via Bhasikiti takes case to ConCourt | The Herald June 22, 2015
Expelled Mwenezi East National Assembly member Mr Kudakwashe Bhasikiti has approached the Constitutional Court seeking to block President Mugabe from calling a by-election in the constituency he formally represented.
Pending determination of his challenge against Zanu-PF’s decision to fire him from the party, he wants the Constitutional Court to stop the President from proclaiming and setting a date for an election. Mr Bhasikiti, who last week lost his bid to stop National Assembly Speaker Advocate Jacob Mudenda from declaring the seat vacant, has filed an urgent chamber application to stop the by-election.
Chief Justice Godfrey Chidyausiku on Thursday met the parties in his chambers and set down the hearing of the challenge for Thursday before the full bench of the Constitutional Court.
In terms of the law, after the Speaker announces the vacancy, the President is expected to call for a by-election and proclaim the date. Mr Bhasikiti, through his lawyer Mr Tendai Biti, wants the Constitutional Court to declare that the communication by Zanu-PF and the subsequent announcement of the vacancy on June 11 breached his right to due process of the law as enshrined under Section 56 (1) of the Constitution of Zimbabwe.
Alternatively, Mr Bhasikiti wants the court to direct that his High Court challenge against expulsion from Zanu-PF be heard on an urgent basis before any proclaimed by-election for Mwenezi East.
President Mugabe, Zanu-PF, Adv Mudenda and the Zimbabwe Electoral Commission were listed as respondents in the constitutional challenge.
Mr Terence Hussein represented President Mugabe and Zanu-PF while Mr Biti appeared for Mr Bhasikiti. Mr Tawanda Kanengoni represented the Zimbabwe Electoral Commission and Mr Simplisius Chihambakwe acted for Adv Mudenda.
In the court papers, Mr Bhasikiti submitted that he was fired from Zanu-PF on May 21 this year. He filed an application for review of the revolutionary party’s decision to fire him at the High Court under case number HC5285 /15.
On June 9 this year, Mr Bhasikiti filed an urgent chamber application seeking to prevent Adv Mudenda from announcing the vacancy in terms of Section 129 (1) (k) of the Electoral Act. While the urgent chamber application was pending, Zanu-PF wrote to the Speaker notifying him of the expulsion of Mr Bhasikiti from the party. That resulted in Adv Mudenda announcing the vacancy, a development that caused Justice David Mangota to dismiss the application on the basis that the matter had been overtaken by events.
Mr Bhasikiti, in his papers, argued that the Speaker’s actions were illegal.
“The actions of the second respondent (Zanu-PF) were clearly malicious and in breach of the legality and constitutionalism. Quite rightly, Justice Mangota granted an order for costs on a superior scale against the Speaker of the National Assembly,” the papers read.
Mr Bhasikiti argued that it was just and fair for the by-election to be called after the determination of his High Court challenge.
“It would be a travesty of justice for the by-election to be called without the applicant’s application for review having been heard. Once the by-election has been called, the applicant has no other remedies or relief and loses his seat when it is clear that the actions taken against him by the second respondent (Zanu-PF) are unconstitutional and in breach of all known tenets of natural justice and rule of law,” reads the papers.
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