What about Samkange’s Seat, Mr Speaker?

via What about Samkange’s Seat, Mr Speaker? | newzimbabweconstitution 5 March 2015

The last few days have been dominated by the controversy over the expulsion of Didymus Mutasa and Temba Mliswa both from Zanu PF and Parliament. Their expulsion from Parliament was on the basis that they had ceased to be Zanu PF members when they were expelled by the party the previous week.

They lost their seats on the basis of s. 129(1)(k) of the Constitution, which provides that an MP loses his seat when he or she ceases to be a member of the political party that he represented at the election and that political party has communicated to the Speaker of Parliament that he or she is no longer its member.

However, two other cases which require attention seem to have escaped the radar. The first is the case of Munyaradzi Kereke, the MP for Bikita West and the second is the case of Jonathan Samkange, representing Mudzi South.

The Kereke case is mired in some controversy and since it has been dealt with before, this piece will focus on the more straightforward case of Samkange, and questions why the Speaker has been slow to act in the face of clear legal provisions and facts.

In terms of s. 129(1) of the Constitution, an MP’s seat becomes vacant,

“if the Member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party”.

The effect of this clause is that when a person contests as an independent, he loses his seat if he joins a political party during the tenure of Parliament. This could be called the “Jonathan Moyo-Clause” and elsewhere in my forthcoming book, I explain the origins of this moniker. The case of Samkange falls under this clause.

Samkange was one of several Zanu PF members who contested in the 2013 elections against the directives of their party. The party had selected other candidates. As it happened, Samkange went on to win the election, beating the Zanu PF’s official candidate. He was sworn-in to Parliament as an independent.

As an independent, if he chose during the tenure of Parliament to join a political party, he would be doing so at the pain of losing his seat in terms of s. 129(1)(l).

Last week, at the same time that Zanu PF announced the expulsion of Mutasa and Mliswa, they also announced the readmission of Samkange and Munyaradzi Kereke, another former renegade, into the party. This event should trigger the operation of s. 129(1)(l) since, as we have seen, Samkange was independent MP, who was not a member of a political party when he was elected to Parliament, but had become a member of a political party by their readmission into Zanu PF.

The expectation is therefore that the Speaker of Parliament would declare that the seat has become vacant, triggering by-elections in terms of s. 158(2) of the Constitution and relevant provisions of the Electoral Law.

While the Samkange case is more straightforward, the case of Kereke, which has previously been considered in these pages, has some complications. There is a view that there is no need to declare the seat vacant because Kereke was never an independent when he contested in the election, but that he did so as a Zanu PF candidate. But it is a classic case of one wanting to have the cake and eating it at the same time.

Although Samkange’s case is quite plain, that an independent MP is now a member of a political party, therefore triggering the application of s. 129(1)(l), interestingly, the Speaker has not demonstrated the same levels of zeal and enthusiasm to declare these seats vacant, as he has demonstrated in the Mutasa and Mliswa cases.

Responding to a question from the MDC-T Chief Whip, Innocent Gonese, when he raised the issue of Samkange’s seat, the Speaker is reported as having said that he was awaiting written communication from Zanu PF to enable him to declare the seat vacant.

With all due respect, the Speaker’s position on this is untenable. There is no requirement for a political party, in this case, Zanu PF, to inform the Speaker that a formerly independent MP has now become its member. Written communication is only required in terms of s. 129(1)(k) where an MP has ceased to be a member of a political party. It is not in the party’s or its member’s interest to have the seat declared vacant and there is no incentive to write to the Speaker to advise that the independent MP has become its member.

The reasonable position is that any person can bring the matter to the Speaker’s attention and the Speaker must investigate and satisfy himself whether or not the claim that an independent MP has become a member of a political party is correct.

What the Speaker ought to have done, having received notice from the opposition’s Chief Whip, was to initiate an enquiry into the veracity of the claim that Samkange is now a Zanu PF member. Of course, as a senior member of Zanu PF’s Politburo, the Speaker must be fully aware of the facts surrounding Samkange’s readmission into the party and that the person who used to be recorded as an independent MP in Hansard, is now, in fact, a member of Zanu PF.

In any event, the oath taken by an MP upon assuming office in terms of the Third Schedule of the Constitution is that he or she “will uphold the Constitution and all other laws of Zimbabwe …” An independent MP who has joined a political party must therefore be honest and truthful about the change in his status, and must declare this to the relevant authorities. For this reason, Samkange ought also to inform the Speaker that his status has changed and that he is now a member of a political party. All this is apart from his ethical obligations as a senior legal practitioner who enjoys respect among his peers.

Some will say, but what does it matter, as Samkange and Kereke are likely to retain their seats in a by-election, anyway, seeing as it is, that the major opposition parties are boycotting elections. But that is not the issue. The issue here is about compliance and proper implementation of the Constitution. Chaos begins at the point that we disregard laws and remain silent in the face of deliberate or contrived failure to comply with the law.