Mudenda offside, Mutasa argues

By Tendai Kamhungira

HARARE – Former Presidential Affairs minister Didymus Mutasa has described Speaker of Parliament Jacob Mudenda’s decision to expel him from the House of Assembly as absurd and lacking in common sense.

In an application filed together with Temba Mliswa, who has also been expelled from Parliament following the pair’s disputed expulsion from Zanu PF, the two men are seeking a court order stopping the holding of by-elections in the Headlands and Hurungwe constituencies that they have been representing.

Mutasa and Mliswa have cited Mudenda, President Robert Mugabe and the chairperson of the Zimbabwe Electoral Commission, Rita Makarau as the respondents in the application.

In their heads of argument, the two said Mudenda did not follow the proper constitutional procedures while handling their expulsion.

They accused Mudenda of jumping the gun and not acting in accordance with the law.

Under Section 129 (1) (k), in order for a member of Parliament to lose his seat, the member has to first cease to belong to the political party of which he was a member at the time of his election to Parliament, and a notice must be written confirming such a development.

Mutasa and Mliswa said Mudenda was supposed to leave the matter in the hands of Zanu PF, and for the courts to make a determination as there was a dispute.

“The involvement of the member concerned before declaring his or her seat vacant under Section 129 (1) (k) is not just a matter of law and natural justice. It is also a matter of common sense.

“Given that membership of a political party is contractual, it cannot make sense to allow only one party to the contract to announce its termination. Any departure from this common sense requires express words to that effect,” the duo argued.

They said an interpretation that allowed the speaker or president of the senate to declare a seat vacant without affording the members concerned an opportunity to demonstrate the nonfulfilment of one or both of the two requirements of Section 129 (1) (k) was absurd.

“Both the undermining of the founding values and principles of the nation and the absurdity are easy to illustrate.

“The whole purpose of the constitutional provisions of the legislature would be defeated if members of Parliament are arbitrarily removed from Parliament.

“This is such a glaring absurdity that could never have been intended,” they said.

They said within the scope of Section 129 (1) (k), an unlawful termination of membership at the instance of the political party does not make a member “cease” to be a member.

“In other words, a person is not dead merely because their death certificate had been issued. The first respondent (Mudenda) clearly misdirected himself in law in believing that all what was required was to dance to the tune of the political party concerned,” they said, adding that they had not been subjected to any disciplinary proceedings before their expulsion.”

The two argued that their rights to equal protection of the law were infringed by the expulsion.

They also argued that they had a right to stand for any election for public office and were now seeking the court to declare their expulsion a nullity. They further argued that they had a right to administrative justice and to a fair hearing through the protection of the Constitution.

Chief Justice Godfrey Chidyausiku has set down the matter for hearing on April 1, in time before the sitting of the nomination court on April 8. Government set June 10 as the day for the holding of by-elections for the two seats. Daily News