Dear Advocate Mudenda and Senate President Mabel Chinomona,
Following media reports that the MDC-T faction of the MDC will be recalling another 8 legislators today, I thought I could write you this letter to advise you against accepting the recall request because it is unconstitutional to do so. Please carefully read my explanation before you break the law again.
In passing judgement in the case in which the MDC Alliance was trying to block further recall of its legislators from Parliament and Senate, Justice Tawanda Chitapi made some very interesting observations which also affects the MDC-T which is recalling legislators. I will list such observations to also point at the fact that the MDC-T and the MDC Alliance are in the same predicament:
1. “The fact that a group of people came together under a common name to pursue a common agenda of attaining political power, does not make them a legal person capable of suing or being sued.”
2. “Does the MDC Alliance have any instrument of incorporation that allows it to sue or be sued?”
3. “ While they can be properly be called a political party, does it make it a juristic person?”
4. “A voluntary organisation can exist as a political gathering without a constitution but if wants to take the form of a juristic person it must have a constitution”
The above observations are very telling. Firstly, it surprising how the media ran headings that the MDC Alliance is not a political party, because Justice Tawanda Chitapi said it is indeed a political party, but it has to have an instrument of incorporation, and it must have a constitution. Many would have thought that the acceptance of the registration with the Zimbabwe Elections Commission and the registration of its candidates with the Zimbabwe Elections Commission was adequate recognition that the MDC Alliance, accepted as a political party by the two High Court judges sponsored candidates for elections, and those candidates won.
These two judgements combined attest to the fact that Charlton Hwende, Prosper Mutseyami, Lilian Timveous and Thabitha Khumalo were sponsored by a political party called the MDC Alliance, even though it does not have a constitution, but it is allowed to exist as by the two High Court judges. And therefore, if the Constitution says only the Party which sponsored the legislator has the right to recall them, then the MDC Alliance remains the political party that can recall these legislators. The Constitution does not say the sponsoring party must be registered, but it just has to be a political party.
I am not sure if the faction of the MDC which registered as MDC-T in the 2018 elections, has their own constitution which clearly spells out their name as MDC-T. If they do have a constitution which clearly says they are MDC-T, then they are also not a juristic person, just like the MDC Alliance. At the time of the death of the late Dr. Morgan Tsvangirai, the MDC-T did not have a constitution. The MDC-T was using a constitution of the Movement for Democratic Change, and there is nowhere in that constitution which says MDC-T.
Fortunately for the recalled legislators, some of them have also appealed against their recall, and as the MDC-T is also not a juristic person, and did not sponsor their election into parliament, the Court should rule in their favour. Section 129(k) of the constitution reads “The seat of a Member of Parliament 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 or the President of the Senate, as the case may be, has declared that the Member has ceased to belong to it.” Nowhere does that section of the constitution say that the Political party has to be a juristic person.
The Supreme Court ruling is an eye-opener. In my view, the ruling is being abused by some people to suit their own selfish needs. I would also want to appeal to the media to be very careful in their reporting because Justice Chitapi did not say that the MDC Alliance is not a political party. He said the opposite of what has been reported, that the MDC Alliance is indeed a political party, that political party sponsored candidates to an election, and the Constitution of Zimbabwe doesn’t require a political party which sponsored candidates to an election to be a juristic person.