THE CCC has suffered a major blow, losing 14 National Assembly and nine Senate seats, after the High Court dismissed an application by opposition legislators challenging their recalls by Sengezo Tshabangu who claims to be the party’s acting secretary-general, meaning President Emmerson Mnangagwa’s quest for a two-thirds majority via the backdoor is on course.
The judgement also confirmed that by-elections set for 9 December 2023 will go ahead as scheduled.
Nominations is on 7 November 2023. Zanu PF insiders say Mnangagwa desires to change the constitution as he entertains the idea of running for a third term.
High Court Justice Munamato Mutevedzi said the applicants failed to prove that they were more bonafide CCC members than the first respondent (Tshabangu). The CCC’s failure to support the application, or its failure to make the application on behalf of the legislators as well as the failure to produce a constitution proved fatal.
“On the background of all the above issues, what stands out is that the first respondent’s letters to the presiding officers of Parliament satisfied all the requirements under s129(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,” Mutevedzi said.
“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 the first respondent 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,” wrote Mutevedzi.
Tshabangu wrote to Parliament posturing as the secretary-general of the CCC and in his correspondence he recalled 15 legislators across the country.
Justice Mutevedzi said it was the prerogative of the party to challenge Tshabangu’s CCC membership and not that of the members.
“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. The applicants in the two applications before me all share the mortification of failing to appreciate the elementary notion that they are individuals who are distinct from their political party. They cannot conflate the rights acquired through their individual membership in the party with the responsibilities which are reposed in the political party itself. I will later in the judgment, demonstrate the fallacy of believing otherwise,” Mutevedzi wrote.
In their court application, the group insisted that Tshabangu is not a CCC member and, as such, could not recall them.
They described his actions as of fraud, also complaining that it was wrong for the Speaker of Parliament to act on his letter.
They had cited the Speaker of Parliament, the Senate President as well as the Zimbabwe Electoral Commission (Zec) as respondents, but later altered their draft order to only seek an order against Tshabangu.
Tshabangu, who was represented by Advocate Lewis Uriri, argued that the CCC was happy with the recall, the reason why it was not party to the proceedings. Mutevedzi, sitting at the Harare High Court, upheld Tshabangu’s arguments that the aggrieved brought nothing before him to confirm that they were never recalled.
“A closer reading of s129(1) (k) would show that nowhere in it is the Member of Parliament accorded any active role,” the judge said. “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.” The judge further ruled: “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 s129(1) (k) to reclaim its right.
“Where the concerned political party does not agree with the recall, it is as 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,” he said.
Mutevedzi said in light of the foregoing issues, what stands out is that Tshabangu’s letters to the presiding officers of Parliament satisfied all the requirements under s129(1) (k) of the Constitution.
Attack on Zanu PF
The judge also chastised CCC legislators’ lawyers for insultimg the ruling party, saying it worked negatively on their part as they lost track of reason why they were before the court.
“It is inappropriate for a litigant to denigrate a person or institution which he/she has deliberately neglected to cite in court papers with the full knowledge that whatever aspersions he/she casts on that person/institution, he/she/it will not have the opportunity to answer back.
“The applicants’ attack on the political party called Zanu PF appears completely off side. In reality it smacks of cowardice and uncalled for grandstanding.” The judge said allegations can only be made against a party who is before the court.
“In legal parlance, an allegation refers to a claim of fact not yet proven to be true,” he said. “It is not synonymous with an insult. The principles of natural justice require a party against whom a decision adverse to his/her/ its interests to be heard before such decision is made.
“I cannot in this instance, make a finding that Zanu PF connived with the presiding officers without hearing its side of the story. Commendably at the hearing Ms. Ndhlovu who appeared with Mr Muchadehama for the applicants unreservedly apologised to both the court and the respondents for the use of that over the top language.”
Justice Mutevedzi said putting ethical issues aside, the MPs further contended that in a move aimed at pre-empting the effects of the letters written to the presiding officers, the CCC on 4 October 2023 addressed a letter written by its leader Nelson Chamisa to the presiding officers advising that the first respondent’s letter of recall was a fraudulent document and did not represent the position of the CCC party and that all the applicants had not been expelled from the party.
The court heard that on 6 October 2023 the presiding officers wrote to the third respondent, the Zimbabwe Electoral Commission, notifying it of the existence of the vacancies which had arisen in both houses of Parliament.
The subsequent expulsion from Parliament was announced on 10 October 2023.