Source: Khupe raps Parliament | The Herald April 19, 2018
Fidelis Munyoro Chief Court Reporter
Ousted MDC-T vice president Dr Thokozani Khupe has accused Parliament of turning a blind eye to its constitutional obligation to protect her tenure as a Member of Parliament when it endorsed her expulsion from the august House. Dr Khupe, who was the opposition party’s Proportional Representation Member of Parliament for Bulawayo Metropolitan, is presently challenging her expulsion from Parliament.
Last Thursday, MDC-T leader Mr Nelson Chamisa wrote to Speaker of Parliament Advocate Jacob Mudenda, claiming that Dr Khupe no longer represented the party’s interest.
The aggrieved politician yesterday filed her challenge at the Constitutional Court citing Parliament, Speaker of Parliament Advocate Mudenda and MDC-T chairman Mr Morgan Komichi as respondents.
Dr Khupe, through her lawyer Professor Lovemore Madhuku, wants an order declaring that Parliament failed to fulfil its constitutional obligation to protect the tenure of the seat of a Member of Parliament as required by Sections 119(1) and 129 of the Constitution.
She also wants the court to reinstate her as Member of Parliament, including declaring Mr Komichi’s letter to Parliament, which was written in terms of Section 129(1)(k) of the Constitution, null and void.
Section 129 (1) (k) of the Constitution of Zimbabwe provides that: “A seat of a Member of Parliament 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.”
It is Dr Khupe’s contention that both Sections 119(1) and 129 of the Constitution impose a duty on Parliament to subject every dispute that impacts on the tenure of a seat of a Member of Parliament to the courts for determination before recognising and acting on the remedy provided for through Section 129(1)(k).
“Section 129(1)(k) has no automatic effect,” stated Dr Khupe in her papers.
“If there is a dispute between a member and any group or association purporting to be the ‘political party concerned’ within the meaning of that expression in Section 129(1)(k), the first respondent (Parliament) has a constitutional obligation to protect the tenure of the seat of a member until the dispute relating to the requirements in Section 129(1)(k) has been authoritatively resolved by the courts.”
She further argues that whenever Parliament is put on notice by any of its members regarding a potential dispute in respect of the requirements of Section 129(1)(k), it has a constitutional obligation to put into motion a process akin to interpleader proceedings and require a court of law to resolve the dispute.
An interpleader is a suit pleaded between two parties to determine a matter of claim or right to property held by a third party.
“It is for the first respondent itself to invite a court to resolve the dispute given its constitutional obligation to protect the tenure of seats of its members,” she argues.
“I believe that the view that all that is required for a vacancy to arise under Section 129(1)(k) is for the second respondent (Speaker of National Assembly) to receive a written notice from the political party concerned is incorrect for the simple reason that it does not take into account the constitutional obligations I have outlined.”
Dr Khupe also argues that whenever Parliament’s attention is drawn to a split or potential split in a political party, it has a constitutional obligation not to recognise a written notice from one of the factions without either taking the matter to court under an interpleader of sorts or referring the parties to a court for determination.
“There is another constitutional obligation that the first respondent must act reasonably in everything it does.
“Where it acts irrationally, it breaches its constitutional obligations.”
Dr Khupe was elected Member of Parliament under Section 124(1) (b) representing Bulawayo Metropolitan Province.
The Chamisa-led MDC-T is yet to respond to the Dr Khupe’s application, which she wants to be treated with urgency.
Until her expulsion last week, Dr Khupe was the leader of the opposition party in the august House by virtue of her being the party’s deputy president.
The opposition party has become increasingly fractious, especially after the death of its founding leader Mr Morgan Tsvangirai on February 14.
Dr Khupe was left the acting president of the party when Mr Tsvangirai was confined to his hospital bed in South Africa until his death.
Mr Chamisa, who has had a nasty fallout with Dr Khupe over the leadership of the opposition party since then, last week recalled Dr Khupe from Parliament after MDC-T’s national council – regarded as the opposition party’s supreme decision-making organ in between congresses – unanimously agreed to expel her from the party accusing her of misconduct and intransigence.