Daniel Nemukuyu Senior Court Reporter
FORMER Zanu-PF secretary for administration Mr Didymus Mutasa and his nephew Mr Temba Mliswa have argued that National Assembly Speaker Advocate Jacob Mudenda erred in declaring their parliamentary seats vacant without establishing the legal validity of the duo’s expulsion from the rulingparty.
In the heads of argument filed on Tuesday at the Constitutional Court ahead of the April 1 hearing, Mr Mutasa and Mr Mliswa said Adv Mudenda rubber-stamped the position of Zanu-PF without satisfying himself that the expulsion was indeed valid.
Mr Mutasa and Mr Mliswa lost the Headlands and Hurungwe West constituencies respectively after their dismissal from Zanu-PF.
They were expelled from the ruling party a month ago for continuing to undermine the revolutionary party and its leadership despite several warnings to desist from doing so. Professor Lovemore Madhuku, Mr Tafadzwa Mugabe and Mr Phillip Nyakutombwa of Nyakutombwa, Mugabe Legal Counsel are representing the two politicians while Mr Terrence Hussein is acting for President Mugabe.
Mr Simplisius Chihambakwe is representing the Parliament of Zimbabwe.
Mliswa and Mutasa argued that Section 129(1) (k) which was invoked to fire them requires the Speaker to establish whether the notice from the political party was bona fide and whether they had lawfully ceased to be party members. They argued that the two requirements were not met.
“The Speaker or President of the Senate has a legal duty to be satisfied that both requirements are met before announcing and/or declaring the seat vacant.
“Clearly, therefore, a member only ceases to belong to his or her political party within the contemplation of Section 129(1) (k) if he or she lawfully ceased to be a member.
“An unlawful termination of membership at the instance of the political party does not make a member cease to be a member within the scope of Section 129(1) (k). Section 129(1) (k) cannot be read in any other way. It cannot accommodate unlawful termination of membership given the unqualified nature of a citizen’s rights in Section 67 of the Constitution to make political choices, including the right to participate in the activities of a political party of one’s choice,” argued the duo.
They said the Speaker should have informed them in advance and sought to hear their side of the story before making a decision.
“In ascertaining whether or not the requirements are met, it is mandatory for the Speaker or President of the Senate to ascertain the views of the Member of Parliament concerned regarding the two requirements.
“Thus, if the Speaker or President of Senate receives a written notice from a political party seeking to invoke Section 129(1) (k), he or she must inform the Member of Parliament concerned of the existence of the notice and specifically ascertain the member’s views on whether or not he or she has ceased to belong to the political party and whether or not the notice is bona fide,” reads the heads of argu- ment.
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 want to bar by-elections in Headlands and Hurungwe West constituencies to replace them as MPs.
National Assembly Speaker Advocate Jacob Mudenda, President Mugabe and the chairperson of the Zimbabwe Electoral Commission, Justice Rita Makarau, are 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 say their right to protection of the law enshrined in 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 expelling them from Parliament, they allege.
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.