There is no legal ambiguity whatsoever on the expulsion status of six MDC Alliance legislators, including party vice president Tendai Biti, following their recall last week, constitutional lawyer Professor Lovemore has said.
Biti and colleagues Settlement Chikwinya, William Madzimire, Sichelesile Mahlangu, Regai Tsunga, and Kucaca Phulu, were removed from Parliament by an obscure splinter of their former People’s Democratic Party (PDP) saying they had ceased to represent its interests.
Their recall raised legal questions after House Speaker Jacob Mudenda simply read out a letter from the PDP seeking the lawmakers’ expulsion without announcing outright that their seats had fallen vacant.
Legal watchdog Veritas opined on Monday that the recalls remained an open question due to “confused and hotly disputed” facts, “hence it is too early to say that the members have lost their seats.”
The Speaker then read out the list of other, addressees to whom the letter had been copied. According to Hansard, the Speaker then stopped at that point:
Veritas says he did not say what he has invariably said in the past to the effect that the seats concerned had become vacant by operation of law and that the President and the Zimbabwe Electoral Commission would be informed accordingly.
This may be neither here nor there – the loss of a Member’s seat is not triggered by the Speaker’s declaration in the House that there is a vacancy.
According to Veritas, before a Member can lose his or her seat under section 149(1)(k) of the Constitution:
· the Member must have ceased to belong to the political party of which he or she was a member when elected, and
· a representative of that political party must have sent a written notice to the Speaker declaring that the Member has ceased to belong to the party.
In the case of these six Members it is not clear that they have in fact ceased to belong to the PDP or the MDC-A, whichever was the party they represented in the last election – the facts are confused and hotly disputed, opines the legal watchdog.
Nor is it clear that the person who wrote the letter to the Speaker had the party’s authority to write it – a judgment of the High Court, which may have given the person authority is under appeal so the matter is sub judice. Hence it is too early to say that the Members have lost their seats.
However, Madhuku said the law was clear and that Biti and his colleagues were no longer lawmakers.
“According to our constitutional law as now spelled out authoritatively by the Constitutional Court, the vacancy of a Member of Parliament who is being recalled arises at the moment the Speaker or the President of the Senate receives the letter that is contemplated in Section 129 (1) (k),” Madhuku argued.
“So the vacancy arises at the moment of receipt of the letter. The vacancy does not arise at the moment the Speaker makes the announcement in the National Assembly or the President of the Senate making an announcement in the Senate.”
He added that Mudenda did not have to pronounce the removals verbatim.
“It is not relevant what the speaker says in parliament or how he words his announcement is not relevant.
“What is only relevant is the notification by him to say that I did receive, is just but public information to say that the vacancy did arise earlier on,” the law professor said.
“So legally if you want to check at what point the vacancy rose you would have to check at what point the letter was officially received by the Speaker or the President of the Senate.”
The MDC Alliance has since last year lost about 40 MPs and 81 councilors through recalls, mainly by the rival MDC-T led by Douglas Mwonzora, seen by critics as a Zanu-PF puppet.
-Zwnews/ Zimlive
