After
hearing submissions by counsel in the two applications, the Court
made the following order:
“After
considering the papers filed in this matter and hearing submissions
by counsel, the Court unanimously concludes that both applications
have no merit and are hereby dismissed with costs on the ordinary
scale.”
The
following are the reasons for the order.
Two
constitutional applications, No.CCZ19/15 and ...
After
hearing submissions by counsel in the two applications, the Court
made the following order:
“After
considering the papers filed in this matter and hearing submissions
by counsel, the Court unanimously concludes that both applications
have no merit and are hereby dismissed with costs on the ordinary
scale.”
The
following are the reasons for the order.
Two
constitutional applications, No.CCZ19/15 and No.CCZ20/15, were filed
with the Registrar of the Constitutional Court (“the Court”) on
different dates. Each application sought an order setting aside the
announcement by the Speaker of the National Assembly (“the
Speaker”) and the President of the Senate that the applicants'
seats in Parliament had become vacant because the applicants had
ceased to belong to the political party of which they were Members
when elected to Parliament. The applicants in case CCZ 19/15 were
members
of the National Assembly, whilst those in case CCZ20/15 were members
of the Senate. They had all been elected to the two Houses of
Parliament as members of the Movement for Democratic
Change-Tsvangirai (“MDC-T”) political party.
The
Court heard the two applications together as they raised the same
issue and sought the same relief.
The
applications were made in terms of section 85(1)(a) of the
Constitution of Zimbabwe, Amendment (No.20) 2013 (“the
Constitution”). The section provides that any person who alleges
that any of the fundamental rights and freedoms enshrined in Chapter
4 of the Constitution has been, is being or is likely to be
infringed, may, in his or her own interests, approach a court seeking
appropriate relief which the court has a discretion to grant.
The
historical background to the cases is that the applicants in both
cases are former members of the MDC-T. The applicants in the first
application were elected to the National Assembly while the
applicants in the second application were elected to the Senate in
the harmonised general elections held on 31 July 2013. As a result of
political infighting, the applicants withdrew their memberships from
the MDC-T. The Secretary General of the MDC-T wrote letters to the
Speaker and the President of the Senate, giving them notice of the
fact that the applicants had ceased to belong to the MDC-T.
Upon
receipt of the written notices, the Speaker and the President of the
Senate announced to the members
of their respective Houses that the seats occupied by the applicants
had become vacant. The announcements were made by the Speaker and the
President of the Senate in their capacities as the presiding officers
of the respective Houses of Parliament. They also informed the third
and fourth respondents (the
President of Zimbabwe and the Chairperson, Zimbabwe Electoral
Commission, respectively)
of the occurrence of the vacancies, as they were required to do by
section 39(1) and section 39(3) of the Electoral Act [Chapter 2:13]
(“the Electoral Act”).
In
the wake of the written notices declaring that they had ceased to
belong to the MDC-T, the applicants did not approach any court for an
order protecting their rights. They decided to follow the advice of
Mr Tendai Biti, a legal practitioner and one of those who had
withdrawn his membership from the MDC-T. He advised that they should
make applications to the Constitutional Court challenging the
validity of the announcements by the Speaker and the President of the
Senate that their seats had become vacant.
The
applicants failed to appreciate the nature and scope of the juristic
acts, the occurrence of which is required under section 129(1)(k) of
the Constitution for a vacancy in a seat of a Member of Parliament to
occur. They approached the Court alleging that the Speaker and the
President of the Senate had expelled them from Parliament by the
announcements to the members
of the respective Houses that their seats had become vacant.
The
applicants alleged that the conduct of the Speaker and the President
of the Senate in “expelling” them from Parliament infringed their
fundamental right to equal protection and benefit of the law
enshrined in section 56(1) of the Constitution. They also alleged a
violation of the right to form, join and participate in the
activities of a political party of their choice in terms of section
67(2)(a); the right to stand for election for public office, and, if
elected, to hold such office in terms of section 67(3)(b); the right
to administrative justice in terms of section 68; and the right to a
fair hearing in terms of section 69(3) of the Constitution.
