Reinstatement of Recalled Member of Parliament

The post-election period in Zimbabwe was characterised by the recall of numerous Members of Parliament who had been elected for the Citizens Coalition for Change (CCC) party.  The recalls were effected in terms of section 129(1)(k) of the Constitution, which provides:

“The seat of a Member of Parliament becomes vacant—

…

(k) 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”.

The Constitutional Court has ruled that once the Speaker of Parliament has received a letter from a political party stating that a Member of the National Assembly has left the party, the Speaker is compelled to notify the President and the Zimbabwe Electoral Commission that the Member’s seat has become vacant.

Reinstatement of Constance Chihota to Parliament

Ms Constance Chihota, a party-list CCC Member of the National Assembly, was recalled on the 7th November 2023.  She challenged her recall in an application to the High Court in Bulawayo (oddly, considering she had been elected for Mashonaland East Province).  On the 19th June the Court allowed her application and set aside her recall in a ruling by consent which reads as follows:

“1. The letter written by the 1st Respondent [the party official who wrote the recall letter] to the 3rd Respondent [the Speaker of Parliament] recalling Applicant from Parliament be and is hereby declared null and void in as far as 1st Respondent has already admitted his mistake of erroneously recalling Applicant in a subsequent letter to both the 3rd and the 4th Respondent [ZEC].  Further and alternatively:

a    The decision of the 1st Respondent to expel or arrive at the determination that applicant is no longer a member of the CCC be declared unlawful and is set aside.  In that Applicant has neither resigned nor has lost her membership with the CCC in any way.

2.   Consequently, the declaration of the constituency seat as vacant be declared null and void.

3.   It be and hereby declared that there is no vacancy for party list National Assembly seat in Mashonaland East Constituency.

4.   Consequently, there being no lawful encumbrance to the resumption of applicant’s duties, the 3rd Respondent shall immediately admit the Applicant to parliament pursuant to her reinstatement by the operation of the law following the admission of the mistake of the 1st Respondent.

5.   No order of costs against any of the respondents.”

Ms Chihota has therefore, been reinstated as a Member of the National Assembly representing Mashonaland East Province [not “Mashonaland East Constituency” as erroneously stated in the order].

Comment

The court’s ruling, it will be noted, came some seven months after Ms Chihota was recalled from Parliament, so the National Assembly has been needlessly deprived of her contribution to debates during that period and she has been unable to represent the voters who elected her.

According to sections 158(3) and 159 of the Constitution, vacancies in Parliament must be filled within three months.  The vacancy caused by Ms Chihota’s recall clearly wasn’t filled within the three-month period and it is hard to see how it could have been in view of her court challenge.  Even so, the Constitution was not complied with.  This is just one of the many problems caused by the recall provisions in section 129 of the Constitution:  it is not possible to resolve disputes arising from recalls before elections have to be held to fill the seats vacated by the recalled parliamentarians.  What would have happened if an election had been held and a new member elected to fill Ms Chihota’s seat, it is impossible to say.

One way to avoid this particular problem would be to enact a law stating that before a political party can write to the Speaker or President of the Senate recalling a member of the National Assembly or the Senate, all disputes over whether the member has ceased to belong to the party must have been settled.  An Act of Parliament could provide for this and it would not be necessary to amend the Constitution.

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