Strangers in the house: A consideration of Section 129 (1) of the Constitution

This is an abridged version of an article by the Research and Advocacy Unit (read the full article here).

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by Research and Advocacy Unit

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INTRODUCTION

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THE fractious nature of the main political parties in Zimbabwe since the July, 2013 elections has resulted in numerous suspensions and expulsions of party members and has meant that there has been frequent recourse to subsections 129(1)(k) and 129(1)(l) of the national Constitution. These subsections have been subject to a variety of interpretations and inconsistently implemented.

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The absence of uniformity has quite clearly arisen in many instances because the provisions have been interpreted with a desired political outcome, rather than the law in mind. The varying interpretations by lawyers are probably mostly on account of the legal practitioners shooting from the hip when approached by journalists for comment on the issue and without careful consideration.

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The subsections in question must not only be read extremely carefully to ensure that they are correctly applied, but can also lead one into extremely difficult jurisprudence. The subsections are as follows:

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129(1)(k) 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.

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129(1)(l) The seat of a Member of Parliament becomes vacant if the Member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party.

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These subsections also do not take into account the complex situations which may arise in this regard and nor do they set out the procedural steps which ought to followed when the contemplated circumstances arise. These are serious lacunae in our Constitution. The South African Constitution, for example, provides specific exemptions from these provisions in the case of mergers, splits and the renaming of parties.

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THE OPERATION OF THE SUBSECTIONS

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For the sake of simplicity, only vacancies in the National Assembly will be discussed here. The position in the Senate is however identical. The most important immediate point to note is that a Member’s seat becomes vacant the moment a certain set of facts comes into being. The occupancy of a seat is notcontingent upon any action taken by the Speaker, who has no discretion in this regard. The vacancy occurs automatically by virtue of the operation of the terms of the Constitution.

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The Speaker has no power to terminate membership of the House. However, a custom has arisen whereby it is regarded as a duty of the Speaker to declare a seat vacant when the circumstances set out in subsections 129(10(k) and 129(1)(l) have arisen. But this is a declaration of a pre-existing situation (a vacancy) caused by the operation of the Constitution and not caused by the Speaker. There is no specific provision requiring the Speaker to make this declaration. The provisions also do not specify who is to make the determination that circumstances have arisen which have caused a member to lose his seat.

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However, since the Speaker is invested with the authority to maintain order and is constitutionally obliged to act subject to the Rules and Orders of the House (even if the House has ultimate authority in this regard), and since it is the task of the Speaker to direct the removal of non-members from any part of the House reserved for Members, the Speaker would be duty-bound to declare a Member’s seat vacant, and the former member a “stranger in the House”. Any member may also draw the Speaker’s attention to the presence of a “stranger in the House”.

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As the enforcer of the Rules of the House, the Speaker thus has the primary duty to determine whether the circumstances which give rise to a vacancy have arisen. It is worth spelling out these circumstances: In the case of subsection 129(1)(k) a seat automatically becomes vacant if:

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1. the occupant is a member of Parliament
\n2. the member has ceased to belong to the political party
\n3. of which she was a member
\n4. when elected to parliament and
\n5. that political party has given notice
\n6. in writing
\n7. to the Speaker
\n8. that the member has ceased to belong to that party.

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In the case of subsection 129(1)(l)a seat automatically becomes vacant if:

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1. the occupant is a member of Parliament
\n2. the member was not a member of a political party
\n3. when he or she was elected to Parliament
\n4. and after such election becomes a members of a political party.

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THE SPEAKER’S RULINGS

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A reading of the facts in each of the subsection 129(1) cases post the July 2013 elections indicates that the Speaker of Parliament has not proceeded on the basis of any clear principles or criteria when making his determinations. They thus appear to be ad hoc and inconsistent. This emerges clearly when statements made by the Speaker are juxtaposed.

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In Dr. Kereke’s case Mr. Mudenda stated:

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In an out of court settlement, it was understood that Hon. Dr. Kereke had been sent a letter of purported dismissal by Cde. Mutasa on wrong allegations as Hon. Dr. Kereke’s dismissal from Zanu PF Party had not followed the Zanu PF constitutional process. Accordingly, the Chair hereby rules that Hon. Dr. Kereke is a Member of the National Assembly, having been elected by the Bikita West Constituency under Zanu PF ticket and that he is a Member of the Zanu PF Party.
\nAccordingly, in that instance the Speaker took into consideration the question whether the expulsion of Dr. Kereke from ZANU PF had followed due process.

