HLALO v MOVEMENT FOR DEMOCRATIC CHANGE-TSVANGIRAI & ORS

HIGH COURT, BULAWAYO

[Urgent Chamber Application HB 98-16]

March 18 and 31, 2016

MOYO J

Practice and procedure  –  Electoral matters  –  Non-joinder of the Zimbabwe Electoral Commission  –  Such non-joinder fatal.

Practice and procedure  –  Matters relating to a vacancy in Parliament  –  Non-joinder of Parliament  –  Such non-joinder not fatal if a presiding officer has been cited.

Constitutional law  –  Constitution of Zimbabwe, 2013  –  Vacancies in Parliament  –  Whether court may order temporary stay of processes to fill such vacancies  –  Not competent for court to stay processes dictated by the Constitution.

The applicant, who had been a Senator, was expelled from his political party, the MDC-T. While he was still challenging his expulsion within the internal processes in his party, the party invoked the provisions of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 and caused his seat to be declared vacant. He applied to this Court seeking an order interdicting the respondents from filling the vacancy arising after his expulsion. He did not join the Zimbabwe Electoral Commission (“ZEC”). He also did not join Parliament itself but cited the President of the Senate and the Clerk of Parliament.

Held, that as ZEC was integral to the filling of vacancies in Parliament, its non-joinder was fatal.

Held, further, that the non-joinder of Parliament was not fatal as the citation of the President of the Senate and the Clerk of Parliament meant that Parliament was, in a practical sense, represented.

Held, further, that once a vacancy has arisen, certain constitutional and electoral processes necessarily ensue and the courts have no power to stay them.

Case cited:

Bhebhe & Ors v Chairman National Disciplinary Committee & Ors HB 85-09 (unreported), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 129 (1)(k), 159

Electoral Act [Chapter 2:13], s 39 (3)

G Nyoni, for the applicants

K Ngwenya, for the first and second respondents

SJ Chihambakwe, for the third and fourth respondents

MOYO J:

The applicant in this matter was a Member of the Senate in the Zimbabwean Parliament having been so elected by the MDC-T political party.

Following differences with the political party, he was subsequently expelled from same and such expulsion was communicated to Parliament, specifically the President of the Senate. The President of the Senate accordingly, upon receipt of the communication that applicant had ceased to be a member of MDC-T, invoked provisions of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”), particularly s 129 (1)(k) which provides as follows:

“129 Tenure of seat of Member of Parliament

(1) The seat of a Member of Parliament becomes vacant – 

(a)-(j)…

(k) 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 the Member has ceased to belong to it; ...”

Third and fourth respondents raised a point in limine that the failure to join the Parliament of Zimbabwe as well as the Zimbabwe Electoral Commission (“ZEC”) should be held to be fatal to applicant’s case. Whilst, it could be argued that the Parliament of Zimbabwe should have been cited, I find that its non-joinder is not fatal since the Clerk of Parliament and the President of Senate were cited and thus Parliament is in a practical sense represented in these proceedings. It is the non-joinder of ZEC that I find to be fatal. Section 159 of the Constitution provides that:

“159 Filling of electoral vacancies

Whenever a vacancy occurs in any elective public office, established in terms of this Constitution, other than an office to which section 158 applies, the authority charged with organising elections to that body must cause an election to be held within ninety days to fill the vacancy.”

Section 39 (3) of the Electoral Act [Chapter 2:13] also provides for the notification of ZEC of the vacancy.

It follows that ZEC is an integral part of the issues as raised by the applicant and clearly it should have been cited. Its non-citation is fatal to applicant’s case, in my view. I would accordingly uphold this point in limine and the application should on this basis alone fail.

However, for the benefit of all the parties concerned and to show that the applicant’s case would still be found wanting on the merits, I have gone further to deal with same. Applicant contends that proper procedures were not followed in his expulsion in that his case was not properly dealt with and that an appeal is actually pending before the internal structures of the MDC-T in terms of their constitution.

It is my considered view that what is happening within the MDC-T is not the business of the President of the Senate who should at all times act in accordance with the Constitution. It is by operation of law that applicant’s seat is now vacant. The President of Senate is not enjoined to assess any issues, or make a decision as to the propriety or otherwise of the expulsion, all the President of the Senate has to do is to act in accordance with the provisions of the Constitution once communication has been received from the party on the cessation of the membership of a party representative in Parliament.

The Constitution does not provide for measures that should be taken once it is found that the member is at qualms with the decision to expel him from the party and consequently from Parliament.

Applicant seeks temporary relief to the effect that:

“(2) Third and fourth respondents be and are hereby interdicted, pending the finalisation of this matter, from accepting any person seconded to them by first and second respondents to fill in the vacancy left after the expulsion of applicant from the Senate.”

I hold the view that this relief is impracticable in that, the seat that was held by applicant in the Senate has already been declared vacant, there are constitutional and electoral provisions that necessarily ensue after such has occurred.

Section 159 of the Constitution, by implication, would apply to a proportional representation seat. It is my considered view that it should also be filled within 90 days in terms of the Constitution. Now if applicant wants this Honourable Court to stop the selection of a candidate pending this Court action, it means the court order would fly in the face of s 159 of the Constitution.

Again, s 39 (3) of the Electoral Act provides for notification of the ZEC of a vacancy in Parliament as soon as the Senator becomes aware of it.

It is my considered view that the operation of law started by the provisions of s 129 (1)(k) of the Constitution cannot be interfered with by this Court as it is impracticable to do so because it would result in an undesirable situation that is not supported by the provisions of the Constitution. The undesirable situation would be that of a vacant seat in Parliament which is left as such until a determination has been made on the internal squabbles of the MDC-T. Refer to the case of Bhebhe & Ors v Chairman National Disciplinary Committee & Ors HB 85-09 (unreported).

It is my finding that applicant should have acted whilst the matter was still an internal one. He should have either sought an interdict against his party from acting in the manner that it did or communicated the detrimental information to Parliament. Otherwise at this juncture what the applicant seeks to do is too little too late. The horse has bolted in my view and the remedy that applicant seeks cannot be granted. It is for these reasons that the application should fail.

I accordingly dismiss the application with costs.

Moyo and Nyoni, applicant’s legal practitioners

TJ Mabhikwa & Partners, first and second respondents’ legal practitioners

Chihambakwe Mutizwa and Partners, third and fourth respondents’ legal practitioners