Full text of Mutasa-Mliswa Constitutional Court Application

IN THE CONSTITUTIONAL COURT OF ZIMBABWE

HELD AT HARARE

IN THE MATTER BETWEEN

DIDYMUS NOEL EDWIN MUTASA                     1^st APPLICANT

AND

TEMBA MLISWA                                                      2^nd APPLICANT

AND

THE SPEAKER OF THE NATIONAL ASSEMBLY       1^st RESPONDENT

AND

THE PRESIDENT OF ZIMBABWE                         2^nd RESPONDENT

AND

CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION    3^rd RESPONDENT

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COURT APPLICATION

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TAKE NOTICE that the First and Second Applicant intend to apply to the Constitutional Court of Zimbabwe at Harare for an Order in terms of the Draft Order annexed to this notice and that the accompanying affidavits and documents will be used in support of the application.

If you intend to oppose this application you will have to file a Notice of Opposition in Form No. 29A, together with one or more opposing affidavit, with the Registrar of the Constitutional Court of Zimbabwe at Harare within 10 days after the date on which this notice was served upon you. You will have to serve a copy of the Notice of Opposition and affidavit/s on the Applicants at the address specified below. Your affidavits may have documents annexed verifying the facts set out in the affidavit.

If you do not file an opposing affidavit within the period specified above, the application will be set down for hearing in the Constitutional Court of Zimbabwe at Harare without any further notice to you and will be dealt with as an unopposed application.

AFFIDAVIT OF DIDYMUS NOEL EDWIN MUTASA

I, Didymus Noel Edwin Mutasa, do hereby make oath and swear that the facts deposed to herein are to the best of my knowledge and belief true and correct. To the extent to which I make statements on matters of law, it is on the basis of the legal advice I have received and accepted. I state as follows:

1. I am the 1^st Applicant in this matter and my address for service is c/o of my legal practitioners Nyakutombwa|Mugabe Legal Counsel, 12 GlenaraAvenue, South, Eastlea.
2. The 2^nd Applicant is Temba Mliswa who was elected Member of the National Assembly for the Hurungwe West constituency on July 31, 2013. His address for service is c/o of his legal practitioners Nyakutombwa|Mugabe Legal Counsel, 12 Glenara Avenue, South, Eastlea.
3. The 1^st Respondent is the Speaker of the National Assembly, a public official elected  in terms of section 126(1) of the Constitution of Zimbabwe, 2013[hereinafter “the Constitution]  as the presiding officer of the National Assembly. He is cited herein as the Speaker referred to in section 129(1) (k) of the Constitution. His address is Parliament Building, Harare.
4. The 2^nd Respondent is the President of the Republic of Zimbabwe, cited herein in his official capacity as the public official who proclaims date/s in terms of section 39 of the Electoral Act [Chapter 2:13] for the holding of  by-elections whenever there is a vacancy in the membership of Parliament. His address is Munhumutapa Building, Samora Machel Avenue, Harare
5. The 3^rd Respondent is the Chairperson of the Zimbabwe Electoral Commission, cited herein in her official capacity to represent the Zimbabwe Electoral Commission, an independent state institution established in terms of section 238 of the Constitution to prepare for, conduct and supervise elections including by-elections.
6. I am making this application in terms of section 85(1) of the Constitution seeking an order in terms of the Draft Order annexed hereto. My fundamental rights have been infringed by the conduct of the 1^st Respondent as detailed below and this application is all about seeking appropriate relief from this Honourable Court as contemplated in the said section 85(1).
7. The material facts forming the basis of this application are not in dispute. I state them briefly in paragraphs 8- 23 below.