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Yet in the case of the dispute within the MDCs the Speaker ruled:

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…neither the Honourable President of the Senate nor the Honourable Speaker of the National Assembly has any authority and role to play in the internal disciplinary actions, disputes or differences within political parties

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In the case of Mutasa and Mliswa the Speaker stated:

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I have received a letter from Mr. D. N. E Mutasa, in which he indicated that his expulsion from Zanu PF party was not warranted as due process was not followed in terms of the internal party democracy. This raises the issue pertaining to the expulsion of the member, a matter that I do not have the mandate to pursue. It is vital that at this point, I mention that the notification to the Speaker by the party that a member has ceased to represent its interest in the National Assembly and Parliament is all that is required at law to create a vacancy and for the Speaker to declare the seat vacant [emphasis added].

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In the case of Dr. Kereke the Speaker not only examined the issue of due process, and whether Dr. Kereke thus had been lawfully expelled by the party, but also determined that the expulsion was wrongful and that it should be regarded as void and treated as if it had never happened. In the case of Mutasa and Mliswa, he stated that he did not have the mandate to consider the issue of due process and in the case of the MDC that he could not investigate internal disciplinary actions.

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Attempting to explain these apparent inconsistencies the Speaker stated:

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In the case of MDC, there was a dispute of leadership; two groups were claiming the same name and subsequently they went to court and Mutasa only complained about due process, that was all I had. That’s a huge difference.

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Yet it seems that, in Mutasa’s letter to the Speaker, he did, like Biti, raise the question of the authority of the author to write the Speaker in terms of subsection 129(1)(k). The explanation also did not indicate why due process had been considered in the case of Kereke and not Mutasa, and why nothing had been determined in the case of Samukange.

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The last ruling in the MDC-T case also is difficult to reconcile with an earlier ruling, which contained this statement:

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… neither the Honourable President of the Senate nor the Honourable Speaker of the National Assembly has any authority and role to play in the internal disciplinary actions, disputes or differences within political parties.

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Yet the Speaker effectively gave a ruling on precisely the issue which had been pending before the Courts, that is, upon the validity of the expulsions and counter expulsions (and thus who constituted the MDC-T) determining the one set of expulsions to be valid and the other not – on this basis:

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The resolution to recall the members was reached at the MDC-T Congress held in November 2015. The MDC-T congress was widely advertised and the affected members never sought at the material time to interdict the holding of that congress nor challenge it in the Courts of Law in so far as the outcome of that congress was concerned.

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SOME LEGAL POINTS IN RELATION TO 129(1)(K) AND (L)

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The Law

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There can be no doubt that where a member has been expelled from a political party or private voluntary organisation (including religious bodies) in violation of due process, that the member has recourse to the courts. Also, in terms of general legal principle, a decision appealed against is suspended until the outcome of the appeal. Thus if a person is expelled from a political party, the expulsion must, generally, be deemed suspended until the determination of the appeal – regardless of whether the appeal is made to an internal body of the party or to the country’s courts.

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In the absence of an immediate appeal against expulsion, the expulsion would be effective from the date it was ordered, until, and if, later set aside. Even if the expulsion were ultra vires (beyond the powers of the expelling body), or fatally defective on account of a procedural irregularity which rendered the expulsion null and void ab initio, the expulsion ought to be treated as merely voidable in the absence of any appeal, as the effected member would have behaved as if accepting the expulsion.

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Furthermore, the task of the Speaker is to make a decision on each question of fact. Has the Member in question ceased to be a member of the party to which he or she belonged at the time of his election? Has that political party written to him or her to confirm that fact? In other words, have all criteria set out at the beginning of this paper been met? Without knowing whether a person who has dispatched a letter to him in terms of subsection 129(1)(k) was authorised to do so (Biti and Mutasa’s cases), or whether the author was writing on behalf of the political party to which the relevant Member belonged at the time of his election (Biti’s case), the Speaker cannot ascertain whether the facts which would trigger a vacancy of a seat have eventuated.

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The Law and the Facts

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In the cases of both Dr. Kereke and Jonathan Samukange, there can be no doubt that they were expelled from Zanu PF. Neither of the two appealed their expulsions. At the time, therefore, when both stood for election, neither of the two were members of Zanu PF. The expulsions could not also, on this account, be treated as void – as the Speaker purported to do in the case of Kereke and may well be contemplating in the case of Samukange.

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It does not appear, however, that Zanu PF treated the expulsions as neither void nor voidable, but simply readmitted the two into Zanu PF without setting aside the expulsion proceedings as defective. Whatever the precise situation, what is apparent, however, is that neither of the two were members of Zanu PF when they stood for the election, and both subsequently became so. As such subsection 129(1)(l) has clear application, and the seats occupied by the two are vacant.

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In the case of Mutasa and Mliswa, these two members also did not, and have not, appealed their expulsion from Zanu PF. The Court Application subsequently filed by Mutasa (and Rugare Gumbo) is reportedly a challenge to the lawfulness of Zanu PF’s 6th National People’s Congress and the appointments made (and not made) to the bodies established in terms of Zanu PF’s Constitution, as required when the Congress is convened – such as the Presidium, Politburo and Central Committee.

