Mutasa Mliswa Heads of Argument (corrected)

APPLICANTS’ HEADS OF ARGUMENT

MAIN ISSUE FOR DETERMINATION

  1. The broad issue for determination is whether or not the 1st Respondent’s approach to section 129(1)(k) was in accordance with the proper meaning of that provision, it being the contention of the applicants that the approach of the 1st Respondent in casu infringed their fundamental rights and on that score, cannot be a proper exercise of power under that provision.
  2. Put differently any approach to section 129(1)(k) of the Constitution that has the effect of infringing fundamental rights protected by the same Constitution cannot be a correct reading of the provision.

WHAT CONDUCT IS IN ISSUE?

  1. The 1st Respondent’s approach to section 129(1)(k) is that the mere receipt of a letter by him from the political party concerned is the only requirement for him to declare a seat vacant whether or not the member concerned has lawfully ceased to be a member of the political party concerned.

4.       In casu, the 1st Respondent acted on the basis of what he believed to be the only requirement of section 129(1)(k) namely receipt of a letter from the political party concerned, despite having full knowledge that both applicants were disputing an essential fact, that is, whether or not they had “ceased” to be members of their political party.

5.       The conduct complained of is that the 1st Respondent purported to act in terms of section 129 (1)(k) when, on a proper reading of that provision, he was not empowered to act in the manner he did as long as the issue of having “ceased” to be a member was being disputed by the members of Parliament concerned.

  MATERIAL FACTS NOT IN DISPUTE

6.       The following material facts are not in dispute:

6.1     The Applicants were elected on 31 July 2013 as members of the National Assembly on a ZANU (PF) ticket.

6.2     Annexture 4 is the ZANU (PF) Constitution.

6.3     On the 18th February 2015, the applicants were purportedly “expelled” from ZANU (PF) by the ZANU(PF) Politburo and not by any other organ of that party. The applicants were not subjected to any disciplinary proceedings in terms of the ZANU (PF) Constitution.

6.4     ZANU(PF) did not inform the Applicants of the purported expulsion.

6.5     A Dr I.M.C. Chombo wrote a letter dated 19 February 2015 to the 1st Respondent advising that the Applicants had ceased to be members of ZANU (PF). The said Dr I.M.C. Chombo wrote the letter in his capacity as “Secretary for Administration” in ZANU (PF).

6.6.    ZANU(PF) did not inform the Applicants of the letter it had written to the 1st Respondent.

6.7     The 1st Respondent neither informed the Applicants of the fact of the existence of the letters he had received from ZANU (PF) nor sought the views of the Applicants on the facts contained in the letters.

6.8     Notwithstanding not having been advised by the 1st Respondent, the applicants informed the 1st Respondent that they (i) had not ceased to be members of their political party (ii) were disputing the assertion that they had ceased to be members of their political party and (iii) were challenging the legality of the actions taken by their party.

6.9     The 1st Respondent took the view that he was obliged to act exclusively and merely on the notification from the political party concerned and that there was no legal requirement to consider the views of  Member of Parliament concerned.

THE LAW: PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

Our Constitution contains instructions on how it must be interpreted.  Section 331 provides as follows:

“Section46 applies, with any necessary changes, to the interpretation of this Constitution apart from Chapter 4”.

Section 46, when read mutatis mutandis, requires a broad, generous and purposive approach which ensures that full effect is given to the rights and freedoms in the Bill of Rights.  Further, the Constitution must be interpreted to promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom.

The principles of the rule of law and good governance entrenched in section 3 of the Constitution must be promoted in the interpretation of any provision of the Constitution.  This is specifically required by the Constitution itself in section 331 as read with section 46.

These principles of interpretation enshrined in the Constitution reflect the prevailing approach to constitutional interpretation in all societies committed to justice and fairness.  The words in one leading case are worth reproducing.  In the leading Canadian case of R v Big M Drug Mart Ltd[1], Dickson J said:

“… this court (has) expressed the view that the proper approach to the definition of rights and freedoms guaranteed by the Charter was a purposive one.  The meaning of a right or freedom was ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.  In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter”.