BACKGROUND

8. It is common cause that I am one of the few surviving members of the pioneers of this country`s national liberation struggle, having started my political career in 1957 at the inaugural congress of the Southern Rhodesia African National Congress(SRANC). From that beginning in 1957, I became part of the leadership of the nationalist movement and the liberation struggle that brought our independence in 1980.
9. More fundamentally, I have been a member of the ZANU(PF) party from its formation in 1963 to date. It is a political party that has been part of me for over 50 years.
10. I have served in the following positions:
    1. 1980-1990:  Speaker of Parliament
    2. 1990-1995:  Senior Minister of Political Affairs
    3.  1995-2014: Various portfolios as a Cabinet Minister including National Affairs; National Security; Lands and Presidential Affairs.
11. I was relieved of my duties as a Cabinet Minister in December 2014.
12. In ZANU (PF), I have held very senior positions, including being the Secretary for Administration in the executive committee of its Central Committee, the Politburo.
13. On 31 July 2013, I was elected as a Member of the National Assembly for the Headlands Constituency in Manicaland Province. My candidature for election as a member of the National Assembly was on the ticket of my political party, ZANU (PF). In terms of section 46(1) (c) of the Electoral Act [Chapter 2:13], I was a candidate who stood for, or was sponsored by, my party.
14. From the beginning of 2014, ZANU (PF) has been experiencing internal squabbles emanating from power struggles. These are not unusual in a liberation movement. What is material for this application is that the internal squabbles culminated in a disputed meeting held by some members in December 2014. The members who attended the meeting call it a “Congress”. Several members and senior leaders of ZANU (PF) including myself do not regard that December meeting as a Congress. We regard it as mere tactical maneuvering by a faction within the party to tilt the power struggle in its favour. Three days ago (3 March 2015) a senior colleague and I instituted proceedings in the High Court of Zimbabwe to have the meeting declared illegal. The High Court application is HC 1914/2015 and it is still pending before that Court.
15. The December 2014 meeting intensified the power struggle by purporting to amend some aspects of the Constitution of the party and electing new members of the Central Committee. These two aspects are among what we are challenging in HC 1914/2015.   Many internal events in the party after the December 2014 meeting have been very unfortunate. This has included unlawful suspensions and illegal expulsions of members.
16. Concerned that my party was fast drifting into a state of lawlessness and driven by the nationalist spirit of 1957 and 1963, I wrote a letter to the President and First Secretary of the Party, President Robert Gabriel Mugabe, who is also the 2^nd Respondent. This was on 26 January 2015. I attach as Annexure 1 a copy of the letter. I received no response.
17. This takes me to a purported meeting of the ZANU (PF) Politburo of 18^th February 2015 which is said to have taken a decision to expel me and the 2^nd Applicant. I learnt of the meeting and its purported decision to expel me and the 2^nd Applicant from the public media.
18. From my long years of political experience and knowledge of internal power dynamics, I knew that the so-called expulsion from the party was aimed at my seat in the National Assembly.  On 27 February 2015, I wrote a letter to the 1^st Respondent to inform him of my attitude to the purported expulsion. I attach herewith as Annexure 2 a copy of the letter. The letter made it clear that the purported expulsion was not only a nullity but also that it could never be basis for invoking the provisions of section 129(1)(k) of the Constitution of Zimbabwe, 2013. I also attached a copy of Annexure 1 to put the 1^stRespondent in a position to know that there were serious internal disputes regarding the legality of certain meetings and decisions in ZANU (PF).
19. I received no immediate response from the 1^st Respondent.
20. Suddenly in the late afternoon of 3 March 2015, I learnt from the 2^nd Applicant that the 1^st Respondent had, during a sitting of the National Assembly on that day, announced that my seat had become vacant in terms of section 129(1)(k) of the Constitution.
21. The next day, that is 4 March 2015, I received a letter from the 1^st Respondent purportedly dated 3 March 2015. The letter said it was a response to my letter of 27 February 2015. I attach the letter as Annexure 3.
22. I must state that the 1^st Respondent, in his personal capacity, is a member of ZANU (PF). He is very active at a political level in the internal power struggles I have already referred to. He attended the December 2014 meeting which I am challenging in HC 1914/2015. He was one of the presiding officers of that meeting.  He participated in the purported meeting of the ZANU (PF) Politburo on 18 February 2015 which is said to have expelled me.
23. While the issue of the legality of the December meeting and its outcomes is the subject of HC 1914/2015, an illegality that is easy to demonstrate for purposes of this application relates to the so-called expulsions. In ZANU (PF), an expulsion requires due process. That due process involves a disciplinary hearing at which a member is given an opportunity to be heard. The Politburo is not a disciplinary body and has no powers whatsoever to expel any member. My purported expulsion is obviously devoid of substance to be acted upon. It cannot be a basis for anything because it is a nullity. I attach a copy of the ZANU (PF) Constitution as Annexure 4. This is for reference by the Honourable Court if required.
24. Having laid out the factual background, I now turn to show the extent to which my fundamental rights have been infringed by the conduct of the 1^st Respondent. The following is the list of my fundamental rights that have been infringed:
    1. The right to equal protection and benefit of the law protected by section 56(1) of the Constitution;
    2. The right to stand for election for public office and, if elected, to hold such office protected by section 67(3) (b) of the Constitution;
    3. The right to administrative justice protected by section 68 of the Constitution;
    4. The right to a fair hearing protected by section 69 of the Constitution;

