Recalled Biti group approaches ConCourt

via Recalled Biti group approaches ConCourt – NewZimbabwe 25 March 2015

THE MDC Renewal formation has approached the Constitutional Court seeking an injunction to overturn Parliament Speaker Jacob Mudenda’s ruling that resulted in the expulsion of some 21 legislators including former Finance Minister Tendai Biti.

In affidavits presented to the ConCourt Tuesday, the 17 MPs and four Senators argued that Mudenda and his Senate counterpart Edna Madzongwe could not legally make a ruling on the issue because they were “functus officio”.

Their argument was based on the fact that the Madzongwe and Mudenda had already made two rulings indicating that the quarrelling opposition formations needed a court order first in order for Parliament to wade into the matter.

In his submissions to the court, Kambuzuma legislator Willas Madzimure argued that the contentious section 129 (1) (k) in the new constitution “only exists to prevent floor crossing”.

“Put simply, I contend that section 129 (1) (k) is not a recall position, the particular position was inserted into our law originally by the 9th amendment to the erstwhile Zimbabwean Constitution which was passed as Act No 31 of 1989.

“That amendment was imposed in our law to deal with Edgar Tekere who had formed his own party, ZUM, having been elected on a Zanu seat.

“The tone of section 129 just like context of the old section 41 was to respect democracy and fundamental position that a member who has been elected cannot lose his seat in any manner that infringes democracy,” said Madzimure.

He added: “Indeed if the constitution had general right of recall, then section 129 (1) (k) would have been worded so differently to simply state that a political party can at any time withdraw or recall any elected Member of Parliament.

“The manner in which the provision is worded means that there is no right of recall.”

Tekere, the late former Zanu PF secretary general left the party to form the Zimbabwe Unity Movement in the late 80s and participated in the 1990 election losing to President Robert Mugabe in the presidential poll.

Zanu PF has already recalled two of its former legislators, Didymus Mutasa of Headlands and Temba Mliswa formerly of Hurungwe West.

Biti, who is representing the expelled MPs, also lost his Harare East seat in the same manner after Mudenda ruled that his group had not sought legal recourse to overturn Morgan Tsvangirai’s October 2014 congress which was convened after the split earlier that year.

However, Madzimure said, “Contrary to the assertion in the Speaker’s ruling that ‘Hon Biti and others never approached the courts to claim legitimacy of their leadership of the MDC-T party’, the opposite is the law.

“There is no legal duty on any formation of a political party that has split to interdict the other from holding its meetings.

“It would be unconstitutional to do so because it is an infringement of freedom of association of the persons concerned.”

He added that it was incumbent upon the formation of a political party that has split seeking to invoke section 129 (1) (k), to seek legal recourse by obtaining a final court order confirming that it is the political party “concerned”.

“If there is a dispute between formations of a political party that has split, it is impossible to say that a member has ‘ceased’ to belong to the political party concerned.

“The Speaker must not act until the courts have resolved it. It is ridiculous and clearly contrary to the law for the Speaker to choose to toe the line of his chosen formation, leaving it to the members belonging to the other formation to approach the courts,” Madzimure said.