COURT WATCH 19/2021
[6th October 2021]
High Court Revokes Recall of Opposition MPs
In a judgment handed down last Wednesday, a judge of the High Court, Justice Mafusire, ordered the reinstatement of six former opposition Members of the National Assembly who had had to vacate their seats on the ground that they no longer belonged to the party for which they were elected. The six are Kucaca Phulu, Settlement Chikwinya, Willias Madzimure, Regai Tsunga, Sichelesile Mahlangu and Tendai Biti.
Background to the Case
Under section 129(1)(k) of the Constitution, the seat of a Member of the National Assembly becomes vacant:
“if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker … has declared that the Member has ceased to belong to it”.
The six Members in this case were all members of a political party called the People’s Democratic Party (PDP), which split into two factions before the 2018 general election. Both factions used the name of the PDP. One faction, to which the six belonged, contested the election under the umbrella of the MDC-Alliance; the other faction joined another coalition, the Rainbow Coalition. The six all won seats in the National Assembly as members for the MDC-Alliance. The candidates from the other faction were all unsuccessful.
More than two years after the election a member of the unsuccessful faction which had joined the Rainbow Coaliton, calling himself the Secretary-General of the PDP, wrote to the Speaker recalling the six MDC-Alliance members in terms of section 129(1)(k) of the Constitution. In his letter he said:
“We … hereby declare that the following Members of Parliament have ceased to belong to the People’s Democratic Party, which was a member of the Movement for Democratic Alliance [sic – presumably he meant the MDC-Alliance], an alliance formed in terms of the constitutive agreement signed on 5th August 2017. … In terms of Clause 20 of the agreement, the member parties retained their individual identities and independence. … Our party was a political party that these Members belonged to at the time of the last election in 2018. … The Members listed below have by operation of Clause 6 (4) (a) of our party constitution ceased to belong to the party and are hereby being recalled.”
There were some odd features to the letter:
The writer purported to be speaking for the faction of the PDP which had joined the MDC-Alliance, even though he was a member of the faction that had joined the Rainbow Coalition and had himself stood as a parliamentary candidate for that Coalition (and had lost).
The writer waited more than two years to write to the Speaker.
The letter was copied to various political parties but not to the MDC-Alliance or to the six Members concerned.
Nonetheless, the Speaker read out the letter to the National Assembly on the 17th March, and as soon as he had done so the six Members were regarded as having ceased to be Members of Parliament.
In a subsequent court case the former Members approached the High Court and obtained a default judgment – i.e. a judgment granted after the respondents had failed to file opposing papers – to the effect that:
Mr Settlement Chikwinya, one of the six expelled Members, was the Secretary-General of the PDP, not the writer of the letter.
The letter was null and void, and should be disregarded by the Speaker.
An application was filed to have that default judgment set aside but it has not been set down for hearing, so the judgment remains in force. The Speaker did not take steps to have the six Members re-admitted to Parliament – it will be noted that the judgment did not expressly order him to take such steps – so they went back to the High Court seeking an order compelling him to restore them to Parliament.
The Parties to the Case
Although the former Members cited the writer of the letter together with his faction of the PDP and its leader as the first three respondents, the application was directed principally at the Speaker and Parliament, who were being called upon to reinstate the former Members. They were cited as the fourth and fifth respondents. The Zimbabwe Electoral Commission [ZEC] was also cited, as the sixth respondent.
The Speaker and Parliament did not contest the application but said they would abide by the decision of the court. ZEC did not take any part in the proceedings. This was proper conduct on all their parts because none of them – the Speaker, Parliament and ZEC – could legitimately involve themselves in the internal struggles of opposition parties.
Not so the letter writer. He waded into the battle, contending that:
While there may have been two factions within the PDP, each aligning itself with a different coalition, the PDP remained a single party.
The six former Members lost their membership of the PDP by joining the MDC-Alliance. [Comment by the same logic he should have lost his membership of the PDP by joining the Rainbow Coalition.]
He was the Secretary-General of the PDP and so had authority to write the letter of recall to the Speaker.
Justice Mafusire granted the order sought by the former Members and dismissed the letter-writer’s contentions, for the following reasons:
The previous judgment obtained by the former Members remained extant and was binding on the parties to the case. According to that judgment the letter-writer was not the Secretary-General of the PDP and his letter was a nullity. The Speaker and Parliament were bound to disregard it.
In any event, it offended against common sense for the letter-writer to suggest that the PDP remained a single party even though it had split into two factions whose candidates had competed against each other in the 2018 election under the umbrella of different coalitions. Although they both used the name of the PDP, in reality the factions were two totally different political formations.
The power to recall Members from Parliament in terms of section 129(1)(k) of the Constitution is reposed in the political party to which the Members belonged at the time of their election. The letter-writer was not a member of the same political formation or faction to which the six Members belonged, either at the time of the election or thereafter. He had no power to recall the Members.
The learned Judge therefore set aside the termination of the six former Members from Parliament and ordered the Speaker and Parliament to:
“forthwith restore, or cause to be restored, the [six Members] to their positions as Members of the Parliament of Zimbabwe and to any such of the committees of Parliament as they were members of before the termination, without any loss of status or diminution of their positions.”
There may be problems about implementing the Court’s order, in particular restoring the six Members to their positions on parliamentary committees, because:
The Standing Rules and Orders Committee, not the Speaker, determines the membership of parliamentary committees, and
It is doubtful if a court has the right to tell Parliament who is to serve on parliamentary committees.
Interesting as those questions are, however, they will only arise when the order has to be implemented – and that will not happen immediately because the letter-writer, not surprisingly, has appealed to the Supreme Court against the judgment. How long it will take the Supreme Court to hear and decide the case, only time will tell. Those with long memories will recall that appeals in some election petitions challenging results in the 2002 general election remained unheard for five years, until the next election rendered them pointless.
The interests of democracy, however, demand that this appeal be heard promptly, so that democratically elected Members of Parliament can take their seats and do the work their constituents wanted them to do.