
“In these circumstances, there is no justification for the ban on by-elections. In addition, section 159 of the Constitution requires vacant elective public offices to be filled within 90 days, it follows, therefore, that the provisions of the Constitution must be respected, protected and fulfilled,” Mukudu said.
“With greatest respect, it is humbly submitted that the suspension of by-elections infringes upon the independence of the third respondent that has a constitutional duty to formulate electoral policies without the direction or control of anyone as set out in section 235 of the Constitution of Zimbabwe.”
Mukudu further said the suspension of by-elections by Chiwenga was not a result of transparent multi-stakeholder consultations with citizens, Parliament, political parties, the academia, civil society, the private sector, trade unions and the youths.
He added that President Emmerson Mnangagwa reasonably used his presidential powers in terms of the law and put in place reasonable measures to contain the COVID-19 pandemic, adding that the prohibition of large gatherings was reasonable, but these had been relaxed with certain conditions imposed so as to contain the spread of the pandemic.