via Kereke files urgent application | The Herald by Daniel Nemukuyu October 15, 2013
EXPELLED Bikita West National Assembly member Dr Munyaradzi Kereke yesterday filed an application at the Constitutional Court to have his expulsion heard on an urgent basis. The law requires that whenever an applicant in a constitutional case wants his or her matter to be treated with urgency, a separate urgent chamber application has to be filed after the main challenge.
Dr Kereke last week, filed a constitutional application challenging his expulsion from the House of Assembly.
He argued that the Bikita West constituency has already been declared vacant adding that a by-election could be called at any time.
He said if his constitutional application is delayed his case would be an academic one as someone else can be fielded in violation of his rights.
The Registrar of the Constitutional Court is yet to set down the urgent application for hearing.
If the court finds urgency in the case, the main challenge would be heard on an urgent basis but if the court rules otherwise, it would be heard like any other normal constitutional matter.
Meanwhile, late yesterday afternoon Advocate Fred Gijima filed a notice of appearance to defend the case on behalf of Zanu-PF.
Adv Gijima also confirmed receiving the urgent application by Dr Kereke.
Mr Tawanda Kanengoni of Kanengoni and Nyika law firm said they were yet to file opposing papers on behalf of ZEC.
“We are representing ZEC in the matter and we are likely to file our opposing papers on Wednesday (tomorrow),” he said.
Dr Kereke romped to victory in Bikita West on a Zanu-PF ticket, beating Cde Elias Msakwa (Zanu-PF) and Mr Heya Shoko (MDC-T) after getting the nod to stand on that party’s ticket from the party’s Masvingo provincial committee.
Some elements in the revolutionary party, however, disowned him, saying they recognised Cde Msakwa as the official candidate.
Acting on the letter from Zanu-PF, Cde Mudenda invoked section 129 (1) (k) of the Constitution relating to the tenure of a Member of Parliament to declare the Bikita West seat vacant.
In his challenge, Dr Kereke said the section which both Zanu-PF and the Speaker relied on to expel him from Parliament did not apply to his situation.
Dr Kereke cited the Speaker of the National Assembly, Zanu-PF and the Zimbabwe Electoral Commission as respondents. Section 129 (1) (k) of the Constitution stipulates that: “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 Senate, as the case may be, has declared that the Member has ceased to belong to it.”
In his papers, Dr Kereke said the section did not apply to his situation because he ceased to be a member of Zanu-PF on July 10, as evidenced by a letter written by Cde Mutasa.
Dr Kereke argued that Zanu-PF recognised the ‘explicit fact’ that he ceased to be a member of that party prior to July 31, 2013 and suggested that he was an independent candidate, as widely publicised in the media.
By this time, Dr Kereke said, it was too late for the Zimbabwe Electoral Commission to change the ballot papers and indicate that he was an independent candidate.
The letter written to the Speaker reads as follows: “I write, Honourable Speaker, to advise that Honourable Dr Munyaradzi Kereke who stood as a member of the House of Assembly for Bikita West Constituency, had ceased to be a member of Zanu-PF on July 10, 2013.”
Dr Kereke said: “It is clear that by July 31 2013, the second respondent (Zanu-PF) did not consider me to be its sponsored candidate. The electorate knew that I was not a Zanu-PF candidate.
“Accordingly, therefore, the notification to the Speaker is a clear misapplication of section 129 (1) (k) of the Constitution.”
He submitted that Cde Mudenda had disregarded representations he made to him and that he was not given an audience before a determination was made and subsequently before the public announcement.
Dr Kereke said that in constitutional construction, one did not depart from the literal meaning of legal words used by the legislature unless doing so would lead to absurdity, saying the meaning of section 129 (1) (k) was clear and leads to no absurdity.