The
respondents opposed the applications. They argued that the conduct of
the Speaker and the President of the Senate, in announcing that the
seats occupied by the applicants in the respective Houses had become
vacant, was lawful. It could not have infringed the applicants'
rights. The respondents' contention was that the seats became
vacant as a result of the operation of the provisions of section
129(1), as read with section 129(1)(k), of the Constitution. The
announcements by the Speaker and the President of the Senate of the
existence of the vacancies in the seats in Parliament which had been
occupied by the applicants were made ex post facto. They had no
bearing on the events which led to the applicants ceasing to be
Members
of Parliament and their seats becoming vacant in terms of section
129(1) of the Constitution. The respondents contended that, as the
applicants' seats in Parliament became vacant by reason of the
operation of section 129(1) as read with section 129(1)(k) of the
Constitution, the applicants lost their seats lawfully. Compliance
with the provisions of one section of the Constitution cannot
constitute an infringement of a fundamental right protected by
another section of the same Constitution.
The
applicants submitted that the Speaker and the President of the Senate
ought to have carried out inquiries to satisfy themselves that the
written notices were issued by the political party of which they were
members when they were elected to Parliament. They argued that there
was no “political party concerned” because there was a split in
the MDC-T. According to the applicants, there was no legitimate
political party to give written notices to the Speaker and the
President of the Senate declaring that they had ceased to belong to
it.
Section
129 of the Constitution provides:
“129
Tenure of seat of Member of Parliament
(1)
The seat of a Member of Parliament becomes vacant -
(a)–(j)…,.(not
relevant);
(k)
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 or the President of
the Senate, as the case may be, has declared that the Member has
ceased to belong to it.”
The
interpretation given to section 129(1)(k) of the Constitution must be
consistent with the spirit, purport and objects of the Constitution.
The
main argument was that there was no “political party concerned”
to forward to the Speaker or the President of the Senate the written
notice required under section 129(1)(k) of the Constitution. The
allegation was that the MDC-T split into two formations, with the
effect that no entity called MDC-T was left in existence.
The
facts do not support the contention.
A
political party is a product of a voluntary association of people who
share a common ideology on how the affairs of the State should be
administered and believe that if some of the members are elected to
Parliament, and the political party gets control of the levers of
Governmental power, they will use them for the benefit of all
citizens. It is constituted in terms of its own constitution, and, as
such, is a legal entity independent of members.
The
applicants were elected on MDC-T tickets. They had differences with
other members of the MDC-T concerning the style of leadership of the
Party. They convened a meeting at the Mandel Training Centre,
discussed their grievances and resolved to leave the MDC-T.
It
is clear from their own founding affidavits that the meeting at the
Mandel Training Centre had not been sanctioned by the party
structures. It was not chaired by the Chairman of the MDC-T. The
conduct of the applicants was in violation of the constitution of the
Party. The applicants formed a separate entity with its own bank
account, signatories, and headquarters.
The
rest of the members of the MDC-T did not reconstitute themselves.
They did not create a separate formation. The MDC-T congress then
decided that the applicants, along with others, had left the MDC-T.
At that point, and before they formed the splinter group, the
applicants were aware that section 129(1)(k) of the Constitution
could be invoked against them.
The
applicants, as a group, decided, on their own, to terminate their
memberships of the MDC-T. The fact that they agreed to constitute
themselves into a formation after they had terminated their
memberships does not in itself mean that the others, who were not
members of their group, constituted themselves into another
formation. Those who did not join their group continued to regard
themselves as the MDC-T.
Mr
Biti wrote a letter to the Speaker in which he referred to the
formation of an entity called the “Renewal Democrats Team”. The
reason why the applicants did not challenge the validity of the
cessation of their memberships of the MDC-T in a court of law was
that they left the MDC-T of their own volition. Just as they had
exercised their rights in freely choosing to join the MDC-T, they
freely and voluntarily withdrew their memberships from it. That is
why they sought to challenge the validity of the announcements of the
vacancies in their seats by the Speaker and the President of the
Senate.
Counsel
for the applicants sought to rely on Prebble v Huata [2004] NZSC 29,
a decision of the Supreme Court of New Zealand, for the proposition
that the Speaker and the President of the Senate needed to satisfy
themselves that a Member
being recalled has ceased to belong to “the political party
concerned”.
The
case is not helpful in any way to the applicants' case. It was
common cause that the applicants had left the MDC-T voluntarily. The
written notices came from the Secretary General of the MDC-T from
which the applicants had voluntarily withdrawn their memberships.
The
ancillary question is whether an act done in terms of the provisions
of the Constitution can violate a person's rights in terms of the
same Constitution. The question is answered in the negative. An act
lawfully done in terms of the Constitution cannot violate a person's
rights under the same Constitution.