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The challenge to the expulsions only arises by necessary implication, because the failure to appoint a National Chairman, who heads the National Disciplinary Committee, means that Committee cannot be properly constituted, and thus cannot properly make a recommendation to the Politburo to expel the two. And the Politburo itself cannot act on such recommendation as the Politburo itself is not properly constituted. However, in the absence of an appeal the Speaker is entitled, if all other criteria are met, to treat the expulsions as effective and the two no longer members of Zanu PF for the purposes of subsection 129(1)(k).

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The matter does not end there, however, as the authority of Zanu PF’s Secretary for Administration to write to the Speaker in terms of the subsection was put into question by Mutasa, who claimed that the party Secretary had not been properly appointed to such post. Without knowing whether the Secretary for Administration had been duly appointed, the validity of the letter addressed to him under subsection 129(1)(k) was in doubt and the Speaker could not know whether one of the criteria of that subsection had been fulfilled – that the party had written to him as required by the subsection.

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The Speaker’s difficulty of ascertaining the correct factual situation replicated the Speaker’s dilemma in the case of the MDC-T Members. Without knowing which of the two groupings is the “real” MDC-T, the Speaker could not know whether the person addressing him in terms of subsection 129(1)(k) was a member of the relevant political party, that is, belonged to the same party as the members allegedly expelled. Similarly the Speaker could not know whether members of the Mandel Group had ceased to be members of the party to which they belonged at the time they were elected – the first criterion to be met for a seat to become vacant.

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This position has not changed, as alleged by one Member of the House, on account of MDC Renewal joining forces with the Ncube’s MDC as the UMDC. This is not only because the position of MDC Renewal is that the UMDC is a coalition of parties and not a new party, and thus the MDC Renewal, if it be MDC-T, remains intact as such. It is also because, even if the Renewal Group were now part of a new party, the Secretary-General of the Tsvangirai Group could not write to the Speaker in terms of subsection 129(k)(l) as that Secretary-General could neither write on behalf of the MDC-T nor have any authority to do so unless he were part of the “real” MDC-T – a matter still undetermined.

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If one were inclined to have any sympathy for the Speaker, these would be the circumstances in which to grant it. How is the Speaker to proceed when the factual criteria which trigger a vacancy in terms of section 129(1) are in dispute? Here it is worth repeating that the vacancy exists on account of the noumenal and not the phenomenal – that is, once the facts as they actually are in themselves (the noumenal) come into being, the vacancy is automatically triggered, regardless of any subjective perception of those facts (the phenomenal) by the Speaker.
\nThere is a strong argument that a declaration of a vacancy by the Speaker constitutes administrative action and thus all the constitutional protections pertaining to administrative fairness have application, and most particularly the right to be heard. It would seem therefore that the Speaker is required to consider submissions from both the party and the Member before making a declaration.

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However, with or without hearing submissions from the member and party concerned, other questions remain: is the Speaker entitled to state that he does not know whether there is a stranger in the House or does not know whether a vacancy has occurred? Is he entitled to say that the matter is before the Courts (if it be), and the Courts must determine the factual position? It is arguable that declining to make a finding as to whether facts exist which have triggered a vacancy in terms of subsection 129(1) does not violate the Electoral Act. Section 39(1) of the Act provides:

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In the event of a vacancy occurring among the constituency members of the National Assembly, otherwise than through a dissolution of Parliament, the Speaker shall notify the President and the Commission of the vacancy, in writing, as soon as possible after he or she becomes aware of it.

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The Speaker might be entitled to maintain that, not being certain of the facts, he is not aware of the vacancy. However, declining to pronounce on the issue raises various constitutional points. The Speaker is not obliged to declare a vacancy in terms of subsection 129(1) and thus may decline to do so without violating the Constitution on this account. However, if the Speaker is required to make a ruling should a Member object to a “stranger in the House”, since the Speaker is bound to act subject to the Standing Rules and Orders of the House, his failure to make a ruling on the point is arguably a breach of this constitutional stipulation.

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A further problem for the Speaker is that the vacancy occurs regardless of his view of the facts. And the Constitution requires that once the vacancy has occurred, the by-election must take place within 90 days of such occurrence. Perhaps the Constitution would be more happily worded if the time period were to be linked with the communication of the vacancy by the Speaker to the President?

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So how should the Speaker proceed? If the vacancy has occurred, but, in the Speaker’s perception it has not, or he declines to rule on the point, the Constitution will be breached and the requisite by-election will not take place within ninety days (or perhaps at all). If the vacancy has not occurred, but the Speaker rules that it has, a by-election may take place which ought not to, and once more the Constitution will be breached. There is also the risk of the by-election being set aside or a wrongfully ejected Member of the House being unable to reclaim his seat.