The South African Constitutional Court adopted this approach in S v Makwanyane & Another[2]and up to now, remains its favoured approach.  Just like us, the South African Constitution requires that approach.

In casu, the meaning to be given to section 129(1)(k) must give full effect to the rights and freedoms in Chapter 4 and promote the values and principles in section 3.  Section 129(1)(k) must sit well with the principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom.

It is submitted that the interpretation of section129(1)(K) being favoured hereunder for the Applicants is the only interpretation which complies with the dictates of section 331 of the Constitution as read with section 46 thereof.

Section 129 (1)(k) has two requirements

14.   Section 129 (1)(k) has two requirements that must be satisfied for a Member of Parliament to lose his/her seat. These are:

14.1   The Member of Parliament must have ceased to belong to the political party of which he or she was a member at the time of his/her election to Parliament.

14.2   The political party concerned must by written notice to the Speaker of the National Assembly or the President of the Senate, have declared that the Member of Parliament has ceased to belong to it.

15.     The word “and” inserted between the two requirements is unambiguous in its import. The two requirements are distinct. For example:

15.1 A political party cannot, merely by written notice to the Speaker declaring that a member has ceased to belong to it, cause a member to cease to belong to it, if the member is still a member at the time the written notice is received by the Speaker. In other words, a person is not dead merely because their death certificate has been issued.

15.2   A member of Parliament who has ceased to belong to the political party of which he/she was a member when elected to Parliament does not lose his/her seat until the political party concerned by written notice to the Speaker or President of the Senate declares that he/she has ceased to belong to it.

16.     Section 129(1)(k) is NOT in the following words:

          “The seat of a Member of Parliament becomes vacant… if the member belonged to a political party when elected and the political party concerned by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the member has ceased to belong to it”.

17.     Regarding the first requirement, the issue is: when does a member “cease” to belong to his/her political party? The answer to this question depends  on the nature of the relationship between a political party and its members.

18.     It is trite that the relationship between a voluntary association (such as political party) and its members is contractual.[3]

19.     In Matlholwa v Mahuma & Others[4]it was said’

“As was correctly emphasized by the court below, a political party is a voluntary association founded on the basis of mutual agreement. Like any other voluntary association, the relationship between a political party and its members is a contractual one, the terms of the contract being contained in the constitution of the party”.

20.    The terms of the contract between a political party and its members are subject to the Constitution of Zimbabwe. Any term which is inconsistent with section 67 of the Constitution is invalid. This was emphasized by the South African Constitutional Court in Ramakatsa & Others v Magashure & Others[5] as follows:

“In relevant part section 19(1) proclaims that every citizen of our country is free to make political choices which include the right to participate in the activities of a political party. This right is conferred in unqualified terms. Consistent with the generous reading of provisions of this kind, the section means what it says and says what it means. It guarantees freedom to make political choices and once a choice on a political party is made, the section safeguards a member’s participation in the activities of the party concerned. In this case the appellants and other members of the ANC enjoy a constitutional guarantee that entitles them to participate in its activities. It protects the exercise of the right not only against external interference but also against interference arising from within the party…. It bears repeating that political parties may not adopt constitutions which are inconsistent with section 19. If they do, their constitutions may be susceptible to a challenge of constitutional invalidity.”

21.   Clearly therefore, a member only “ceases” to belong to his/her political party within the contemplation of section 129(1)(k) if he/she lawfully ceases to be a member. An unlawful termination of membership at the instance of the political party does not make a member “cease” to be a member within the scope of section 129(1)(k). Section 129(1)(k) cannot be read in any other way. It cannot accommodate unlawful termination of membership given the unqualified nature of a citizen’s right in section 67 to make political choices, including the right to participate in the activities of a political party of one’s choice.

