malvernmugadzikwa
Sunday Mail Reporters
THE Nomination Court will sit on Tuesday to receive nomination papers from prospective candidates for the December 9 by-elections, with the High Court yesterday throwing out an application by 23 Citizens Coalition for Change (CCC) members to overturn their recalls from Parliament.
The Government last week approved a US$5 million budget for the Zimbabwe Electoral Commission (ZEC) to conduct the by-elections to fill nine vacant seats in the National Assembly that were prompted by the expulsion of the opposition legislators last month.
CCC’s interim secretary-general Mr Sengezo Tshabangu recently recalled 14 legislators, including six elected through proportional representation, as well as nine senators and 17 councillors.
The legislators then approached the High Court seeking to overturn the recalls. However, Justice Munamato Mutevedzi yesterday dismissed the application after he found that the MPs failed to provide the party’s constitution “or any document which showed that Sengezo Tshabangu could possibly not have held the position he claimed he held”.
The ruling paves the way for the by-elections to proceed, with ZEC now finalising preparations for conducting the polls.
The elections will be held in Beitbridge West, Binga North, Bulawayo South, Cowdray Park, Lobengula-Magwegwe, Lupane East, Mabvuku-Tafara, Mpopoma-Mzilikazi and Nketa.
ZEC deputy chairperson Ambassador Rodney Kiwa told The Sunday Mail that the approved budget also covers funding for the Gutu West by-election scheduled for Saturday.
Voting in the constituency was postponed following the death of a duly nominated candidate, Cde Christopher Rwodzi, before the August 23-24 harmonised elections.
“The budget required for the 2023 by-elections is US$5,3 million, equivalent to $35 billion,” said Amb Kiwa.
“All other required materials like ballot papers, stationery, tents, lights and ink are available.
“The commission was fully capacitated to meet the requirements of the upcoming by-elections by Treasury.
“The commission is prepared to conduct the by-elections comfortably without any challenges.”
Amb Kiwa said all was set for sitting of the Nomination Court.
“We began preparations for the Nomination Court when President Mnangagwa proclaimed dates for the by-elections,” he said.
“We have authorised signatures (of party officials) from the parties that we will use to receive nomination papers from prospective candidates.”
Each of the National Assembly candidates will pay a US$1 000 nomination fee.
Only those who registered to vote before October 25, he said, will be allowed to cast ballots in the by-elections.
“Our voter registration system is continuous and the proclamation of the by-elections was done on October 23 and the voters’ roll for the by-elections closed two days after proclamation,” he added.
Dismissed
In dismissing the recalled legislators’ application, Justice Mutevedzi found that the opposition party’s failure to produce a constitution left it exposed to the “vagaries of inclement political weather”.
“It is admitted that a constitution is not a prerequisite for the formation of a political party,” reads the judgment.
“It is, however, highly advisable if situations like the one before the court are to be avoided.”
A serious political party, said Justice Mutevedzi, is one which envisages running the affairs of the State.
“That on its own means having millions of citizens in its membership and other structures.
“It ideally would have administrative structures through which it is run.
“A political party which does not have constitutive documents to make reference to opens itself up to the vagaries of inclement political weather.
“There possibly could be nothing to stop any member of such an institution from successfully claiming any position in it.”
Justice Mutevedzi also found that it was improper for the former legislators to challenge their recalls without citing their party as a respondent.
“The power of recall from Parliament created by Section 129(1) (k) of the Constitution is reposed in the political party to which the Member of Parliament belonged at the time of the election.
“It is that concerned party which recalls a member.
“By parity of reasoning, the member cannot contest his/her recall against any other person without joining the concerned political party.
“An applicant who alleges that his/her recall from Parliament was unlawful must, as Kwenda J put it in Majaya and Others v Mwonzora and Others (supra): ‘Seek protection from the party which they say they represent in Parliament. Their right is parasitical and cannot stand without relying on the host.’”
Added the judgment: “Put in another way, the parasite and host relationship described above is not removed by the allegation that there is an intruder or an insurgent who has come between the concerned political party and the member and has arrogated himself the political party’s entitlement.
“The political party cannot abdicate the responsibility to approach the courts, broach the subject and seek redress in terms of Section 129(1) (k) to reclaim its right.
“Where the concerned political party does not agree with the recall, it is of necessity, required to contest the lawfulness or otherwise of a recall in court. A recalled Member of Parliament cannot come to court alone, drag in a third party and choose to ignore his/her political party.”
Responding to the ruling in a statement yesterday, the CCC said its “lawyers are still studying” the judgment.
“We will provide a comprehensive statement regarding the same,” it said.
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