Speaker dethroned

Moyo (MDC-T) as Speaker of Parliament, saying the process was fraught with irregularities and in breach of the Constitution of Zimbabwe.
Mr Moyo was elected Speaker in August 2008 after garnering 110 vo-tes against former MP Mr Paul The-mba Nyathi who got 98 votes.
The majority decision was that the Clerk of Parliament Mr Austin Zvo-ma did not properly conduct the election as required by the Constitution of Zimbabwe.
The ruling was made in an appeal in which Tsholotsho North Member of the House of Assembly Professor Jonathan Moyo (Zanu-PF), together with Mr Moses Mzila Ndlovu, Mr Patrick Dube and Mr Siyabonga Ncube all MDC MPs, were challenging the High Court decision that validated Mr Moyo’s election.
An appeal can be heard by three or more judges of the Supreme Court and this particular one was heard by five judges.
Mr Terence Hussein of Hussein and Ranchhod law firm, appeared for the quartet while Ms Choice Da-miso represented Mr Zvoma.
South African Advocate Matthew Chaskalson acted for Mr Moyo.
Prof Moyo had argued that during the election, MDC-T parliamenta-rians were rowdy and some of them brazenly exposed their completed ballot papers before they deposited them in the ballot box.
He had also accused Mr Zvoma of failing to stamp his authority on the election process.
The effect of the judgment is that there is now a vacancy for the post of the Speaker of Parliament.
Mr Moyo, who gave up his seat as MP for the Speaker’s position, can now no longer sit in Parliament.
He now has to cross his fingers that MDC-T will nominate him for the post of Speaker and more so that the party would be able to garner sufficient votes to retain the position.
This is far from certain as the numbers and dynamics in the House have completely changed since the flawed election.
In the nullified election, six MPs Deputy Prime Minister Thokozani Khupe, Tendai Biti, Piniel Denga, Tall Chambati, Amos Chibaya and Lovemore Moyo displayed their ba-llot papers before depositing them in the ballot box.
Writing for the majority, Chief Ju-stice Godfrey Chidyausiku ruled that the vote was not cast in secrecy as required by the Constitution.
“Parliament is one of the most revered institutions in any society. It consists of the highest concentration of the political leadership of the country. Parliament makes the laws that we all obey.
“Parliament should, therefore, lead by example and should scrupulously obey its own laws,” said Chief Justice Chidyausiku.
He added that the election of the Speaker should be an example of how an election should be conducted.
This, he said, was important in Zimbabwe, which had been plagued by contestation of election results.
“Parliament should use the election to set the best example to the rest of the country. It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance,” said the Chief Justice.

He said the six named MPs did not vote by secret ballot and therefore, their votes were irregular.
The inclusion of such votes in the determination of the final outcome of the election, he said, constituted a failure to comply with Section 39 of the Constitution, as read with Standing Order 6.
The Order provides for the election of Speaker of Parliament by secret ballot.
“The appeal is allowed with costs, to be paid by respondents jointly and severally, the one paying the other to be absolved.
“The order of the court a quo is set aside and the following substituted. The application succeeds and the election of second respondent as Speaker is hereby set aside,” ruled the Chief Justice.
Justices Vernanda Ziyambi and Paddington Garwe agreed with the judgment while Deputy Chief Justice Luke Malaba and Justice Wilson Sandura disagreed.
However, the Chief Justice’s ruling is binding since it had the majority favour.
Deputy Chief Justice Malaba felt that a voter was perfectly entitled to reveal his vote during an election.
In his dissenting judgment, Deputy Chief Justice Malaba said there was no legal obligation that a voter must vote secretly adding that he or she may opt not to vote by secret ballot.
“As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.
“A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned,” said Justice Malaba.
Justice Sandura noted that the Standing Order was complied with in the election of the Speaker.
He said of the 208 MPs who voted, only six (2,9 percent of the total) displayed their marked ballot papers before depositing them in the ballot boxes.
Two hundred and two (about 97,1 percent) voted in accordance with the provisions of the Sanding Order, Justice Sandura noted.
“Quite clearly, the degree of non-compliance was insignificant, whereas the degree of compliance was nearly one hundred percent.
“In the circumstances, as the object to be achieved by the Standing Order was achieved and not defeated or frustrated by the non-compliance complained of, the degree of the alleged non-compliance was insignificant. It follows that the Standing Order was complied with in the election of the Speaker,” said Justice Sandura
Mr Hussein welcomed the landmark ruling saying he was satisfied that justice prevailed at last after losing the first round of the legal battle.
“Clearly we welcomed the judgment, which was clear that misbehaviour at whatever level will be met with consequences,” he said.
Mr Hussein, however, said none of the actions thus far done by Mr Moyo as Speaker would be set aside after they took a position that the country should not suffer as a result of the unlawful actions of the Speaker.
Commenting on the ruling, MDC-T leader Mr Morgan Tsvangirai said: “The fact of the matter is that the election of the Speaker was lawful and legitimate, a fact confirmed by the election officer and Clerk of Parliament Austin Zvoma in his affidavit filed in court. What is common cause is that Parliament is a separate body, with its own rules and regulations and the courts should not interfere with other arms of the State namely, the Legislature.”