Temba Mliswa faces major headaches in the event that he is accepted to lead a faction of the Zimbabwe People First (ZPF) party.
The country’s laws do not accept floor-crossing, which means that the moment Mliswa takes up the opposition party’s leadership, he would cease to be an independent Member of Parliament for Norton — a constituency he gave his all to win last October.
He might not want to let go, which would put him at loggerheads with the constituency that voted him into Parliament as an independent lawmaker.
But assuming the Norton constituency does not raise dust about it, his presence in the legislature might not sit well with his rivals in ZANU-PF and the Speaker of the National Assembly, Jacob Mudenda, who might invoke relevant processes to declare his seat vacant.
In terms of Section 129(1) of the Constitution, an MP’s seat becomes vacant, “if the member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party”.
While the Constitution is clear on this, there is already a precedence where this has not been the case, which could work in Mliswa’s favour.
For example, the re-admission of independent MP for Mudzi South constituency Jonathan Samkange into ZANU-PF after the 2013 polls should have seen him automatically losing his parliamentary seat in line with the new Constitution.
At the time of polls in 2013, Samkange had been dismissed from ZANU-PF and contested as an independent candidate. Although the matter was raised in Parliament by Movement for Democratic Change (MDC-T) chief whip, Innocent Gonese, Mudenda did not act, saying he was waiting for the ruling party to notify him in writing.
That did not happen and Samkange is still an MP to this day.
In Mliswa’s case though, he might not get away with it in view of his fallout with ZANU-PF and that he has become one of President Robert Mugabe’s fiercest critics ever since his dismissal from the ruling party in 2014.
ZANU-PF has previously been accused of only applying the Constitution when it suits its agenda.
“It is not a secret that we are dealing with a party that has no respect of the Constitution. They will duck and dive when it comes to provisions which do not serve their interests. We cannot have a leadership which respects the law only when it is in its favour,” MDC- T spokesperson, Obert Gutu, was once quoted saying.
This week, the Zimbabwe Electoral Commission (ZEC) washed its hands saying the legislature, through its standing rules, should know how to deal with an independent parliamentarian who decides to join a political party.
“That is for Parliament to answer on whether to treat that person as an independent or a member of a party because once we have an election result, we are done – whatever happens after that is now for Parliament to interpret their own rules,” said ZEC chairperson, Rita Makarau.
Mudenda passed the buck when contacted for comment on Tuesday saying; “We need to consult ZEC on that one because they are the ones that register candidates”.
Chairperson of the Legal and Procedural Affairs Committee of the Standing Rules and Orders Committee, Nelson Chamisa said if an independent MP joins a political party they automatically lose their seat according to section 129(1) of the supreme law.
“The Constitution says they lose their seat because they are no longer a member of the House of Assembly under which they won the seat. The door that brought you to Parliament should keep you,” said Chamisa. Financial Gazette