Daniel Nemukuyu Senior Court Reporter
A BID by former Zanu-PF secretary for Administration Mr Didymus Mutasa and his nephew Mr Temba Mliswa to stop by-elections in Headlands and Hurungwe West went up in smoke yesterday when the Constitutional Court threw out the pair’s legal challenge for lack of merit.
The by-elections will proceed on June 10 as proclaimed by President Mugabe, should they become necessary by the close of the Nomination Court on April 8.
Messrs Mutasa and Mliswa were expelled from Zanu-PF for undermining the party and its leadership despite several warnings against doing so.
National Assembly Speaker Advocate Jacob Mudenda expelled the pair from Parliament in terms of Section 129 (1) (k) of the Constitution and declared their seats vacant.
Adv Mudenda, President Mugabe and chairperson of the Zimbabwe Electoral Commission Justice Rita Makarau were listed as respondents in the court application.
Chief Justice Godfrey Chidyausiku, sitting with eight other judges, dismissed the application with costs yesterday.
Reasons for the court’s decision will be released soon.
“The court has considered the papers filed and submissions made by counsel and came to the unanimous conclusion that the application in this matter is devoid of merit.
“It is hereby dismissed and costs are awarded to the respondents.
“Reasons (for the decision) to low,” ruled the court.
The court also querried the two’s failure to cite Zanu-PF in the proceedings when it had a substantial interest in the matter.
Speaking after the court session, President Mugabe’s lawyer Mr Terrence Hussein said the court ruling cleared the way for the holding of by-elections.
“By-elections will now go ahead without any hindrances.
“The court had no trouble in dismissing the case because it lacked merit,” said Mr Hussein.
Professor Lovemore Madhuku, who represented Mr Mutasa and Mr Mliswa, accepted defeat.
“We accept the verdict. The Constitutional Court is the highest court of the land and its decision is final.
“We presented our arguments but they have not been accepted by the Constitutional Court,” said Prof Madhuku.
Mr Simplisius Chihambakwe, who acted for the National Assembly Speaker, described the development as a victory for his clients.
“We have won the case and we are very happy for the victory. Justice has been done and the human rights pertaining to our clients have been upheld,” said Mr Chihambakwe.
A bid by Prof Madhuku to panel-beat the duo’s defective draft order on the eleventh hour failed after the court turned it down.
Through their lawyers Nyakutombwa, Mugabe Legal Counsel, Messrs Mutasa and Mliswa filed an application challenging their dismissal from Parliament.
The lawyers argued that Zanu-PF did not follow due process in expelling the two, hence the National Assembly Speaker’s decision to declare their seats vacant was a nullity.
Messrs Mutasa and Mliswa allege that their expulsion from Parliament violated their constitutional rights, hence the decision must be nullified.
They claimed their right to equal protection of the law as enshrined under Section 56 (1) of the Constitution of Zimbabwe was violated by the conduct of Adv Mudenda.
The duo’s right to stand for election for public office, if elected, had also been violated by the Speaker’s declaration of March 3 this year, they argued.
They also argued that their right to administrative justice as protected by Section 68 of the Constitution had been infringed by the March 3 announcement.
Adv Mudenda said the pair’s expulsion was above board as proper procedures were followed.
He confirmed that Zanu-PF’s 6th National People’s Congress held last December was legitimate and the resolutions passed were above board and binding on party members.
He questioned why Mr Mutasa did not take the appropriate action(s) to interdict the alleged illegal congress and Politburo meetings as well as the disciplinary hearing if he was concerned, as he claimed in his papers.
Adv Mudenda said the expulsion from Parliament of the two did not bar them from contesting the by-elections as independent candidates.
He said the exercise was intended to give the voters of Headlands and Hurungwe West constituencies an opportunity to express their wish in the changed circumstances.
President Mugabe, through his lawyer Mr Terence Hussein of Hussein and Ranchhod, insisted that he acted within the confines of the law when he fixed the dates for by-elections in the two constituencies.
He said the relief sought by Messrs Mutasa and Mliswa was overtaken by events since he had acted in terms of the Constitution and published the proclamation calling for the by-elections in the two constituencies.
The President further argued that his involvement in the matter ended with calling for by-elections upon receiving advice of vacancies from the Speaker of the National Assembly in terms of the Constitution and the Electoral Act.