The recall of members of parliament and councillors elected under the Citizens Coalition for Change, Zimbabwe’s main opposition party, has caused quite a stir and debate within Zimbabwean social and mainstream media here and here.
In a letter stamped on the 3rd of October 2023 by the Parliament of Zimbabwe, Sengezo Tshabangu,who signed off as the CCC Interim Secretary General wrote to the Speaker of Parliament Jacob Mudenda notifying him that 15 CCC representatives had ceased to be members of the CCC and, therefore, were being recalled from Parliament.
How does the recall of Members of Parliament work in Zimbabwe? What are the processes?
What is a Parliamentary recall?
The recall provision was essentially designed to ring fence the interests of political parties in a multi party democracy such as Zimbabwe. How, why and when an MP loses their seat is governed by the Constitution of Zimbabwe. Section 129 (1) (k) of the Constitution states that, “The seat of a Member 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”.
There are two critical issues in this provision:
- The MP must have ceased to be a member of the political party that sponsored his or her election to Parliament.
- The concerned political party must send written notice to the Speaker of Parliament or the Senate President informing them that the Member has ceased to belong to the party.
The provision broadly refers to the ‘political party’ without specifying who within that party.
The recall provision has been used by both major political parties in Parliament over the last 10 years since the enactment of the new Constitution. However, the recall provision continues to raise questions among citizens. What does it mean that a member has ceased to belong to a political party? What if the member disputes that he or she has ceased to belong to the political party? In this whole process, what role do the Speaker of Parliament and President of the Senate play?
Court Challenges
To get answers to some of these questions, members on both sides of the political divide have previously appealed to the Courts after being recalled from Parliament.Due to the absence of guiding legislation, interpretation of the recall provision has been left solely to the courts of law.
Didymus Mutasa and Temba Mliswa vs Speaker of the National Assembly and others
In 2015, ZANU PF members Didymus Mutasa and Temba Mliswa were expelled following a meeting of the party Politburo on 18 February 2015. On 3 March 2015 the Speaker of the National Assembly announced that the two seats in the National Assembly had become vacant in terms of s 129(1)(k) of the Constitution.
The issue that fell for determination by the Court was whether any of the applicants’ fundamental human rights were violated by the announcement and/or declaration that their seats in the National Assembly had become vacant in terms of s 129(1)(k) of the Constitution. The fundamental rights that the applicants alleged had been violated were the right to equal protection and benefit of the law in terms of s 56(1), the right to stand for election for public office and, if elected, to hold such office in terms of s 67(3)(b), the right to administrative justice in terms of s 68, and the right to a fair hearing in terms of s 69(3), of the Constitution.
The court ruled that, ‘The ordinary meaning of the words used in s 129(1)(k) of the Constitution is that a Member of Parliament ceases to be a Member when he or she ceases 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, has declared that the Member has ceased to belong to it. The provisions of s 129(1)(k) of the Constitution do not clothe the Speaker or the President of the Senate with power to inquire into the legality or otherwise of the fact of cessation of membership of the political party concerned by the Member of Parliament’.
Willias Madzimure and Sekai Holland and others vs President of the Senate and Speaker of the National Assembly and others
In 2015, again, two constitutional applications, No. CCZ 19/15 and No. CCZ 20/15, were filed with the Registrar of the Constitutional Court on different dates seeking an order setting aside the announcement by the Speaker of the National Assembly and the President of the Senate that the applicants’ seats in Parliament had become vacant because the applicants had ceased to belong to the political party of which they were Members when elected to Parliament.
The party in question was the Movement for Democratic Change-T, led by Morgan Tsvangirayi.
In its judgement, the court noted that the ‘applicants were elected on MDC-T tickets. They had differences with other members of the MDC-T concerning the style of leadership of the Party. They convened a meeting at the Mandel Training Centre, discussed their grievances and resolved to leave the MDC-T’.
The case was found to be without merit and the recalls were upheld.
Kucaca Ivumile Phulu and others vs People’s Democratic Party (Matibenga’s Breakaway Splinter) and Jacob Mudenda and others
In this case heard in 2021, the High Court noted that ‘Prior to the recall, the applicants’ membership to Parliament followed their success in the national general election held on 31 July 2018. They participated in that election and won. They sat in Parliament on the ticket of a political party or political formation or a coalition of political parties known as the Movement for Democratic Change – Alliance, or MDC – Alliance, the leader of which was a Mr Nelson Chamisa. Respondents 1 and 2 also participated in that election but lost. Their participation was on the ticket of another political party or political formation or coalition of political parties called the Rainbow Coalition, the leader of which was a former Vice-President of this country, Mrs Joyce Mujuru’.
