ON 23 and 24 August 2023, Zimbabwe held its general elections. The elections were marred by some of the most intense pre-electoral litigation this country has ever experienced since Independence in 1980.
Literally every aspect of the election was contested. The provision of the voters’ roll by the Zimbabwe Electoral Commission (Zec) was contested more than three times in the High Court, to the very high nomination fees for candidates, to the Statutory Instruments that amended the Electoral Act way after elections date were promulgated by the President.
Elizabeth Valerio and Linda Masarira, the two women who threw their names into the ring to contest for the high office of president, also took Zec to court after being disqualified for apparently late payment of nomination fees.
Douglas Mwonzora and his now dead political outfit – the late MDC-T – contested the delimitation exercise and later the disqualification of more than 70 of his prospective parliamentary candidates.
Mwonzora has made history by being the undertaker of the biggest opposition party Zimbabwe has ever seen yet. The MDC-T won parliamentary elections in 2008, and its leader Morgan Tsvangirai defeated longtime ruler Robert Mugabe in the first round of polling before the opposition leader pulled out of a bloody run-off.
It is widely believed that Tsvangirai has actually won the election outright before it was rigged to engineer a run-off.
As was anticipated, learning from history, the main opposition Citizens’ for Coalition Change (CCC) had double candidates nominated in more than 20 seats in Harare and Bulawayo alone.
The double candidates’ drama had Freddy Masarirevu as its face. The matter did not escape the courts of law either.
As if that were not enough, Zanu PF fronted by Patrick Chinamasa asserted that CCC candidates in Bulawayo had filed their nomination papers late and were supposed to be disqualified.
The courts became yet another stage for the showdown that ensued, with a bizarre judgment coming out of the Bulawayo High Court disqualifying the 12 candidates albeit Zec asserting in bold, red capital letters that the candidates had filed their papers within the time prescribed by the constitution.
It took a three-member bench of the Supreme Court to hear a chamber of lawyers for the 12 Bulawayo candidates to be reinstated on the ballot papers.
On the other hand, our exiled brother and former Zanu PF henchman, Saviour Kasukuwere, was engaged in his own legal battles to keep his name on the ballot paper.
Had it not been for the effluxion of time to hold the general elections, we might have still been engrossed in the drama and waiting for the election to take place.
But the teapot-shaped country is never short of drama. It is a land of endless possibilities. The election result was announced and the country waited with bated breath for the second coming of another edition of “the fulcrum and the pith” but, alas, it would not be so.
The contestations took a regional outlook, with eyes and ears directed to the north as opposition forces waited for Nevers Mumba to walk on water and change Zimbabwe’s disastrous watery elections into some wine. Yet again, the country still waits.
As the country waits, the opposition has been plunged into another Mwonzora-style crisis amid a recalls show. This time the show is being headlined by none other than one Sengezo Tshabangu.
Tshabangu entered the scene like uninvited gastric winds that embarrass both the perpetrator and the victims. He claims to be the interim secretary-general of the CCC. His first trail of destruction were the seats the opposition sweated hard to win.
It took Tshabangu’s simple-worded letter to Speaker of Parliament Jacob Mudenda to recall 20 members of Parliament and councillors. The country was yet again placed in anxiety mode as all ears were directed to Parliament where Mudenda was to make a decision.
The decision came and as if the country did not know how Mudenda would decide, the MPs were removed from Parliament. How did Tshabangu do what he did? Who is behind him? What was Mudenda’s role? Is this a Zanu PF two-thirds majority plot? What is the endgame? What could the CCC have done to avert this embarrassing situation?
The first station one has to attend to is section 129 (1) k of the constitution that provides for the recall of sitting MPs by their sponsoring party.
The wording of the section says “the seat of a member of parliament becomes vacant if the member has ceased to belong to the political party of which he or she was a member when elected to parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that member has ceased to belong to it”.
The Constitutional Court of Zimbabwe has had occasion to interpret the import of section 129 (1)K in the case of Didymus Mutasa vs The Speaker of the National Assembly and Others CCZ 18/19.
In its interpretation of the section, the court as per Malaba (then Deputy Chief Justice), held that “the ordinary meaning of the words used in s129(1)(k) of the constitution is that a Member of Parliament ceases to be a Member of Parliament when he or she ceases to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, has declared that the Member has ceased to belong to it.
