I’m not flouting Standing Orders: Zvoma

its own share of controversy, courtesy of a successful legal recourse by Tsholotsho North legislator Professor Jonathan Moyo and three MDC MPs – Mr Moses Mzila Ndlovu, Mr Patrick Dube and Mr Siyabonga Ncube, which subsequently dethroned the Speaker, Mr Lovemore Moyo. Our senior reporter, Zvamaida Murwira (ZM) talks to Clerk of Parliament Mr Austin Zvoma (AZ) about this and other issues.
ZM: There has been confusion on what the law says regarding who should convene the House of Assembly for purposes of electing the Speaker following the nullification of Mr Lovemore Moyo’s election by the Supreme Court. Is it the President who should call the House again to sit, or what really happens?
AZ: The Clerk of Parliament is the officer who has the responsibility and mandate to convene the House of Assembly for the purpose of electing the Speaker following the Supreme Court ruling, which set aside the flawed election of Lovemore Moyo on August 25 2008.
That is in terms of the law. In 2008, after general elections, His Excellency the President and Commander-in-Chief of the Zimbabwe Defence Forces in terms of Standing Orders and the Constitution, which Standing Orders are made in terms of section 57 of the Constitution, fixed the time and date for members to assemble and make and subscribe to the Oath and Affirmation of Loyalty in terms of Section 44 of the Constitution.
Pursuant to that gazetting, which gives authorisation to the Clerk to proceed with the swearing in of Members and any subsequent requirements prior to the election of Speaker.
ZM: Can you explain the procedure?
AZ: Okay! Step one, the President fixes the date and time of swearing in of members, and in fixing the date and time, the Gazette only mentions the swearing of Members and not election of Speaker.
The election of Speaker is prescribed in the Constitution, section 39 (1) for the House of Assembly, which reads as follows: “Where the House of Assembly first meet after any dissolution of Parliament and before it proceed to the dispatch of any other business it shall elect a Presiding Officer to be known as the Speaker.”
Now, the election of the Speaker only takes place after the swearing in of Members. In other words no Member can participate in any other business before swearing in.
So, Standing Order No 2 is the one that clarifies that the President sets the time and date of the swearing in of Members of Parliament. So that is what happened on August 25.
The Clerk made public indications in the media – print and electronic – convening the House to meet for purposes of swearing in.
For the convenience of Members, the Clerk also notified Members that on that same day, after swearing in, there shall be election of the Speaker, that is to say the election of a Speaker is after the swearing in, which the Clerk takes charge of.
After the swearing in, the Clerk conducted the election of Speaker believing the process was complete and the Speaker then took over presiding of subsequent sittings.
But soon after the election of Speaker, Prof Jonathan Moyo and three other Members challenged the election of Lovemore Moyo as Speaker in the High Court, submitting that the election be set aside due to its flawed nature.
That matter was defended with the Clerk as the first respondent; Lovemore Moyo being the second respondent, which at the end of it, the court ruled that the Speaker had been properly elected.
Subsequent to that, Prof Moyo, aggrieved by the decision, appealed against the decision of the High Court in the Supreme Court, which heard the matter and reviewed the trial record and concluded with a majority judgment overturning the verdict of the High court.
As the decision of the Supreme Court is final, the Clerk enjoined and all other parties are obliged to respect the ruling of the Supreme Court in keeping with the doctrine of separation of powers among the three organs of the State namely the Executive, the Legislature and the Judiciary.
In complying with the verdict, it meant that Lovemore Moyo had to vacate the office of the Speaker and everything associated with that office.
In other words, as his election had been set aside, and at law he was never Speaker because to be elected it means satisfying all the legal requirements.
That is an event taking place about 29 months after the election which also meant that a lot of water had gone under the bridge for three seasons.
ZM: Can you comment on allegations that you have also unilaterally adjourned the House?
AZ: In practical terms, it (the Supreme Court ruling) therefore meant we retrace our steps up to the time that things went wrong, which is the election of the Speaker.
By that very act, the date to which the House of Assembly had been adjourned, which is Tuesday March 22 becomes irrelevant as it has been superseded by the decision of the Supreme Court.
The swearing in having been done in accordance with the law, we are not seeking the President to gazette another day because we are not swearing in new Members.
The Clerk has written to His Excellency the President for purposes of consultation as the President is part of the legislature, advising him what has happened and why it is happening like that; and, also to be reassured that things are being done properly.
So, I have consulted the President as I am duly mandated to do so. In due course, I will announce the date for the election of Speaker.
ZM: MDC-T secretary-general Mr Tendai Biti has accused you of flouting Parliament’s Standing Orders and the Constitution by exercising powers that you do not have when you did not allow the House to sit to the date at which it was adjourned to. What do you say?