The court ruled that, ‘The power of recall from Parliament in s 129(1)(k) of the Constitution is reposed in the political party the Member of Parliament was a member of at the time of the election. The first and second respondents were not members of the seventh applicant at the time of the 2018 general election, or at any time thereafter. They had no power to recall the applicants’.
The applicants were restored to their positions as National Assembly members.
Conclusion
The courts have made it clear that a vacancy based on recalls happens once the political party of which an MP was a member at the time of the election has sent a written notice to the Speaker of Parliament or President of the Senate. The vacancy is created by operation of the law, the moment two conditions are fulfilled: first, the cessation of an MP’s membership of the sponsoring party and secondly, receipt of a written notice by the Speaker or President of the Senate.
As the CCC recall court is set to go before the courts on 2 November 2023 following a case management meeting held before Justice Munamato Mutevedzi on 17 October 2023, the key issues to note from previous court rulings are:
- The ordinary meaning of the words used in s 129(1)(k) of the Constitution is that a Member of Parliament ceases to be a Member when he or she ceases 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, has declared that the Member has ceased to belong to it. The provisions of s 129(1)(k) of the Constitution do not clothe the Speaker or the President of the Senate with power to inquire into the legality or otherwise of the fact of cessation of membership of the political party concerned by the Member of Parliament. (Didymus Mutasa and Temba Mliswa vs Speaker of National Assembly and others)
- Section 129(1)(k) of the Constitution envisages that every political party as an organisation has in its administrative structure an individual tasked with the duty of communicating the fact of the Member of Parliament having ceased to be its member in the appropriate form to the Speaker or the President of the Senate. The Constitution places a duty on the Speaker or the President of the Senate to act on the notification from a political party that communicates the prescribed fact in the prescribed form. Nothing in the provisions of s 129(1)(k) of the Constitution empowers the Speaker or the President of the Senate to interfere with the internal affairs of political parties and their members. (Didymus Mutasa and Temba Mliswa vs Speaker of National Assembly and others)
- The status of having ceased to be a member of the political party concerned is a matter of fact, the legality of which is determined by reference to the provisions of the constitution of the political party concerned. It may be a fact resulting from a process of expulsion or voluntary resignation. When it occurs, it remains a matter affecting the internal affairs of the political party concerned. It may remain so without any effect on the tenure of seat of the Member of Parliament unless the political party concerned takes the action prescribed under section 129(1)(k) of the Constitution and communicates the fact that the Member of Parliament has ceased to belong to it to the person appointed to receive the communication. (Willias Madzimure and Sekai Holland and Others vs President of the Senate and Speaker of the National Assembly and others).
- The purpose of the written notice by the political party concerned, disclosing to a third party a fact relating to its internal relationship with a member, would have been to reclaim the seat in Parliament won by the Member of Parliament on its ticket. Section 129(1)(k) of the Constitution makes it clear that the legal effect of the receipt by the Speaker or the President of the Senate of a written notice complying with all the formal and substantive requirements is to create a vacancy in the seat in Parliament occupied by the Member who has ceased to be a member of the political party of which he or she was a member when elected to Parliament. (Willias Madzimure and Sekai Holland and Others vs President of the Senate and Speaker of the National Assembly and others).
- A vacancy in the seat in Parliament is not created by an act of the Speaker or the President of the Senate. It is created as a direct legal consequence of events, the origin of which lies outside Parliament. Termination of the tenure of the right of the Member of Parliament to occupy the seat is what the Constitution, through section 129(1)(k), says must happen when all the procedural and substantive requirements of the provision have been met. (Willias Madzimure and Sekai Holland and Others vs President of the Senate and Speaker of the National Assembly and others).
- The Speaker or the President of the Senate would have had no control over the events affecting the relationship between the Member of Parliament and his or her political party. A Member of Parliament whose termination of the membership of a political party is by expulsion is not expelled from Parliament. He or she is expelled from the political party. (Willias Madzimure and Sekai Holland and Others vs President of the Senate and Speaker of the National Assembly and others).
- The accusation against the Speaker and the President of the Senate of having expelled the applicants from Parliament shows a failure by the applicants to understand the rôle of the Speaker or the President of the Senate in the process prescribed by section 129(1)(k) of the Constitution leading to the creation of a vacancy in the seat of a Member of Parliament. The accusation also suggests that the Speaker or the President of the Senate is required to involve himself or herself in some quasi-judicial inquiry into the conduct of the Member of Parliament in which he or she finds the Member guilty of some form of misconduct for which expulsion from Parliament becomes the penalty. The rôle of the Speaker or the President of the Senate in the process leading to the creation of a vacancy in the seat of a Member of Parliament in terms of section 129(1)(k) of the Constitution is facilitative. It is not judicial in nature. (Willias Madzimure and Sekai Holland and Others vs President of the Senate and Speaker of the National Assembly and others).
