Sengezo Tshabangu
When the National Assembly met for its first day of business on the 10th of October, the Speaker announced that he had received a letter from a Mr Tshabangu, who claimed to be the interim Secretary-General of the CCC party, notifying him that 14 named Members of the House [two of whom had only just been sworn in] had ceased to be members of the party. According to the Speaker, he could not adjudicate on whether the Members had indeed ceased to belong to their party or whether their seats had become vacant; instead, he was compelled by section 129(1)(k) of the Constitution as interpreted by previous court rulings to notify the President and the Zimbabwe Electoral Commission that the Members’ seats had become vacant.
The announcement was followed by uproar as a result of which the Police were called in to eject CCC Members from the Chamber.
In the Senate on the same day the President of the Senate made a similar announcement regarding nine CCC Senators; they left the chamber without having to be ejected.
In this Bill Watch we shall look at the law to see whether the Speaker and the President of the Senate were correct in declaring the parliamentarians’ seats to be vacant without investigating the credentials of the person who had sent the letters. We shall also look at subsequent developments in the affair.
Section 129(1)(k) of the Constitution
Section 129(1)(k) of the Constitution is as follows:
“The seat of a Member of Parliament becomes vacant—
…
(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 object of the provision is to protect political parties against defections by their Members of Parliament. Because of the important role that parties play in securing the election of Members of Parliament, parties have a legitimate interest in seeing that their MPs, once elected, remain loyal. In view of this, the Constitution gives parties the power to recall their MPs if they abandon their party.
Role of the Speaker or President of the Senate under Section 129(1)(k)
Opposition parties in Zimbabwe have tended to split into different factions, and in recent years section 129(1)(k) has been used as a weapon to settle factional disputes, with one faction recalling the other faction’s MPs. The recalls have been challenged in court and as a result the Constitutional Court has considered the interpretation and scope of section 129(1)(k) in at least three separate judgments.
In one of the judgments the Court explained the role of the Speaker and President of the Senate:
“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 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 enquire into the legality of the processes which led to the … cessation by the Member of Parliament of membership of the political party concerned.”
The correctness of these views may be doubted – indeed the late and very learned Dr Alex Magaisa thought they were wrong – but they were expressed by our highest court and the Speaker and President of the Senate quite rightly considered they were bound to follow them and acted accordingly.
Subsequent Developments
On the 12th October the recalled Members of the National Assembly launched urgent applications in the High Court asking the court to declare that:
- Mr Tshabangu (the person who had written to the Speaker recalling them from Parliament) had no authority to do so, and
- they were still Members of the National Assembly representing the CCC party.
The recalled Senators filed a similar application on the 16th October.
Without waiting for the Court to hear the applications, the President issued a proclamation on the 20th October calling by-elections in their constituencies. The proclamation fixed the 7th November as nomination day in the by-elections and the 9th December as polling day.
The Court Applications
Both applications were essentially the same, so for convenience we shall deal with the one filed by the recalled Members of the National Assembly.
The Members’ argument
The Members’ affidavits made the following arguments:
- When they stood for election their nomination papers were signed by persons authorised to do so by Adv Chamisa, the leader of the CCC party, and not by Mr Tshabangu.
- Adv Chamisa advised the Speaker by letter in September that he alone was authorised to write letters to the Speaker concerning the party’s Members of Parliament.
- The recall letter written to the Speaker was false in that Mr Tshabangu was not a member of the CCC party, much less its secretary-general, and the Members of Parliament had not ceased to be party members.
- The Speaker had no reason to believe that Mr Tshabangu had authority from the CCC to write the recall letter, particularly in view of the earlier letter from Adv Chamisa. The Speaker should not have accepted the recall letter like an automaton [though that is more or less what the Constitutional Court said he must do].
The Members did not join the CCC as a party to the proceedings, nor did they file an affidavit from Adv Chamisa saying that the recall letter was false and that the Members still belonged to the CCC.
The opposing argument
Mr Tshabangu contended that:
- The High Court could not hear the application because section 167(2)(d) of the Constitution gives the Constitutional Court exclusive jurisdiction to determine whether Parliament had failed to fulfil a constitutional obligation, which is what the Members were contending.
- The CCC had not been made a party to the proceedings, so it had not challenged his authority to write the recall letter.
- In the absence of an affidavit from Adv Chamisa most of the allegations made by the Members were hearsay and inadmissible.
- He (Mr Tshabangu) had been appointed as an authorising officer to verify that CCC candidates in the general election were standing for the party.
- The Members had not produced any evidence to support their allegation that he was not a member of the CCC.
The judgment
The applications were heard on the 2nd November and judgment was given two days later – commendably quickly. The judgment can be accessed on the Veritas website [link].
Before dealing with the main issue, the judge disposed of two preliminary points raised by Mr Tshabangu:
Jurisdiction: The judge said the High Court did have jurisdiction to hear the case. Section 167(2) of the Constitution gave the Constitutional Court exclusive jurisdiction to hear challenges to Parliament’s conduct only where it was alleged that the whole institution of Parliament – both Houses – had failed to comply with the Constitution. In this case the Members were contending that the Speaker, not Parliament as a whole, had failed to carry out their constitutional obligations.
Non–joining of CCC: The fact that the CCC had not been joined as a party did not prevent the Court from hearing the case because rule 32(11) of the High Court Rules states that cases cannot be dismissed solely on the ground of non-joinder of a party.
The learned Judge then dealt with the merits of the application and dismissed it on the following grounds:
- The only issue before the court was whether the recall letter complied with section 129(k) of the Constitution. The Constitutional Court had previously ruled that in such cases the Speaker cannot question the legality of the processes by which Members may have ceased to belong to their party.
- The validity of the recall letter depended on the Members having ceased to belong to the CCC, and only the CCC could tell the court whether or not they had indeed ceased to be its members. Any allegation of unfairness or illegality about their expulsion had to be raised with the CCC, not with Parliament. The party had to come to court to speak about the illegality of the recalls.
- The recall letter fully complied with the Constitution and purported to come from the CCC. In the absence of any contrary evidence from the CCC itself or its leader, the Speaker had to accept it.
- The letter written by Adv Chamisa to the Speaker was dated 12th September but was not delivered to Parliament until after the Members had allegedly ceased to belong to the CCC. In any event, because there was no affidavit from Adv Chamisa to say he had written it, the letter was hearsay and inadmissible.
- The Members had failed to produce any document to show that Mr Tshabangu was not the Interim Secretary-General of the CCC; they simply alleged that he wasn’t, and that was not enough.
On those grounds the application was dismissed, and rightly so. The Constitutional Court has ruled that the Speaker cannot question an assertion in a recall letter that a Member has ceased to belong to his or her party, so the Members should not have asked the High Court to censure the Speaker’s for failing to do so. They should have asked the Court to rule that they were still members of the CCC but they did not provide evidence on which the Court could give such a ruling.
As a result, the Court had to accept the recall letter at face value – despite the improbability that party members who had been elected on a party ticket just two months previously, some of whom had only just been sworn in, would have ceased to belong to their party.
The Members have noted an appeal to the Supreme Court, but the appeal is unlikely to be heard and finalised before the by-elections are held to fill the vacancies in their seats.
Further Developments
The 7th November was nomination day for by-elections to fill the vacant seats in the National Assembly. All the recalled Members were nominated for the CCC party, but so apparently were some other candidates who also purported to represent the CCC. How that happened is unclear, because section 46(10)(c) of the Electoral Act says that nomination papers must be rejected if they state that a candidate is standing for a political party “and the nomination officer has reason to believe that that fact is not true”. If two candidates contesting the same election both claim to represent the same party, isn’t it reasonable to believe that one of them is not telling the truth?
Also on the 7th November, Mr Tshabangu wrote to the Minister of Local Government recalling the Mayor of Harare, his deputy and seven other councillors in terms of section 278 of the Constitution, on the ground that they had ceased to be members of the CCC party. The effect of section 278 is that local authority councillors must vacate their offices if they are recalled by the party under whose auspices they were elected. Mr Tshabangu has threatened to recall many more councillors and parliamentarians.
We can expect many more court challenges.
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.
Post published in: Featured