AZ: Before addressing that stupid allegation, I am disappointed that a person like Minister Biti, a lawyer chooses to react emotionally and not rationally by seeking to denigrate the person of the Clerk on a flawed basis and interpretation of the implication of the Supreme Court judgment (and) by misleading the public that the Clerk is flouting the law by varying the dates to which the House was adjourned.
And, by misleading himself and misinforming the public that the Clerk of Parliament does not have those powers at law!
And further, to totally misunderstand the fact that the vacancy in the Office of the Speaker is not a vacancy envisaged in Standing Order No 16, which relates to either the death, resignation or other inability of the de jure Speaker during his term.
That Standing Order, for purposes of correctly informing the public, says “whenever the office of Speaker otherwise by reason of dissolution.”
The lawyer, Mr Biti needs to be educated that His Excellency the President R G Mugabe has not dissolved Parliament since it began in 2008 after the elections as he seems to understand through the figment of his imagination.
The President could not have dissolved the House of Assembly only, as there is no such provision. The fact that the Senate is sitting shows that the provision does not relate to that but it is a retracing of where things went wrong so that we do it correctly.
ZM: You have also been accused by Minister Biti of being a willing appendage of Zanu-PF by adjourning the House?
AZ: It is disappointing that a lawyer of his standing reacts emotionally and not rationally and he proceeds to utter defamatory remarks that Zvoma has become a willing appendage of Zanu-PF and that he proceeds to threaten to discipline the Clerk.
Let Mr Biti be informed that the law protects everyone including the Clerk. But for the defamatory remarks, I shall act accordingly in due course.
As for the threat to discipline the Clerk, I welcome that process but for the time being I wish to state that Mr Biti is not the Standing Rules and Orders Committee itself, but only a member, not even its spokesperson.
He is the Minister of Finance and he is better advised to concentrate on his ministerial duties.
ZM: Are you an appendage of Zanu-PF as alleged by Minister Biti or are you not playing in the hands of Zanu-PF?
AZ: It’s defamatory! For the time being, I am not going to say much more serve to say that when the Clerk performs his duties he is guided only by the Constitution and the Standing Orders.
If the decision of the Clerk does not please anyone such as Minister Biti, it is unfortunate that he then seeks to attack the person of the Clerk.
Conversely, as the first respondent, when I defended the propriety of the court action, I assumed that Mr Biti would say that I am an appendage of the MDC-T and that would please him. I was an angel and now suddenly I have grown horns. Let the public judge his conduct accordingly.
ZM: Now that there is no pending court case between you and Mr Lovemore Moyo, what do you say about his membership as a legislator? What is his status? On what basis would the Clerk fail to take heed the advice of the Attorney General?
AZ: The Clerk has made a deliberate decision based on his understanding and proper understanding of the ruling of the Supreme Court; until someone can prove in court that the Clerk’s decision on this matter is flawed.
ZM: So is Mr Moyo the MP for Matobo North?
AZ: I notice Mr Biti has chosen to declare Mr Moyo as the distinguished MP for Matobo North, which constituency Lovemore Moyo did not hold.
What is interesting is that if Biti had the powers to declare Moyo as MP for Matobo North, why was Moyo asking the Clerk of Parliament to declare him as MP for Matobo North?
That matter which Moyo had sought to achieve through an urgent chamber application had been withdrawn since it’s no longer sub judice.
I am now at liberty to advice that there is nowhere in the Constitution where a seat of an MP who voluntarily seeks higher office of Speaker would want his seat to be reserved for a period of 30 months or even longer in the event that the electoral process which brought Moyo to the office of Speaker would subsequently be set aside.
That would suggest that Moyo was holding both the position of Speaker and MP since August 2008, suffice to say that the matter may resurface.
I have indicated that a lot of water has flown under the bridge in the last 30 months and neither a physician, engineer nor natural law have shown that a river can flow upstream.
ZM: What is going to happen to Lovemore Moyo when the House resumes sitting to elect the Speaker? Are you going to allow him in?
AZ: When the House of Assembly meets in the Chamber, those Members who follow the law will answer to the call of the Clerk who is duly mandated to convene the House on that day for purposes of electing the Speaker will proceed to elect the Speaker.
If Mr Biti chooses not to come he will be exercising his freedom not to recognise the Clerk of Parliament.
But as for Lovemore Moyo he will not be among the Members who will participate in those proceedings as voters but he is eligible to stand as Speaker, but during the election he will be barred from entering the Chamber as he is a former Member of Parliament. The Clerk will put in place adequate measures for this.
ZM: But he was in the Chamber on Tuesday March 22 when MPs were anticipating the election?
AZ: There was no sitting of the house because I had said sitting in Chamber for that day had been superseded by the ruling of the Supreme Court.
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