Legal significance of the Bhasikiti case

Last Sunday, The Sunday Mail, the state weekly, ran a story in which they reported that President Mugabe could still go ahead and set the date of the by-election in Mwenezi West, despite a ruling of the Constitutional Court requiring current MP Kudakwashe Bhasikiti’s legal challenge to be settled first in the High Court.

Kudakwashe Bhasikiti
Kudakwashe Bhasikiti

With respect, the report is incorrect and misleading. Just a day before publication, the paper had written seeking an opinion on the matter. I gave my opinion, which I discuss in this paper, but I suspect as it was inconvenient, the paper chose to exclude it from its account.

A brief account of the Bhasikiti case is useful for the reader who is unfamiliar with it.

Bhasikiti was elected MP for Mwenezi West in the 2013 election, representing Zanu PF. He was appointed Minister of State in charge of Masvingo Province. Later, however, he was sacked from his Ministerial post, having been implicated in an alleged plot to oust President Mugabe. Zanu PF also expelled him from the party and sent a declaration to the Speaker in terms of s. 129(1)(k) of the Constitution, that he had been expelled. This would result in his seat being declared vacant, requiring a by-election to be held within 3 months in terms of s. 158(3) of the Constitution.

However, while he could do nothing about his dismissal from government, Bhasikiti was not pleased with the decision to sack him from the party. He duly mounted a legal challenge at the High Court, based on various procedural and substantive grounds, against his expulsion from the party. This did not stop the Speaker from declaring the seat vacant and informing the President who would then be required to set a date of the by-election in Mwenezi West.

However, Bhasikiti approached the Constitutional Court, to stop the by-election pending the finalisation of his case at the High Court, and possibly at the Supreme Court, should there be an appeal. The Constitutional Court ruled in his favour and directed that the matter in the courts below should be resolved first by July 31 2015, before a by-election could be held.

This was hailed by the private media and commentators as a victory against President Mugabe. Actually, this was just political hyperbole from a media and section of society keen to claim any success against the state as a victory against Mugabe. This is hardly surprising in an environment where victories against the long-serving ruler are few and far between – any success is bound to receive great acclaim and to be attributed as a defeat of Mugabe. Papers will do anything to sell copy. Worse, the mushrooming and click-happy news-websites will do even more to attract hits. In reality, this was a victory for the constitution, and common-sense, as we reveal in this paper.

The case is important because, finally, the Constitutional Court got it right in the interpretation of s. 129(1)(k) of the constitution, which deals with the expulsion of an MP from Parliament when he has ceased to be a member of his political party.

Prior to this, a view had been proffered and seemingly accepted by the courts, that once the Speaker of Parliament receives a declaration from the party that an MP was no longer its member, it meant that the seat became vacant by operation of law. In terms of this view, the Speaker had no power to enquire into the legal validity of the declaration. He had no discretion but had to declare the seat vacant upon receipt of the declaration.

We had always argued that this was a wrong interpretation and that the MP’s constitutional rights were protected and in acting upon such a declaration, the Speaker had to be satisfied that the member’s rights had been safeguarded We argued that there are two key elements in s. 129(1)(k): first, the MP must have ceased to be a member of the political party and second, the party must have sent a declaration to that effect to the Speaker. Both are matters of fact, which can be contested.

An MP who is affected is protected by the Constitution, whose Declaration of Rights protects such rights as the right to a fair hearing, the right to fair administrative conduct, the right to human dignity, etc all of which might be affected by a party’s decision to expel him from the party and Parliament. The Speaker himself is required to promote and uphold the Constitution. It is therefore incorrect to say that a mere declaration by the party that an MP is no longer its member triggers an automatic vacancy in respect of the seat.

All this means once the Speaker is aware that there is a legal challenge, he cannot declare that the seat is vacant on the basis of the declaration from the party. Unfortunately, in the Didymus Mutasa case, the Speaker took it upon himself to decide that Mutasa’s legal challenge was without merit. It is arguable that he had no power to make such a decision, because he has no judicial authority.

The Speaker had made the correct decision in an earlier episode involving MDC MPs who had defected to the MDC Renewal Team. Where there is a dispute as to the fact of expulsion from the party, the Speaker’s hands are tied. The matter has to be resolved first. Unfortunately, the Speaker later turned back on that decision.

What the Bhasikiti decision does is to reaffirm the position that if any MP who has allegedly been expelled wishes to challenge the decision, he is permitted to do and this challenge suspends the operation of s. 129(1)(k) which means his seat cannot be declared vacant until the challenge is resolved. Legally, the MP retains his seat, albeit temporarily, until the resolution of the legal dispute. This means legally, Bhasikiti is still the MP for Mwenezi West and there is no vacancy in that constituency at present. There is therefore no legal basis upon which President Mugabe can set a date for the by-election because there is no vacancy as yet.

This is the explanation that I gave to The Sunday Mail, but as is evident, it stood in the way of the line they were pushing, namely, that President Mugabe could still go ahead and set an election date regardless of the ruling in the Bhasikiti case. But on what basis would he set a date for a by-election when legally there is no vacancy yet?

If, however, the Constitutional Court gave the July 31 deadline on the basis that an election must be held within 90 days from the date that Speaker pronounced the seat vacant following Zanu PF’s declaration that Bhasikiti was no longer its member, then it is, with all due respect, wrong in that regard. Bhasikiti’s legal challenge suspends the effect of the decision to expel him from Parliament and that declaration cannot therefore be a basis for declaring the seat vacant until the dispute is resolved. The fact that the court allowed it to be finalised means it does not regard it as a spurious challenge.

Overall the decision in the Bhasikiti case sets an important precedent for parliamentary authorities in respect of how they should handle similar cases in future. The mere fact that a political party has written to the Speaker declaring that an MP is no longer its member is not enough on its own to trigger a vacancy in Parliament and a by-election. If the basis of expulsion is contested, that challenge must first be resolved by the courts before a vacancy legally arises and indeed before a by-election is held.

Ultimately, Bhasikiti’s victory may prove to be nothing more than a temporary reprieve in the sense that Zanu PF will still find a way to get him expelled anyway. However, in enforcing his rights, even against the heavy odds, he has done a lot to promote compliance with the constitution and has helped set a precedent that should guide future conduct in the application of s. 129(1)(k) of the Constitution. And that alone is worthy of commendation.

For our part on this website, we are pleased to note that our position stated six months ago has been vindicated! The whole purpose of providing this free public service is to interrogate the law, to inform and to assist the justice system in the interpretation of the constitution.

Post published in: Analysis

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