ZIMBABWEAN courts, which should exercise neutrality and impartiality at all times, have backed Sengezo Tshabangu who claims to be Citizens’ Coalition for Change (CCC) interim secretary-general, giving him an edge in the fight to destroy the opposition while ensuring that the ruling Zanu PF gets a two-thirds majority.
The then little known Tshabangu became infamous in October this year, a month after the country’s general elections which saw President Emmerson Mnangagwa and Zanu PF winning the disputed election, which observers said fell short of democratic standards.
Zanu PF however failed to get a two-thirds majority which Mnangagwa desperately needs to ammend the constitution as he weighs up running for a third term.
The CCC won 104 seats in August. Mnangagwa, Zanu PF, Parliament, the courts and other state actors have however taken advantage of discontent in the CCC over candidate selection and lack of constitutionalism in the party.
Tshabangu’s first strike
Tshabangu wrote a letter dated 3 October to Speaker of Parliament Jacob Mudenda and Local Government minister Winston Chitando recalling 15 MPs and eight senators.
One of the MPs escaped the noose after Tshabangu wrongly spelt her name in his letter to Mudenda. CCC leader Nelson Chamisa then wrote to Parliament telling Mudenda that Tshabangu was not known in their party and had no authority or powers to recall their members.
The message fell on deaf ears and Mudenda acted on Tshabangu’s letter confirming vacancies to the Zimbabwe Eloctoral Commission (Zec) and announcing the recalls in Parliament on 10 October.
Legal proceedings ensue
Left with no option, the affected lawmakers rushed to court where they filed an urgent chamber application challenging their recall.
The MPs argued that they never ceased to be CCC members. They refuted claims that Tshabangu was a CCC member.
On 11 October, protesting the recalls, the CCC announced it had disengaged from the National Assembly, Senate and Local Government.
Chamisa issued a 14-day ultimatum for the recalls to be reversed, threatening to withdraw his party’s legislators from Parliament. Zanu PF ignored the threat.
Tshabangu’s second victory
The High Court challenge was heard by Justice Munamato Mutevedzi who ruled on 4 November that the 14 MPs and 8 senators had failed to prove their case.
The judge concurred with Tshabangu’s argument that the applicants’ case had a weak foundation.
“Just like it is difficult if not impossible for a man to impugn the paternity of his brother without directly involving the parents, it is naïve for a member of a political party to approach a court seeking to prove that another is a non-member of the same party without the involvement of the political party itself,” noted the judge.
“A closer reading of section (1) (k) would show that nowhere in it is the Member of Parliament accorded any active role.
“The power of recall from Parliament created by s129(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,” he said.
Justice Mutevedzi went on: “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.”
Mutevedzi said 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.
He said 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.”
The judge said given all this, what stands out is that Tshabangu’s letters to the presiding officers of Parliament satisfied all the requirements under section 129(1) (k) of the constitution. In addition, he attached annexures “ST2”, a document addressed to the third respondent which showed that he was designated by the CCC as its officer.
“There is nothing to rebut that other than the belated and discredited letters of Nelson Chamisa.
“He went out of his way to prove what he ordinarily was not required to prove.
“The applicants failed to produce their party constitution or any document which showed that the first respondent could possibly not have held the position he claimed he held.
“It was simply their word that he wasn’t. That is not enough.”Contrary to counsel’s allegation that Tshabangu conceded that he was not a member of the CCC party, his opposing affidavit has claims in innumerable paragraphs saying he is a bona fide member and official of that party with authority to write correspondences of recalls like he did.
“The onus to prove entitlement to the declaratory orders sought was on the applicants.
“They did not even begin to discharge it. They have not established their case on a balance of probabilities as required by law and are therefore not entitled to the declaratur which they seek.
“The other relief was consequential upon the grant of the declaratur. It should also fail,” he ruled.
This paved way for by-elections held on Saturday. After losing the case, a Supreme Court appeal was noted against Mutevedzi’s judgement.
The recalled MPs also filed a court application seeking an interdict to block Tshabangu from further recalling CCC members.
However, Tshabangu recalled 18 more members on 14 November.
High Court judge Tawanda Chitapi however granted the party interim relief blocking Tshabangu from further recalling CCC MPs.
However, the court order was not handed down in time to save the second bunch Tshabangu had recalled.
On the other hand, the nomination court sat on 7 November and the recalled 22 successfully filed their papers with Zec, having lost their seats after Mutevedzi backed Tshabangu.
Tshabangu was not happy.
Tshabangu’s third attack
As the recalled legislators filed an appeal at the Supreme Court, Tshabangu filed a High Court application seeking to block the 23 affected members from contesting under the name CCC.
His lawyer, Advocate Lewis Uriri, insisted that it was wrong for the candidates to run under the CCC banner when the court had confirmed that they ceased to be members.
