MDC-A legislators lose replacement case

Fidelis Munyoro Chief Court Reporter
MDC Alliance is defiant of the rule of law and bent on abusing court processes, a High Court judge found when dismissing the urgent bid by 14 legislators to stop MDC-T from replacing them in Parliament following their recall.

The 14 contested the 2018 harmonised elections on the MDC Alliance ticket. But the legal position is that the MDC-A was an electoral bloc formed by seven political parties in August 2017 to contest the 2018 harmonised elections with three of these parties being splinter groups from the original MDC. Thus any of the seven parties has the legal right under the Constitution to recall and replace those it nominated on the combined bloc list.

The MDC-T was the largest party in the MDC-A bloc, but the Supreme Court has found after a civil action that changes in the leadership since 2014 were not in accordance with the party’s own rules and nullified those changes, which included the elevation of Advocate Nelson Chamisa to MDC-T leadership. That meant that the MDC-T leadership of 2014 now runs the party and it is this leadership which is informing the Speaker of the National Assembly and the President of the Senate that certain members of the MDC-A bloc no longer represent their nominating party.

The two presiding officers then, in light of previous court judgments, have no discretion and simply have to declare the seats vacant. Once they have informed the Zimbabwe Electoral Commission, that body again has no discretion, but to start the process of having the seats filled.

The MDC-A has continually argued that it is a political party that replaced its the parties that came together, and that therefore those who were elected on its ticket belong to the MDC-A, not the original parties. But the MDC-A has been unable to persuade the courts.

Bacilia Majaya, Mucharairwa Mugidho, Annah Nyambo and Nomathemba Ndhlovu were all members of the National Assembly while Senators Gideon Shoko, Helen Zivira, Tapfumanei Wunganai, Meliwe Phuti, Phylis Ndlovu, Herbert Sinamapande, Keresencia Chabuka and Siphiwa Ncube were elected in July 2018 through proportional representation.

They lost their seats in June this year, in terms of section 129 (1) (k) of the Constitution, which empowers a political party to expel a member occupying a seat in Parliament as its representative in the event that the member ceases to be its member. They are challenging the validity of their expulsion from Parliament in terms of the cited provisions, saying they were elected on an MDC-A ticket and have nothing any more to do with the MDC-T.

But while that case gradually ascends the civil list to a court hearing, they were seeking a provisional order declaring their expulsion by MDC-T null and void, or at least to stop the process of filling their seats until the main case is decided.

But Justice Pisirayi Kwenda threw out their urgent chamber applications after they failed to prove that their recalls were unlawful. His judgment was based on his interpretation of the Supreme Court ruling and other undisputed evidence placed before the court.

The Supreme Court ruling early this year declared Mr Chamisa an illegitimate leader of the main opposition party and restored Dr Thokozani Khupe as interim leader of all of the MDC-T until an extraordinary congress was convened to elect new leadership.

The expelled legislators, however, stuck to the Chamisa-led MDC Alliance.

In this regard, the judge found the legislators were in defiance of the Supreme Court order and the rule of law.

“They seem to be bent on enlisting the company of the High Court in circumventing the Supreme Court judgment,” ruled Justice Kwenda.

The judge disagreed with the parliamentarians’ argument, describing reliance on the Supreme Court judgment as a fallacy, saying this was regrettable.

“It is trite that the High Court cannot overturn a Supreme Court judgment. The legal profession derives its relevance from the application of the rule of law of which constitutionalism is the cornerstone. Jurisprudentially, Supreme Court judgments are collectively a source of law,” he said.

Justice Kwenda also found that the MDC-A legislators had a burden to prove, not only that they had contested their expulsion from Parliament, but also that their recalls by MDC-T were prima facie unlawful or that, on the face of it, the impugned declarations do not meet the requirements set out in section 129(1)(k) of the Constitution of Zimbabwe.

“In my view Section 129(1)(k) creates the rights for a political party to recall a member who is in Parliament as its representative when the member ceases to be its member,” he said.

The judge also said the pending applications on the same issue were also unlikely to succeed.

In their applications, the 14 argued that notwithstanding the Supreme Court judgment, which resolved the MDC leadership dispute, they did not belong to the MDC-T. They also wanted a provisional order declaring that MDC-T had no right to nominate persons to replace them in Parliament at all until the case, in which they are challenging the recalls, is decided.

The Constitution requires that once vacancies arise in Parliament, they must be filled within 90 days.

In opposing the two applications, MDC-T argued that the 14 ceased to be its members in June this year, insisting that the declarations it issued were and remained valid because they meet all the requirements set in the law.

The Speaker of National Assembly, Senate President and ZEC argued that they did not expel the legislators from Parliament, arguing that they had no quasi-judicial power to either approve or disapprove the expulsion of the legislators from Parliament by MDC-T.

It was also their argument that once vacancies occurred in Parliament by operation of the law, they must be filled within 90 days, thus they had no power to stop the constitutional processes.

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