via President backs Speaker Mudenda | The Herald March 27, 2015
President Mugabe said former Zanu-PF secretary for administration Mr Didymus Mutasa and his nephew Mr Temba Mliswa automatically lost their seats by operation of law and that they had no basis to accuse the Speaker of Parliament Advocate Jacob Mudenda of “declaring the seats vacant”.
The duo is challenging their expulsion from Parliament.
Messrs Mutasa and Mliswa lost the Headlands and Hurungwe West constituencies, respectively after their dismissal from the ruling Zanu-PF party.
They were expelled from Zanu-PF a month ago after they continued to undermine the revolutionary party and its leadership despite several warnings to desist from doing so.
In the heads of argument filed yesterday by Mr Terrence Hussein on behalf of President Mugabe at the Constitutional Court, it is argued that Advocate Jacob Mudenda did not declare the seats vacant, but the law clearly states that a notice from the sponsoring party recalling the legislators was one that, at law, declares the seats vacant.
“Contrary to the understanding of the applicants, it is not the Speaker who makes a declaration but the sponsoring political party in a notice to him.
“The section is therefore a deeming provision and is not subject to the actions of Parliament or the Speaker.
“Clearly evident from the simple and unambiguous language of this section that a vacancy occurs in Parliament immediately upon the sponsoring party giving written notice to the Speaker that the member has ceased to belong to it,” reads the heads of argument.
The Speaker’s functions, according to the heads, start when he is required to notify the Zimbabwe Electoral Commission of the vacancy and that the complaint by the duo against Adv Mudenda was misplaced.
“The Speaker’s functions only kick in after the vacancy has occurred by operation of the law wherein he is required in terms of the Act to notify the President and the Zimbabwe Electoral Commission of the vacancy that has occurred by the operation of law,” argued Mr Hussein.
The President, according to the filed papers, also correctly acted on the information he received and proclaimed the by-election for the vacant constituencies.
It is argued that the pair did not challenge President Mugabe’s conduct in the papers because there was no provision in the Constitution for him to adjudicate upon a notification received from the Speaker.
It was argued that Mr Mutasa and Mr Mliswa were wasting the court’s time and that of the parties involved, and Mr Hussein urged the court to dismiss the application with costs.
Messrs Mutasa and Mliswa, in their own heads, argued that Section 129(1) (k) which was invoked to fire them called for the Speaker to establish whether the notice from the political party was bona fide and whether the legislators in question have lawfully ceased to be party members. However, the duo argued that the two requirements were not met.
The two argued that the Speaker could have informed them in advance and sought to hear their side of the story before making a decision.
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 seek to bar any by-election in Headlands and Hurungwe West constituencies, respectively.
National Assembly Speaker Advocate Mudenda, President Mugabe and the chairperson of the Zimbabwe Electoral Commission, Justice Rita Makarau, were 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 that their right to equal protection of the law enshrined under 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, 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.
The duo seeks an order nullifying the Speaker’s announcement and the declaration.
They also seek an order declaring them legitimate members of the National Assembly for their respective constituencies.
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