The
applicants sought to challenge the validity of the actions by the
Speaker and the President of the Senate on the basis of the
allegation that they violated the fundamental rights enshrined in
sections 69(3), 68(1) and 56(1) of the Constitution.
A
Member of Parliament loses his or her seat in the specific
circumstances prescribed under section 129 of the Constitution.
Section 129(1)(k) of the Constitution provides for one of the
circumstances prescribed. One cannot read any other value into the
section because section 129(1)(k) of the Constitution is a complete
provision that is not subject to the Bill of Rights. The wording of
section 129(1)(k) of the Constitution is clear. Like any other
provision of the Constitution, section 129(1)(k) is a fundamental
law, partaking of the status of supremacy of the Constitution,
against which the validity of conduct can be measured. It is not
permissible to import notions from other constitutional provisions to
impose a duty that was not intended to be part of the requirements of
a particular constitutional provision.
The
purpose of section 129 of the Constitution is to provide for
circumstances in which the tenure of seat of a Member of Parliament
comes to an end. Section 129(1)(k) of the Constitution specifies one
of the circumstances in which the tenure of seat of a Member of
Parliament comes to an end and the seat becomes vacant. Tenure of
seat of a Member of Parliament means the tenure of the right of a
Member of Parliament to occupy the seat following an election. The
provisions of section 129(1)(k) of the Constitution may be summarised
as being that –
(a)
The Member of Parliament should have been a member of a political
party when he or she was elected to Parliament;
(b)
The Member of Parliament should have ceased to belong to the
political party, either by voluntary withdrawal of membership or by
being expelled from the political party concerned; and
(c)
The political party concerned should have given a written notice to
the Speaker or the President of the Senate of the cessation of
membership of it by the Member of Parliament. In the written notice
the political party concerned must declare that the Member of
Parliament has ceased to belong to it.
Section
129(1)(k) of the Constitution relates to a legal process that has its
beginning in the relationship between the Member of Parliament and
the political party to which he or she belonged at the time he or she
was elected to Parliament. The first fact to trigger the section
129(1)(k) process is cessation of the status of belonging to the
political party concerned by the Member of Parliament. Ceasing to be
a member of the political party concerned is the main event.
The
legal effect on the creation of a vacancy in the seat of the Member
of Parliament depends on the subsequent events, which are procedural
and communicative in nature.
The
status of having ceased to be a member of the political party
concerned is a matter of fact, the legality of which is determined by
reference to the provisions of the constitution of the political
party concerned. It may be a fact resulting from a process of
expulsion or voluntary resignation. When it occurs, it remains a
matter affecting the internal affairs of the political party
concerned. It may remain so without any effect on the tenure of seat
of the Member of Parliament unless the political party concerned
takes the action prescribed under section 129(1)(k) of the
Constitution and communicates the fact that the Member of Parliament
has ceased to belong to it to the person appointed to receive the
communication.
For
the communication to have the legal effect it is required by the
Constitution to have, it must not only take a specific form and
contain a specific message, it must be addressed to a specific
official. The content of the message communicated should be the fact
that the Member of Parliament who is specifically identified by name
has ceased to be a member of the political party concerned of which
he or she was a member when he or she was elected to Parliament.
The
fact that the Member of Parliament has ceased to be a member of the
political party concerned must be communicated to the Speaker or the
President of the Senate by means of a written notice that takes the
form of a declaration. The official who signs the written notice must
ensure that it declares that the Member of Parliament has ceased to
be a member of the political party concerned. A declaration of fact
is considered to be a solemn statement of truth that must have the
legal effect designed to flow from it. The receipt by the Speaker or
the President of the Senate, who are the only officials designated to
receive the written notice complying with these procedural and
substantive requirements of the written notice envisaged under
section 129(1)(k) of the Constitution, grants to the written notice
the legal effect it is intended to have.
The
purpose of the written notice by the political party concerned,
disclosing to a third party a fact relating to its internal
relationship with a member, would have been to reclaim the seat in
Parliament won by the Member of Parliament on its ticket. Section
129(1)(k) of the Constitution makes it clear that the legal effect of
the receipt by the Speaker or the President of the Senate of a
written notice complying with all the formal and substantive
requirements is to create a vacancy in the seat in Parliament
occupied by the Member who has ceased to be a member of the political
party of which he or she was a member when elected to Parliament.
A
number of considerations flow from the effect of section 129(1)(k) of
the Constitution. It is the fact of the cessation of membership of
the political party and its communication to the Speaker or the
President of the Senate, in the form and manner prescribed, that
creates a vacancy in the seat occupied by the Member who will have
ceased to be a member of the political party concerned.
