Daniel Nemukuyu Senior Court Reporter
Chief Justice Godfrey Chidyausiku yesterday ruled that the constitutional challenge by former Zanu-PF secretary for Administration Mr Didymus Mutasa and his nephew Mr Temba Mliswa was urgent and must be heard by the Constitutional Court’s full bench on April 1, Fools Day.
Messrs Mutasa and Mliswa are contesting the constitutionality of their expulsion from Parliament as legislators for Headlands and Hurungwe West, respectively.
However, the latest decision did not suspend the proclamation by President Mugabe for by-elections to fill the vacant Headlands and Hurungwe West constituency seats.
Parliament recently declared the duo’s positions in the National Assembly vacant following their dismissal from Zanu-PF.
President Mugabe’s lawyer Mr Terrence Hussein yesterday confirmed the outcome announced in a closed session in Chief Justice Chidyausiku’s chambers.
“Chief Justice Chidyausiku granted the relief that the two applicants wanted, that is, a pronouncement that their case was urgent and that an earlier hearing of the main challenge be set.
“The main challenge will be heard before the nine judges of the Constitutional Court on April 1 2015. However, the Presidential proclamation for the by-election remains in force unless the court rules otherwise on April 1,” said Mr Hussein.
Professor Lovemore Madhuku, who was representing Mutasa and Mliswa, confirmed the development.
“Our clients got the order that they sought and their main application will now be heard urgently on April 1,” said Prof Madhuku.
Prof Madhuku, who was being assisted by Mr Tafadzwa Mugabe and Mr Phillip Nyakutombwa, said the court will ensure that a determination is made before the set by-election nomination date, April 8 2015.
“Hearing in the main challenge has been set on April 1 to allow the court to finalise the case before April 8,” he said.
Parliament of Zimbabwe lawyer Mr Simplisius Chihambakwe filed a notice of opposition to the chamber application arguing that the matter lacked urgency.
He submitted that the applicants were expelled on March 3 but they decided to file the application nine days later, a confirmation that the matter was not urgent.
The Zimbabwe Electoral Commission did not oppose the chamber application for urgency.
But the court ruled in favour of Mliswa and Mutasa.
Messrs Mutasa and Mliswa argue that Zanu-PF did not follow due process in expelling them, hence the National Assembly Speaker’s decision to declare their seats vacant was a nullity.
The two seek to bar any by-election in Headlands and Hurungwe West constituencies.
National Assembly Speaker Advocate Jacob Mudenda, President Mugabe and the chairperson of the Zimbabwe Electoral Commission, Justice Rita Makarau, were listed as respondents in the court application.
Messrs Mutasa and Mliswa allege that their expulsion from Parliament violated their constitutional rights, hence the decision must be nullified.
They said that their right to equal protection of the law enshrined under Section 56 (1) of the Constitution of Zimbabwe was violated by Adv Mudenda’s conduct.
The duo’s right to stand for election for public office, if elected, has also been violated by the Speaker’s declaration of March 3 this year, they alleged.
The two argue that their right to administrative justice as protected by Section 68 of the Constitution had been infringed by the March 3 announcement.
The duo seeks an order nullifying the Speaker’s announcement and the declaration.
They also seek an order declaring them legitimate members of the National Assembly for their respective constituencies.
Mr Mliswa filed a supporting affidavit, associating himself with the main affidavit deposed by Mr Mutasa.
He said his expulsion from Parliament was a humiliating incident because he had not been notified in advance.