22.     Whether or not a member has ceased to belong to a political party is a question of both law and fact. Only a Member of Parliament who has lawfully ceased to belong to his/her political party loses his/her seat under section 129(1)(k)

23.     In relation to the second requirement, the written notice to the Speaker or President of the Senate must be bona fide in the sense that it must be the act of the political party concerned. Since a political party is a persona ficta (legal persona), the written notice must emanate from a person or organ with the requisite authority in terms of the constitution of the political party concerned. If the written notice is not authorized by the political party concerned, it is invalid for purposes of section 129(1)(k).

24.     Section 129(1)(k) does not expressly state how the fulfillment of the two requirements may be ascertained in order to determine whether or not a seat has become vacant. In line with the correct approach to constitutional interpretation outlined above, the Constitution, by necessary implication, must be read as follows:

24.1  The Speaker or President of the Senate has a legal duty to be satisfied that both requirements are met before announcing and/or declaring the seat vacant. This duty arises both expressly and impliedly from the following sections of the Constitution:  section 2 (Supremacy of the Constitution)

          Section 3 (Founding values and Principles)

          Section 44 (Duty to respect fundamental rights and freedoms)

          Section 122 and 126 (Duty as Presiding Officer)

          Section 342 (Any Power includes power reasonably necessary or incidental to its exercise)

24.2 In ascertaining whether or not the requirements are met, it is mandatory for the Speaker or President of the Senate to ascertain the views of the Member of Parliament concerned regarding the two requirements. Thus, if the Speaker or President of the Senate receives a written notice from a political party seeking to invoke section 129(1)(k), he or she must inform the Member of Parliament concerned of the existence of the notice and specifically ascertain the member’s views on:

          (i) Whether or not he/she has ceased to belong to the political party and

          (ii) whether or not the notice is bona fide.

24.3   The vacancy is not automatically created merely on notification by the political party concerned. It is created when (i) the two requirements have been satisfied and (ii) the presiding officer has subsequently made the declaration contemplated by the provision. Although a declaration is not specifically mentioned, it is required in terms of the law and custom of Parliament. Cheda J`s judgment in Bhebhe & Others v MDC HB 85/09 is not relevant in casu. Not only is it a judgment of a lower court under the old Constitution, his remarks on the issue were obiter and plainly wrong.

24.4   If pursuant to 24.2 the Member of Parliament concerned disputes one or both of the two requirements, cadit quaestio. The Speaker or President of the Senate cannot act in terms of section 129(1)(k). He/she must inform the political party concerned of the Member of Parliament’s position and leave it to the political party concerned either not to persist with its wishes or seek an appropriate court order regarding one or both of the two requirements. The onus must remain with the political party because section 129(1)(k) does not make a seat automatically vacant on a member’s ceasing to belong to his/her political party.

24.5  The Speaker or President of the Senate is not empowered to resolve any dispute between a member and his/her political party regarding any of the two requirements. If there is any dispute, no matter how frivolous or vexatious it may appear to the Speaker or President of the Senate to be, the rule of law and the principle of separation of powers requires that that dispute be resolved by a court of law.  This also arises from section 69(3) of the Constitution which provides:

“Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute)”.

24.6 The office of the Speaker of Parliament under the common law(law and custom of Parliament) is that of a fair and absolutely impartial presiding officer. This is, by necessary implication, entrenched in the Constitution. In prescribing that the written notice by the political party concerned is made to the Speaker and not to the Clerk of Parliament, the Constitution`s intention is to ensure absolute impartiality in handling the matters under the section. That impartiality requires informing the Member of Parliament concerned and staying out of any disputes arising therefrom by leaving it to the courts to determine the dispute.

24.7  The involvement of the member concerned before declaring his/her seat vacant under section 129(1)(k) is not just a matter of law and natural justice. It is also a matter of common sense. Given that membership of a political party is contractual, it cannot make sense to allow only one party to the contract to announce its termination. Any departure from this common sense requires express words to that effect.

24.8   The framers of the Constitution knew very well the behavior of political parties, particularly their propensity to act out of expediency rather than principle.  That is why the two requirements are separate – to enable a member to challenge the mere say so of his or her political party.