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A Possible Principle

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One means of dealing with the conundrum would be for the Speaker to determine the issue on the basis of the response of the “expelled” party member. If the party member does not appeal the expulsion, the expulsion is effective from the date of the order, and subsections 129(1)(k) or (l) have effect, as the criteria are met, regardless of the fact that the expulsion could be set aside.

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If the expulsion is appealed, then the expulsion is suspended and the Member remains within the political party concerned until and unless the appeal tribunal determines otherwise. This approach would prevent contradictory rulings by the Speaker and the tribunal and would remove the possibility of the party deciding to void the expulsion (as per Kereke) when the expulsion has had an outcome no longer held desirable by the expelling party.

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Where the second criterion is at issue (the communication to the Speaker that the Member no longer belongs to the relevant political party) in the case of any plausible doubt, for example that the communication was duly made by a person authorised to do so, the better course of action would be for the Speaker to decline to find a stranger in the House.

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The matter could then be determined by Parliament itself and/or the party aggrieved by the outcome could, and ought, to bring the matter before the Courts. While this approach might result in a failure to hold a by-election within 90 days of the vacancy occurring, such an outcome is vastly preferable to a by-election being held when it ought not to be. Furthermore, such an approach construes section 129(1) more restrictively than declaring a vacancy, and for reasons which follow, is probably as intended by the legislature.

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SOME COMMENTS ON THE SUBSECTIONS

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Constituency-based elections in Zimbabwe suggest that the loyalty of a Member of the National Assembly ought to be primarily to his or her constituents and not to the party of which he or she is a member. In Zimbabwe, however, the political parties exercise an inordinate degree of control over which party members may contest a seat in a national election, as the facts relating to Jonathan Samukange and Dr. Kereke indicate. This encourages the loyalty of any Member who might be contemplating re-election. Furthermore, the party Whip system ensures, in most instances, that Members vote in accordance with the party-line rather than in accordance with their own consciences or for the benefit of their constituents.

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The present approach to the subsections under discussion exacerbate an already less than desirable situation. The letter of the subsections appears to permit a process whereby a party might expel a member for insubordination (for example failing to obey the party Whip), inform the Speaker of the expulsion and thus remove a Member from the House, thus giving political parties a power of recall over its members in Parliament. Yet, if this were the intention, why did the Constitution not simply provide for such power of recall?

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As Tendai Biti states in his letter to the Speaker referred to above, the spirit of the provisions is really intended to deal with the issue of “floor-crossing”; that is, where a Member voluntarily

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switches his or her allegiance from the party to which he belonged at the time of the election to another, and where a person stood as an independent and then joins a political party after the poll.

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The idea is that where a person is elected to Parliament as a representative of party A and on the assumption that he or she will generally pursue that party’s policies in the House, it is unfair to the constituents if the person then conducts him or herself as if a member of party B. In such an instance, there should be a return to the electorate to determine whether the conduct of the member is in accordance with the wishes of the constituents.

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Unfortunately a technical and precise adherence to the letter of the subsections frequently yields a result precisely contrary to what may well be the spirit of the provisions. Such an approach may also result in pointless and expensive by-elections to achieve a technical (but most necessary) observance of the Constitution.

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Thus, in the cases of Dr. Kereke and Jonathan Samukange, subsection 129(1)(l) is triggered on account of the fact that, technically, both departed from and were then readmitted into Zanu PF. From the point of view of the constituents, however, both clearly subscribed to the policies of Zanu PF when elected and would have remained members of the party were they able. Any by-election in the seats they occupy would, in every likelihood, result in the two standing for re-election on a Zanu PF party ticket and winning the seats by a large majority.

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There would be no change to the status quo and the application of section 129(1)(l) would have no practical effect. In the case of MDC Renewal, if it be the case that MDC Renewal is a new party at loggerheads with MDC-T, as is the general perception, if not the legal reality, then it would be wholly appropriate that constituents who voted for candidates on the basis that they belonged to MDC-T be given an opportunity to declare whether they now wish to continue to be represented by a candidate from MDC Renewal or the party which continues to call itself MDC-T.

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CONCLUSION

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In the result, it appears that strict adherence to the letter of the Constitution may result in an outcome which is precisely contrary to the spirit, at least in all the cases under consideration here. This suggests the need for legislative intervention in order to bring the letter of the law into line with the spirit.

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However, since the present phrasing of the provisions basically gives the political parties the right of recall, as evidenced by the cases of Mutasa and Mliswa, there may be cross-party support, not for the amendment of the subsection, but for retention in its present form. If this is so, the Speaker would be well advised to develop clear and transparent principles in this regard. In the absence thereof, the Speaker will be open to the charge that his rulings are made more on the basis of political expediency than the operation of the law.