Urgent
Chamber Application
MOYO
J: The
applicant in this matter was a member of the senate in the Zimbabwean
Parliament having been so elected by the MDC- T political party.
Following
differences with the political party, he was subsequently expelled
from same and such expulsion was communicated to parliament,
specifically the president of the senate. The president of the
senate accordingly, upon receipt of the communication that applicant
had ceased to be a member of MDC-T, invoked provisions of the
Constitution of Zimbabwe, particularly section 129 (1) K which
provides as follows:
“The
seat of a member of Parliament becomes vacant inter alia) 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 in the President of the
senate, as the case may be, has declared that the member has ceased
to belong to it.”
Third
and fourth respondents raised a point in
limine
that the failure to join the Parliament of Zimbabwe as well as the
Zimbabwe Electoral Commission should be held to be fatal to
applicant's case. Whilst, it could be argued that the Parliament
of Zimbabwe should have been cited, I find that its non-joinder is
not fatal since the Clerk of Parliament and the President of Senate
were cited and thus Parliament is in a practical sense represented in
these proceedings. It is the non-joinder of ZEC that I find to be
fatal. Section 159 of the constitution provides that
“wherever
a vacancy occurs in any elective public office, established in terms
of this Constitution other than an office to which section 158
applies, the authority charged with organizing elections to that body
must cause an election to be held within 90 days to fill the
vacancy.”
Section
39 (3) of the Electoral Act [Chapter 2:13] also provides for the
notification of the Commission (referring to ZEC) of the vacancy.
It
follows that ZEC is an integral part of the issues as raised by the
applicant and clearly it should have been cited. Its non-citation is
fatal to applicant's case in my view. I would accordingly uphold
this point in
limine
and the application should on this basis alone fail.
However,
for the benefit of all the parties concerned and to show that the
applicant's case would still be found wanting on the merits. I have
gone further to deal with same. Applicant contends that, proper
procedures were not followed in his expulsion in that his case was
not properly dealt with and that an appeal is actually pending before
the internal structures of the MDC- T in terms of their constitution:
It
is my considered view that what is happening within the MDC-T is not
the business of the President of the Senate who should at all times
act in accordance with the constitution. It is by operation of law
that applicant's seat is now vacant. The President of Senate is
not enjoined to assess any issues, or make a decision as to the
propriety or otherwise of the expulsion, all the President of the
Senate has to do is to act in accordance with the provisions of the
constitution once communication has been received from the party on
the cessation of the membership of a party representative in
Parliament.
Neither
does the constitution provide for measures that should be taken once
it is found that the member is at qualms with the decision to expel
him from the party and consequently from Parliament.
Applicant
seeks temporary relief to the effect that:
“2) 3rd
and 4th
respondents be and are hereby interdicted, pending the finalization
of this matter, from accepting any person seconded to them by 1st
and 2nd
respondents to fill in the vacancy left after the expulsion of
applicant from the senate.”
I
hold the view that this relief is impracticable in that, the seat
that was held by applicant in the senate has already been declared
vacant, there are constitutional and electoral provisions that
necessarily ensue after such has occurred.
Section
159 of the Constitution provides that:
“Wherever
a vacancy occurs in any elective public office established in terms
of the constitution, other than an office to which section 158
applies, the authority charged with elections to that body must cause
an election to be held within 90 days to fill the vacancy.”
This
clause by implication, would apply to a proportional representation
seat. It is my considered view that it should also be filled within
90 days in terms of the Constitution. Now if applicants want this
honourable court to stop the selection of a candidate pending this
court action, it means the court order would fly in the face of
section 159 of the Constitution.
Again,
section 39 (3) of the Electoral Act [Chapter 2:13] provides for
notification of the Zimbabwe Electoral Commission of a vacancy in
Parliament as soon as the Senator becomes aware of it.
It
is my considered view that the operation of law started by the
provisions of section 129 (1) K of the constitution cannot be
interfered with by this court as it is impracticable to do so as it
would result in an undesirable situation that is not supported by the
provisions of a constitution. The undesirable situation would be
that of a vacant seat in Parliament which is left as such until a
determination has been made on the internal squabbles of the MDC-T.
Refer to the case of Abednico
Bhebhe and others
v The
Chairman National Disciplinary Committee and others HB
85/2009.
It
is my finding that applicant should have acted whilst the matter was
still an internal one, he should have either sought an interdict
against his party from acting in the manner that it did or
communicating the detrimental information to Parliament. Otherwise
at this juncture what the applicant seeks to do is a little too late.
The horse has bolted in my view and the remedy that applicant seeks
cannot be granted. It is for these reasons that the application
should fail.
I
accordingly dismiss the application with costs.
Moyo
and Nyoni,
applicant's legal practitioners
T.
J. Mabhikwa & Partners,
1st
& 2nd
respondents' legal practitioners
Chihambakwe
Mutizwa and Partners,
3rd
& 4th
respondents, legal practitioners