24.9   Section 129(1)(k) only applies where there is no dispute on any of the two requirements. For example, where a member has voluntarily resigned, section 129(1)(k) easily applies. Outside that situation, the section is not an easy avenue. This is so because we are a democratic society and there are competing values and principles. The courts must resolve any dispute authoritatively before the section is applied.

25.     The interpretation of section 129(1)(k) being put forward in these heads of argument is the only interpretation that is consistent with the broad scheme of the Constitution.  An interpretation that allows the Speaker or President of the Senate to declare a seat vacant without affording the member concerned an opportunity, if he/she so wishes, to demonstrate the non-fulfilment of one or both of the two requirements in that section, not only undermines the values and principles upon which Zimbabwe is founded, but is also so absurd that it could never have been the intention of the framers of the Constitution.  Both the undermining of the founding values and principles of the nation and the absurdity are easy to illustrate.  Here are a few examples:

25.1   It is contrary to the rule of law, enshrined in section 3(1)(a), to allow a person who has committed a wrong to benefit from his/her own wrong.  This would arise if a member who has been unlawfully expelled from his/her party were not to be allowed to dispute the fact of having “ceased” to belong to his/her political party.

25.2   It is contrary to both the rule of law and separation of powers for a person not to be afforded access to the courts to resolve a dispute which lies at the core of that person’s political, social and economic life.

25.3   Legislative authority is derived from the people in terms of section 117(1) of the Constitution and this is why Members of Parliament are elected by the people.  Any interpretation of section 129(1)(k) which gives unbridled power to political parties is contrary to the spirit of “authority from the people”.

25.4   There is no express right of recall in the Constitution.  Section 129(1)(k) must not be interpreted in such a way as to provide for an express right of recall.  As voters do not have such a right, there is no express provision giving political parties an unlimited right to recall.

25.5   An interpretation which allows the Speaker or President of the Senate to declare seats vacant merely on the mere say so of a political party will leave the composition of Parliament exclusively at the mercy and pleasure of political leaders.  It is not uncommon for a political party to be under the total control of one person.  The whole purpose of the constitutional provisions on the legislature would be defeated if Members of Parliament are arbitrarily removed from Parliament.  This is such a glaring absurdity that could never have been intended.

APPLICATION OF THE LAW TO THE FACTS

26.     The 1st Respondent was fully aware that the Applicants were of the following views:

26.1   That they had not ceased to be members of ZANU(PF).

26.2   That the leaders purporting to be acting on behalf of ZANU(PF) were not legitimately in office.

26.3   That their expulsion was null and void.

26.4   That a competent court would, in due course, demonstrate the validity of their positions.

27.     Given the positions of the Applicants known to the 1st Respondent, the Constitution as interpreted above, required him not to act under section 129(1)(k).  He ought to have left the matter in the hands of the political party concerned to either obtain an unanswerable court order binding him in respect of the two requirements in section 129(1)(k) or abandon its resolve to invoke section 129(1)(k).

28.     The 1st Respondent clearly misdirected himself in law in believing that all what was required was to dance to the tune of the political party concerned.

29.     In acting contrary to the true meaning of section 129(1)(k), the 1st Respondent breached the Applicant’s rights as detailed in the Founding Affidavits and the Draft Order.

30.     Once the foregoing interpretation of section 129(1)(k) is accepted as correct, the infringement of the enumerated rights of the Applicants speak for themselves.

31.     For the sake of completeness, the fact that the 2nd Respondent has already issued a proclamation causing by-elections to be held is irrelevant.  If the Applicants’ seats are not vacant, the 2nd Respondent’s proclamation is invalid.

32.     Accordingly, the Applicants pray for an Order in terms of the Draft Order, subject to the following substitution in place of paragraph 8:

        “That the 2nd Respondent’s proclamations causing the holding of by-elections in the Headlands and Hurungwe West Constituencies be and are hereby declared null and void”

 

DATED AT HARARE on this 31st March 2015

Tags: 

Download File: