The big news today is that the Speaker of Parliament, Jacob Mudenda, has declared vacant the parliamentary seats held by Didymus Mutasa and Temba Mliswa. This is presumably on the basis that the two were recently expelled by Zanu PF, the party under whose ticket they were elected into Parliament in the 2013 elections.

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By Alex T. Magaisa

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Determined: Didymus Mutasa (Picture by Aaron Ufumeli)
Expelled: Didymus Mutasa (Picture by Aaron Ufumeli)

In terms of s. 129 (1) (k) of the Constitution of Zimbabwe,

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“The seat of a Member of Parliament becomes vacant –

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… 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”

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Under this provision, if a person was elected into Parliament under Party A, his seat becomes vacant if he ceases to be a member of Party A and Party A communicates by written notice to Parliament, a declaration that the person has ceased to be its member.

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This should be simple and straightforward provided there is no dispute between the party and the member over his party membership. The situation is different if he is contesting his expulsion. In that case, the dispute has to be settled first before the seat becomes vacant.

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There might be various grounds upon which a person might challenge his or her expulsion from a party. He could for example, argue that his expulsion was unlawful on account of failure to follow due process.

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He might argue that he was not given an opportunity to be heard and to defend himself. He might also argue that the party organ which made the decision was biased. All these factors and more would, if proven, invalidate the person’s expulsion from the party and therefore mean s. 129(1)(k) cannot apply as the basis for expelling him from Parliament.

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In the present case, Mutasa and Mliswa were reportedly expelled by Zanu PF. For a while, it seemed they had accepted their fate as they did not challenge the decision. There had long been rumours that Mutasa was launching legal proceedings to challenge the legality of the Zanu PF Congress held in December 2014.

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However, no action had been taken until today, which is the other big news of the day – namely that Mutasa and Rugare Gumbo have launched legal proceedings challenging the legality of the Zanu PF Congress. Now we know also that Mutasa had previously written to the Speaker, making representations.

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However, the Speaker is said to have declared that although he received this letter from Mutasa, he had considered it and concluded that it had no merit. Thus the Speaker had pronounced judgment on Mutasa’s case, dismissing his averments.

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This is a novel approach from the Speaker, one that goes against the precedent that he set last year in a similar matter in which he stated that when there is a dispute over an MP’s membership in his or her political party, he would not pass judgment but would instead defer to the courts to allow them to resolve the case, as he had no such powers of resolving disputes over party membership.

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In the case involving the opposition MDC-T and its splinter entity, the MDC Renewal, when the former wrote declaring that its MPs who formed part of the latter group had ceased to be its members, the Speaker indicated that he had also received communication contesting this view. He stated that since there was a dispute, the matter had to be resolved by the courts of law, and he would have to defer to them to resolve the dispute.

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This was inconvenient to the MDC-T but one could not fault the Speaker for seeking clarity on the situation. It is not his role to judge who is or who is not a party member, even if it looks obvious to party supporters. It is the same approach that he ought to have followed in this matter.

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Yet however, he has performed an incredible somersault and discovered that he can in fact judge whether or not representations by an affected MP have merit.

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In this case, involving his own party and Mutasa, he has taken on the role of judge in regard to the merits of Mutasa’s arguments, presumably against expulsion from Parliament. Quite how he justifies this totally different attitude and approach in this case is not altogether clear at present.

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It is this that exposes the Speaker to charges that this conduct smacks of double-standards – in one case, he rightly deferred to the courts to decide on a dispute between the parties but in the other he has decided to take on the role of judge. The MDC-T supporters will feel aggrieved that the Speaker chose to ignore their request and yet when it came to Zanu PF he was ready to act.

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The contrasting ways in which the Speaker has dealt with these two similar cases shows there is no consistency in approach and that it is important to interrogate further how requests made by parties for the expulsion of MPs should be dealt with.

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I argue that in dealing with declarations of vacancy of a seat under s. 129(1)(k), the Speaker must adhere to the constitutional standards and requirements of due process, the rule of law and fair administrative conduct. I argue that an aggrieved MP whose seat is declared vacant without being given an opportunity to make representations has lawful grounds to challenge that decision in a court of law.

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S. 129(1)(k) does not say what the Speaker must do when he receives communication from the party declaring that an MP is no longer its member.

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It does not say if the Speaker must check and confirm the situation with the MP, but presumably the demands of administrative justice require that the MP must be given notice and an opportunity to make representations regarding his membership, just in case the party position is contested.

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In this regard, s. 68 of the Constitution provides for the right to fair administrative conduct. It states that,

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“Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair”.
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“Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct”.

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In my opinion, the declaration of a vacancy pursuant to s. 129(1)(k) has to be consistent with the Constitution and this and related rights provided for under the Declaration of Rights. It does not give power to act arbitrarily in expelling a lawfully elected person from Parliament. Parliament is a public body whose public functions can be subject to review by the courts. As the Head of Parliament, the Speaker has the duty to ensure that parliamentary functions are exercised lawfully and in terms of the Constitution.

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In particular, administrative conduct must comply with s. 68 of the Constitution, which must include giving notice to an affected party, being reasonable and both substantively and procedurally fair. Whether or not an MP is no longer a member of his political party is a question of fact that needs to be established by considering all available information and from both sides – the party and the MP.

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Indeed, the risk is that if the Speaker simply goes by way of accepting a declaration given by the party alone, without establishing the MP’s position, this could become arbitrary as political parties could easily declare behind his back that a person has ceased to be its member. This would lead to the MP losing his seat without being given an opportunity to contest the validity and lawfulness of the party’s claim that he has been expelled.

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In conclusion, the different ways in which the Speaker has handled the MDC-T and Zanu PF cases is yet another show of the selective application of law by public authorities depending on political party affiliation.

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When he dealt with the MDC-T case last year, the Speaker ought to have known that he would face similar cases in respect of his own party, Zanu PF. Given the manner in which the matter of Mutasa has been handled, it is easy to see why MDC-T supporters and others would argue that this smacks of astounding hypocrisy.

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As I have argued, the administrative procedures pertaining to the declaration of a vacancy in such cases must be consistent with the values of the Constitution and the rights enshrined in the Declaration of Rights, including the rule of law, due process and the right to fair administrative conduct. The Speaker has to ensure that these standards are met before he declares a vacancy. He has to satisfy himself that the affected MP is not disputing the said declaration of cessation of membership.

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To the extent that these rights and values are infringed, an affected MP is entitled to challenge their expulsion from Parliament under s. 129(1)(k) and to therefore retain their seat until that matter is resolved by the courts.

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Alex Magaisa can be reached on wamagaisa@yahoo.co.uk. You can visit his blog: https://newzimbabweconstitution.wordpress.com/