Tendai Biti

Tendai Biti

Daniel Nemukuyu Senior Court Reporter
By-elections to fill in vacant seats in the National Assembly will proceed on June 10 without any hindrance after the Constitutional Court yesterday threw out an application in which some 21 members of the MDC Renewal Team were contesting their expulsion from Parliament.

Legal experts said the Tendai Biti-led group had reached a dead end.

The Constitutional Court ruled that the case of 17 ex-members of the National Assembly and four others booted from the Senate lacked merit.

Detailed reasons for the decision, Chief Justice Chidyausiku said, will be availed in due course.

The Chief Justice said:

“After considering the arguments from all the parties and the papers filed of record, the court unanimously concludes that both applications (by the four ex-senators and one by the 17) have no merit and are hereby dismissed with costs on an ordinary scale . . .”

Seasoned lawyer Mr Simplisius Chihambakwe, who also represented National Assembly Speaker Advocate Jacob Mudenda in the court case, said the 21 legislators were only left with the option of registering to participate in the by-election.

“The Constitutional Court is the highest court in the land and there is no longer room for the 21 to appeal. There is only one opening for them to rush and submit their papers to participate in the by-election. They have to utilise the chance, failure which they have to wait for the 2018 general election,” he said.

Mr Terrence Hussein said by-elections will now go ahead unhindered.

“The ruling has paved the way for by-elections to be conducted as planned. The decision also means that the actions of Adv Mudenda and Cde Edna Madzongwe (Senate president) were correct,” he said.

The latest decision followed the dismissal of a related case against fired former Zanu-PF secretary for Administration Mr Didymus Mutasa and his nephew Mr Temba Mliswa by the same court recently.

In the court hearing, Prof Lovemore Madhuku, Adv Lewis Uriri and Adv Webster Chinamhora appeared for the 21 MPs while Mr Simplisius Chihambakwe and Mr Kalvin Tundu acted for National Assembly Speaker Adv Mudenda.

Attorney General Adv Prince Machaya represented President Mugabe while Mr Demo appeared for Senate president Cde Edna Madzongwe.

Mr Tawanda Kanengoni acted for the Zimbabwe Electoral Commission.

Prof Madhuku argued that the MDC-T, which won the 21 seats in the 2013 election split into two formations and that none of the factions had the right to recall others from Parliament.

He argued that none of the two formations (Morgan Tsvangirai-led and the Tendai Biti-led factions) had the right to invoke Section 129(1) (k), which declared the 21 seats vacant.

He likened the MDC-T split scenario to a situation where an original party that participated in an election dissolved adding that under the circumstances all MPs were entitled to stay in Parliament until the expiration of their term.

“At the time when MDC-T sought to recall the MPs, the original party that participated in the 2013 July 31 poll was no longer in existence.

“Two formations emerged from the split and invocation of Section 129(1) (k) of the Constitution does not apply,” said Prof Madhuku.

Prof Madhuku argued that there was no law regulating operation of political parties and registration thereof in Zimbabwe and that there was no basis for the Speaker and Senate president to view the Tsvangirai-led group as the legitimate MDC-T in the absence of a court order.

However, Mr Chihambakwe counter-argued that Adv Mudenda correctly announced the vacancies because the Constitution of Zimbabwe obliged him to do so.

He said the property ownership dispute involving MDC-T that was pending at the High Court had nothing to do with the contested actions of the Speaker and that Parliament’s actions were above board.

Mr Chihambakwe described the court application by the 21 as an abuse of the court process.

He urged the court to show its displeasure by dismissing the application with costs on a higher scale.

Adv Machaya told the court that the 21 applicants did not challenge President Mugabe’s actions and that he had nothing much to say in relation to the application.

He, however, emphasised that President Mugabe was obliged at law to make a proclamation and call for by-election in the affected constituencies after being formally notified of the existence of the vacancies.

Mr Kanengoni, on behalf of ZEC, said his client would simply abide by the decision of the court and he prayed for costs to be awarded on a normal scale.