A
vacancy in the seat in Parliament is not created by an act of the
Speaker or the President of the Senate. It is created as a direct
legal consequence of events, the origin of which lies outside
Parliament. Termination of the tenure of the right of the Member of
Parliament to occupy the seat is what the Constitution, through
section 129(1)(k), says must happen when all the procedural and
substantive requirements of the provision have been met.
The
origin of the act concerned lies in the relationship between the
political party concerned and the Member of Parliament who was its
member when he or she was elected to Parliament. If the cessation of
the membership of the political party concerned was by expulsion, it
is that act of expulsion that has the potential of creating a vacancy
in the seat occupied by the Member of Parliament. The potential
consequence of the act materialises when it is communicated to and
received by the official appointed to receive it in the form and with
the substance prescribed. Similar consequences will follow if the
termination of the membership of the political party is by
resignation.
The
Speaker or the President of the Senate would have had no control over
the events affecting the relationship between the Member of
Parliament and his or her political party. A Member of Parliament,
whose termination of the membership of a political party is by
expulsion, is not expelled from Parliament. He or she is expelled
from the political party.
The
Speaker or the President of the Senate cannot be accused of expelling
a Member from Parliament whose seat becomes vacant because his or her
right to represent the political party of which he or she was a
member when elected to Parliament would have been terminated by
operation of law.
The
accusation against the Speaker and the President of the Senate, of
having expelled the applicants from Parliament, shows a failure by
the applicants to understand the role of the Speaker or the President
of the Senate in the process prescribed by section 129(1)(k) of the
Constitution leading to the creation of a vacancy in the seat of a
Member of Parliament. The accusation also suggests that the Speaker
or the President of the Senate is required to involve himself or
herself in some quasi-judicial inquiry into the conduct of the Member
of Parliament in which he or she finds the Member guilty of some form
of misconduct for which expulsion from Parliament becomes the
penalty. The role of the Speaker or the President of the Senate, in
the process leading to the creation of a vacancy in the seat of a
Member of Parliament, in terms of section 129(1)(k) of the
Constitution, is facilitative. It is not judicial in nature.
The
role the Speaker or the President of the Senate has to play in the
process is to satisfy himself or herself that the document he or she
has received is from a political party and that it contains a written
notice declaring that the Member of Parliament, who was a member of
that political party when elected to Parliament, has ceased to belong
to the political party concerned.
The
Speaker or the President of the Senate has no power to prevent the
occurrence of the creation of the vacancy in the seat of a Member of
Parliament commanded by section 129(1)(k) of the Constitution as the
consequence of the communication and receipt of the written notice.
The
announcements by the Speaker and the President of the Senate of
vacancies in the seats in Parliament occupied by the applicants were
done for purposes of informing the Members of the respective Houses
of what had happened. They were not, and could not, be announcements
of the results of decisions they had themselves taken to create the
vacancies in the seats in Parliament. The Speaker and the President
of the Senate did not pretend to have the power to create vacancies
in the seats occupied by the applicants in Parliament.
The
applicants did not deny the fact that the creation of the vacancies
in the seats in Parliament occurred before the announcements. The
announcements were separate ex post facto occurrences, with their own
purposes to serve in the performance of administrative functions by
the Speaker and the President of the Senate.
The
reports the Speaker and the President of the Senate gave to the third
and fourth respondents (the
President of Zimbabwe and the Chairperson, Zimbabwe Electoral
Commission respectively)
were in fulfilment of the requirements of section 39(3) of the
Electoral Act. The reports cannot be related to the satisfaction of
the requirements of section 129(1)(k) of the Constitution.
The
question that should have been asked, and answered, by the applicants
before instituting these proceedings was whether what was done by the
Speaker and the President of the Senate was a failure to comply with
the requirements of section 129(1)(k) of the Constitution.
Did
the Speaker and the President of the Senate do any act inconsistent
with the provisions of section 129(1)(k) of the Constitution? If what
was done had no substantive bearing on the requirements of section
129(1)(k) of the Constitution for the creation of a vacancy in a seat
of a Member of Parliament, the attack on its validity is of no
relevance in the determination of the question of the matter in
dispute.
The
matter in dispute was the validity of the creation of vacancies in
the seats of the Members of Parliament concerned in terms of section
129(1)(k) of the Constitution.