The provisions of section 129(1)(k) of the constitution do not clothe the Speaker or the President of the Senate with power to inquire into the legality or otherwise of the fact of cessation of membership of the political party concerned by the Member of Parliament”.
In other words, the Constitutional Court held that the Speaker of the National Assembly or the President of the Senate implements section 129(1) (k) recalls in a mechanical manner.
The Constitutional Court made the Speaker of the National Assembly or the President of the Senate a slot machine whereby they should simply act in accordance with what has been placed in them.
This the court as per Malaba DCJ expressed clearly when it made a finding on the interpretation that “section 129(1)(k) of the constitution envisages that every political party as an organisation has in its administrative structure an individual tasked with the duty of communicating the fact of MP having ceased to be its member in the appropriate form to the Speaker or the President of the Senate to act on the notification from a political party that communicates the prescribed fact in the prescribed form. Nothing in the provisions of s 129(1) (k) of the Constitution empowers the Speaker or the President of the Senate to interfere with the internal affairs of political parties and their members”.
The approach in interpretation the provisions of section 129(1) (k) that was taken by the Constitutional Court is, with respect, problematic.
The Bishop, my late brother Dr Alex Magaisa, characterised the challenges with such an interpretation as has been taken by our court with the following questions: What is the identity of the political party, especially where there are rival claims?
Does the member disputes that he or she has ceased to belong to the political party? How does the Speaker or the President of the Senate determine that the written notice is from the legitimate political party?
What is the form of the written notice? What is the role of the Speaker and the President of the Senate in this whole process, if any?
Is that role substantive or it is merely procedural?
In the Tshabangu soap opera, which appears not to be ending soon, the character of the political party seems very clear, considering that there are letters that were apparently written by the president of the political party to Parliament on 11 September and subsequently on 4 October.
By Tshabangu’s own admission, he recognises Nelson Chamisa as the president of the political. Tshabangu only falls short of outlining the source of his power within the party itself.
The Speaker of Parliament is clearly faced with two letters, the first letter by Nelson Chamisa explains how the CCC will communicate with the National Assembly, and the second letter by Tshabangu goes contrary to the first by recalling members of Parliament outside the provisions of the first communication.
Faced with contradictory communication from the political party, the Speaker should not have become an arbiter in what is clearly a political dispute by choosing a side.
Remember Mudenda is a political player himself whose interests lie in seeing the back of the CCC as a political adversary.
There is clearly a dispute on the correct position of CCC regarding its members of Parliament. The dispute is amplified further by the court application that has been filed by the concerned MPs disputing that they have ceased to be members of CCC.
The constitution provides for a dispute resolution mechanism by providing in section 69(3) that “every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute”.
The Speaker cannot implement section 129(1) (k) in the Tshabangu recalls because there is a clear dispute within the CCC. By implementing provisions of section 129(1) (k), Mudenda is acting ultra vires his duties as Speaker as he has apportioned to himself the powers to adjudicate disputes within a political party and taking the side of Tshabangu over what Chamisa wrote to him.
The MPs and the CCC have a remedy in the High Court where they can seek a review or a declarator.
As l highlighted last week, the constitution itself is not problematic, but how we implement and interpret it. No matter how beautiful the text of the constitution can be, it takes political will to realise the beauty in this document. For now, the show goes on.
Tshabangu has threatened more recalls for late comers and those not attending parliamentary sessions. Chamisa has decided to disengage in order to engage. Zanu PF is recalling its motor vehicles.
Zimbabweans are the victims of this political soap opera that they must watch. As the Catholic bishops would have said, “The march goes on”. It will get worse before it gets better.
Yet this drama of the recall of MPs blatantly subverts the people’s democratic will, undercuts democracy at its foundation and reduces Zimbabwe to a laughing stock in the community of nations where the constitution, constitutionalism and rule of law are trampled upon with impunity.
Constitutionalism and the rule of law are about how the powers of government and of state officials are to be limited. They are fundamental to good governance and building democratic and fair societies.
At the core of constitutionalism is the principle of popular sovereignty: That the authority of a state and government are derived and sustained by the consent of the people through their elected representatives.
When MPs are recalled casually and arbitrarily like that at the behest of an individual without his party’s authority and mandate — with the collaboration of the Speaker of Parliament and the electoral commission in service of an authoritarian political agenda — it shows that constitutionalism and the rule of law have collapsed and democracy is in the intensive care unit.