CITIZENS’ Coalition for Change (CCC) members of Parliament who resign in solidarity with former leader Nelson Chamisa who quit the party last week are free to contest again in by-elections called to fill the ensuing vacancies if they want to retain their seats, checks by The NewsHawks have revealed.
Qualifications and disqualifications for election to Parliament are provided for in section 25 of the constitution.
Sub-section one paragraphs (a) and (b) outlines what makes one qualify for election.
It says one must be a registered voter and “is at least twenty-one years of age: unless he or she is disqualified under sub-section two or three”.
The mentioned sub-sections say: “A person is disqualified for election as a Member of the National Assembly if- (a) he or she is disqualified under the Fourth Schedule for registration as a voter or (b) within five years before the election, he or she vacated a seat in the Senate or the National Assembly in terms of section 129 (l) (I)through having been convicted of an offence.”
The constitution also outlaws floor crossing and says a person who ceases to be a member of a political party that supported them to Parliament cannot resign and contest under the same party name.
The plain interpretation is that the MPs who resign in solidarity with Chamisa can still contest on the ticket of a new movement he promised to form or they can run as independents.
The latter has already happened in Seke where Chamisa’s candidate who was recalled from Parliament, Willard Madzimbamuto, is contesting the 3 February by-elections as an independent against CCC Sengezo Tshabangu’s candidate Evaristo Chisi.
In the 26 March 2022 by-elections, Chamisa MPs recalled by Douglas Mwonzora from the MDC-Alliance were also allowed to contest under a new name, CCC.
Former opposition MDC chief whip and Mutare Central MP Innocent Gonese, who is also a seasoned lawyer, said the same can still happen with MPs who resign in solidarity with Chamisa.
“One’s resignation as a member of Parliament or as a councillor does not preclude or bar that person from standing in an election subsequently called in the constituency or ward concerned.
“According to section 129 of the constitution, it is very clear that one of the ways in which a seat becomes vacant is through the member resigning, that is section 129 (1b).
“However, you will find that when you look at section 125 and similar sections which relate to the Senate, it is clear that there are disqualifications, but one is not disqualified because of a resignation,” he said.
Gonese explained what translates to a disqualification.
“What disqualifies a person is, for example, if a person ceases to be registered as a voter or if a person has vacated a seat through having been convicted of an offence.
“Nowhere does it mention having relinquished his seat through resignation. And one can understand the rationale, because you will find that in terms of [section] 129-1K, it is quite clear that if one ceases to belong to a particular political party, or having been elected as an independent in terms of L, and becomes a member of a political party, in those two reverse circumstances, the seat becomes a vacant.
“So, in my opinion, if someone was elected under a certain political party and they ceased being members of that party and instead of being recalled, they simply resign and they want to stand again on a different platform whether as an independent or as a member of a completely different political party, then those people or that person would be perfectly free to do so,” said Gonese.
He added: “And it actually syncs with our logic that if, for example, the party under which you are elected is no longer in sync with your political views or the party changes direction, then you are perfectly entitled to relinquish that seat and seek a fresh mandate. So, in short, I believe that any person who never resigned is perfectly at liberty to stand again on a different political party platform.”
Clerk of Parliament Kennedy Chokuda said only Zec which administers the Electoral Act can know whether an MP who resigns can contest in a by-election to fill the ensuing vacancy.
“Kindly direct your questions to Zec who are responsible for administering the Act,” he said.
Contacted for comment, Rodney Kiwa, the Zec deputy chairperson and acting spokesperson, strongly refused to shed light.
“I am not prepared to speak about that matter. I recently addressed a Press conference and that matter must have been raised during that platform. In other words, I am saying I can’t talk about that or anything else at the moment,” he said.
So far, only top opposition politician Fadzayi Mahere has resigned as MP for Mt Pleasant in solidarity with Chamisa.
Two other CCC legislators, Eric Murai (Highfield East) and Corban Madzivanyika .