Counsel
for the applicants relied on the decision of the Supreme Court of
India in Kihoto Hollohan v Zachillhur and Others [1992] Supp. (2) SCC
651. The Supreme Court of India said:
“In
the Indian constitutional dispensation, the power to decide a
disputed disqualification of an elected Member of the House is not
treated as a matter of privilege and the power to resolve such
electoral dispute is clearly judicial and not legislative in nature.
The power to decide disputed disqualification under Paragraph 6(1) is
pre-eminently of a judicial complexion. [pp.759G. 763C] Indira Nehru
Gandhi v Raj Narain, [1976] 2 SCR 347; Special Reference 700 No.1 of
1964 [1964] INSC 209; [1965] 1 SCR 413 and Express Newspaper Ltd v
Union of India, AIR 1958 SC 578, referred to Australian Boot Trade
Employees Federation v Whybrow & Co. [1910] HCA 8; 1910 10 CLR
266, referred to.”
In
India, between 1967 and 1983 about one Government collapsed each
month on account of defections. At times, an average of one
legislator changed his or her affiliation each day. During the period
extending from 1967 to 1972, sixty percent of the elected Members of
Legislatures defected at least once. During the period there were
2,700 defections. Hence, Parliament amended the Constitution and
added the Tenth Schedule to the Constitution prohibiting defections.
See: T K TOPE “Constitutional Law of India” 2ed…,.
The
Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as
“the Anti-Defection Law”) inserted the Tenth Schedule in respect
of the provisions of Articles 102(2) and 191(2). The Tenth Schedule
provided for the disqualification of a Member of either House of
Parliament or of a State Legislative Assembly. Paragraph 1 of the
Tenth Schedule provides that a Member of the House of Parliament or
State Legislative Assembly incurs disqualification if he or she
voluntarily gives up his or her membership of the political party by
which he or she was put forward as a candidate at the election. A
member also incurs disqualification if he or she, without obtaining
prior permission of the political party to which he or she belongs,
votes or abstains from voting in the House of Parliament or State
Legislative Assembly contrary to "any direction" issued by
such political party and such voting or abstention has not been
condoned by such political party within fifteen days from the date of
such voting or abstention.
Disqualification
could also be incurred if a Member elected otherwise than as a
candidate set up by any political party joins a political party after
the elections; or if a nominated Member joins any political party
after expiry of six months from the date he or she took his or her
seat.
Paragraph
5 of the Tenth Schedule of the Constitution of India provides that,
whenever a question arises whether a Member has become subject to
disqualification, that matter shall be referred for decision to the
Chairman or Speaker, as the case may be, and his or her decision
shall be final. According to Paragraph 6, all proceedings under
Paragraph 5 shall be treated as internal proceedings of the House of
Parliament or State Legislative Assembly within the meaning of
Articles 122 or 212 of the Constitution of India and no court shall
inquire into the proceedings. Paragraph 7 provides that no court,
including the High Court and the Supreme Court, shall have any
jurisdiction in respect of any matter connected with the
disqualification of a Member of the House of Parliament or State
Legislative Assembly under the Tenth Schedule.
The
law itself provided that questions of disqualification were to be
decided by the Chairman or the Speaker, as the case may be, and his
or her decision was final. The Constitution of India itself gave
judicial powers to the Chairman or the Speaker.
There
is no similar provision in our Constitution.
The
important aspect of the provisions of the Tenth Schedule to the
Constitution of India is that the legal effect of defection by a
Member from the political party to which he or she belonged when
elected to the House of Parliament or the State Legislative Assembly
is disqualification as a Member of the House of Parliament or the
State Legislative Assembly. In other words, the seat becomes vacant
by reason of the disqualification resulting from the act of
defection. In that way, there would be no benefit accruing from
defection. There would be no floor-crossing. A situation where a
Member of Parliament, who has lost his or her membership of the
political party to which he or she belonged when elected, retains the
right to remain a Member of Parliament or the State Legislative
Assembly with the capacity to vote with any other party against the
former political party is prevented.
Counsel
for the applicants further sought to rely on Kihoto Hollohan v
Zachillhur and Others [1992] Supp. (2) SCC 651 to suggest that the
Speaker or the President of the Senate exercises quasi-judicial
functions when he or she acts in terms of section 129(1)(k) of the
Constitution.