Before the case was heard, the Supreme Court appeal was heard last week, to Tshabangu’s advantage.
Tshabangu scores another victory
The appeal collapsed before it was even argued after it emerged that papers were wrongly filed. This placed Tshabangu in a better place once again.
A bench chaired by Justice Joseph Musakwa on 1 December found that the appeal was incorrectly filed because other critical parties were not cited in the appeals before striking them off the roll.
“It is common cause that the court aquo handed down a unitary judgement. Parties before the court aquo were supposed to be the same before this court, as such the court agrees with Mr Uriri. The court is of the view that the notices of appeal are fatally defective. Consequently, there is no appeal before this court,” said Musakwa.
The MPs and senators had filed separate appeals before the Supreme Court.
This was despite that a unitary judgement was handed down by the High Court.
The MPs did not cite senators in their application and on the other hand the latter did not cite the lawmakers.
Advocate Uriri argued that this was a fatal technical error, an argument which was upheld by the court.
“At a case management meeting, all the parties consented to the consolidation of the applicants because the relief sought was similar. The effect is that the two matters became one, so when judgement is rendered one may not undo the consolidation and appeal as if they are two different matters, which is what the appellants have done.”
Advocate Thabani Mpofu, who was representing the MPs, had argued that: “There is no rule of the court that is offended by the non-joinder of senators.”
Advocate Amanda Ndlovu, representing the senators, said they still have a chance to fight.
“What that means is to say go and correct that and the appellants still have an opportunity to re-file their appeal in a manner which complies with the rules of this court,” she said.
The major blow
On Wednesday the matter in which Tshabangu was seeking to have the 23 removed from the ballot was finally heard by High Court judge Never Katiyo.
The CCC and Tshabangu were cited as the first and second applicants respectively.
In a turn of events, the Nelson Chamisa-led CCC also sought to be joined in the proceedings.
Arguments became tense, with the judge stating that the matter was now confusing, considering that there were two CCCs, which is the same party but cited as an applicant as well as a respondent.
“They were recalled and as a result by-elections were called for. We submit that Zec should not have accepted nomination papers of recalled members without confirmation of their restoration to the party,” said Uriri.
Uriri insisted that the CCC which joined the proceedings was bogus.
“There was one CCC before Munamato Mutevedzi (the judge who dismissed the MPs appeal before the High Court) not two.
“An allegation was that Tshabangu was an impostor. That allegation failed. This court found the recall was not false. This court, having validated that recall, it was not proper for them to file papers under the same party.”
In response, Alec Muchadehama, representing the recalled MPs and senators, said the High Court had no jurisdiction to hear the case.
“It is an electoral matter which ought to have been filed in the Electoral Court.”
He also said Tshabangu’s request had been overtaken by events.
“Ballot papers have already been printed and sent to constituencies in readiness for the election. All systems are now in place for the election to be heard. To take submissions already overtaken by events will be pointless.”
Agency Gumbo, representing tje CCC, complained that the application was being smuggled through the backdoor.
“I submit that this application must fail. This application is full of misrepresentations and fake lies. A litigant who brings false information to the court to seek protection should be frowned upon.
“The first applicant makes a claim that respondents were sponsored by CCC which has Tshabangu as its interim secretary-general, which is false,” he said.
The judge interjected, stating that the lawyers were contradicting themselves.
“By your own submission you seem to be recognising Tshabangu as not bogus but a member who belongs to another party also called CCC. If there was no constitution, why then did you call him an impostor?”
The judge also queried why there was only one political party before his colleague Justice Mutevedzi when the recalled MPs challenged their recall.
He said parties were making it difficult for him because there was nothing much to distinguish the two CCCs.
Uriri in his closing submissions also said the respondents were seeking to confuse the court.
“They even categorically stated that they had reported him to the police, yet now they are making allegations of two political parties,” he said.
Justice Katiyo however ruled in favour of Tshabangu without giving full reasons for his ruling.
Tshabangu’s major score
Katiyo ordered that the 22 be removed from the ballot and left out Munyaradzi Kufahakutizwi who was contesting against Zanu PF’s Pedzai “Scott” Sakupwanya.
Earlier reports claimed that Tshabangu had excluded him on his ballot challenge application because it was never his intention to recall him.
His lawyers also said they only took instructions from their client and did not know why Kufahakutizwi was not included in the court application.
Dramatically, on Friday Katiyo released another judgement, including Kufahakutizwi on the list of those who were to be removed from the ballot.
The CCC had noted an appeal against Katiyo’s ruling at the Supreme Court and it is yet to be heard.
The High Court again sat until midnight on Friday after Tshabangu applied for leave to execute Katiyo’s judgement pending the Supreme Court ruling.The noting of an appeal at law suspends execution of a judgement being appealed against.
Justice Isac Muzenda found for Tshabangu, confirming that the 23 could not stand in Saturday’s by-elections. — STAFF WRITER.