That
argument does not accord with the interpretation of section 129(1)(k)
of the Constitution. Sight ought not to be lost of the fact that the
loss by a Member of Parliament of the right to occupy a seat in
Parliament, in terms of section 129(1)(k) of the Constitution, is not
a matter within the discretion of the Speaker or the President of the
Senate. It happens by operation of law. The role of the Speaker or
the President of the Senate is to receive the written notice which
conforms with the prescribed form, bearing the required contents. All
the Speaker or the President of the Senate has to do is to satisfy
himself or herself that the written notice communicated to him or her
is the document contemplated in section 129(1)(k) of the
Constitution.
The
applicants, in the first case, say that the Speaker arrogated to
himself “judicial authority” and determined that the letter
written by the Secretary General of the MDC-T was to be given
precedence over the letter written by Mr Biti.
It
is difficult to understand how the applicants can allege that the
Speaker ought to have enquired into the legality of the process by
which the applicants ceased to members of the MDC-T. The applicants
do not seek any relief relating to section 129(1)(k) of the
Constitution, in terms of which the process they are complaining
about was conducted. In essence, the applicants sought to argue that
the Speaker and the President of the Senate are duty bound to enquire
into the fairness of the process by which a person ceases to be a
member of a political party.
The
law requires the Speaker and the President of the Senate only to
accept that a person has ceased to be a member of a political party
as communicated by the written notice. They have no power to inquire
into the legality of the processes which lead to the eventuality of
the cessation by the Member of Parliament of membership of the
political party concerned. The section gives the political party to
which a Member of Parliament belonged a right to have the seat
rendered vacant. In the exercise of that right, the political party
concerned, through an officer authorised to do so, is required to
forward a written notice to the Speaker or the President of the
Senate, declaring that a Member of Parliament has ceased to belong to
it. The political party concerned is required to comply with the form
and content of the communication.
Section
129(1)(k) of the Constitution is a provision clearly intended to
benefit a political party in order to protect it from members who
abandon its cause. The provision is meant to avert floor-crossing. It
is the political party concerned which is ultimately answerable to
the people.
The
object of section 129(1), as read with section 129(1)(k), of the
Constitution, like the anti defection provisions of the Tenth
Schedule to the Constitution of India, is to preserve and promote
democracy. The vacancy is created in a seat of a Member of
Parliament, who has ceased to belong to the political party of which
he or she was a member when elected, to give the electorate the right
to decide, in a bye-election, whether to give the mandate to
represent them in Parliament to the political party concerned or to
the same person who lost the seat if he or she stands as an
independent candidate or as a candidate sponsored by another
political party.
The
purpose of the requirement that the Speaker or the President of the
Senate should advise the President of Zimbabwe and the Chairperson of
the Zimbabwe Electoral Commission, in terms of section 39(1) of the
Electoral Act, of the vacancy in the seat of a Member of Parliament,
is to ensure that a bye-election is called.
JENNINGS
“Cabinet Government” (3ed..,.) states that a Member of Parliament
elected on a political party ticket has two obligations. He or she
has an obligation to the political party. He or she also has an
obligation to the electors. The obligation to the political party is
to support it for the normal duration of Parliament. The obligation
to the electors stems from the fact that, in modern times, the
elector, speaking broadly, casts his or her vote for a particular
individual, not because of his or her individual merits, but because
he or she is put forward by the party for which the elector desires
to vote. The successful candidate is almost invariably returned to
Parliament, not because of his or her judgment and capacity, but
because of his or her political party label. His or her personality
and his or her capacity are alike unknown to the great mass of his or
her constituency. His or her own electioneering is far less important
than the impression which his or her political party creates in the
minds of the electors. They vote for or against the party to which he
or she belongs.
The
candidate who stands on a political party ticket represents to the
electors that he or she will support the party and its general
programme and that he or she will abide by the decisions of the
majority of the party once those decisions are taken. If a person has
uncompromising views on various issues, which may not harmonise with
the views of any political party, his or her proper course is to
stand as an independent candidate. But, those that desire that effect
should be given to certain views and policies on which a number of
people are agreed should join or form a political party as that is
the only effective way of implementing those policies. However,
working together with a group of people pledged to carry out broad
policies means that the right of dissent is greatly restrained, for
in no other way can policies on which there is broad agreement be
carried out.
The
kind of democracy which has been set up by our Constitution and the
conditions under which that democracy must operate bear testimony to
the views on the relationship between a member and his or her
political party. Zimbabwe is a multi-party democracy. In adopting a
multi-party democracy, the makers of the Constitution assumed there
would be multiple political parties - as in fact there are.
It
is for these reasons that the Court found the applications to be
without merit.