RIGHT TO EQUAL PROTECTION AND BENEFIT OF THE LAW

25. Regarding infringement of my right to equal protection and benefit of the law, protected by section 56(1), it is clear to me that the conduct of the 1^st Respondent in declaring my seat vacant is contrary to law. Section 129(1) (k) does not apply to my situation. It only applies where a member has lawfully “ceased to belong to the political party of which he or she was a member when elected to Parliament”. I have not ceased to be a member of ZANU (PF). I can only cease to be a member of ZANU (PF) in accordance with the provisions of the ZANU (PF) Constitution. If there is a dispute between a Member of Parliament and his or her political party regarding whether or not the member “has ceased” to be a member, section 129(1) (k) does not arise and the Speaker cannot act on a notification from the political party.
26.  Contrary to the assertion of the 1^st Respondent in his letter in Annexure 3 that “in the absence of a court order setting aside the Party`s decision to expel its Member I am constitutionally bound to accept the notification and declare the seat(s) vacant”, the opposite is the law. If there is a dispute between a member and his or her political party, the onus is on the political party seeking to invoke section 129(1) (k) to obtain a final court order confirming that the member has “ceased” to belong to it. The notification by a political party is invalid if a member has not “ceased” to be its member. If there is a dispute regarding “ceased” the Speaker must not act until the courts have resolved it. It is ridiculous and clearly contrary to law for the Speaker to choose to tow the line of the political party, leaving it to the member to approach the courts. The law is the other way round: keep the status quo until the political party has attained an unanswerable position regarding its claim that the member has ceased to belong to it. There is no such thing as a seat becoming vacant by operation of law merely from the act of a political party writing a letter to the 1^st Respondent.
27. The 1^st Respondent was at all times aware that I was disputing the position being put forward by whatever notice he received from some members of my political party. My letter to him in Annexure 2 clearly put in issue the question of whether or not I had “ceased” to belong to ZANU (PF). Given that knowledge and mindful of his constitutional responsibilities as a public officer, the 1^st Respondent ought to have realized that the matter required judicial resolution. The Constitution vests judicial authority in the courts. This is in section 162. In conducting himself in the manner he did, the 1^st Respondent arrogated to himself “judicial authority”, thereby denying me the benefits of section 162 of the Constitution.
28.  I am further advised that there is another plausible reading of section 129(1) (k) that makes the provision only applicable to prevent floor closing. My legal practitioners will pursue this point in their legal arguments.
29. Section 129(1)(k) is not a weapon in the hands of a political party to expel its Members of Parliament wily nilly. It is an innocent provision restricted to situations where a member has both in fact and at law ceased to belong to the political party that sponsored his/her candidature.

The 1^st Respondent, conducted himself contrary to the true legal position enshrined in section 129(1) (k) thereby infringing my fundamental right to the equal protection and benefit of the law.

AFFIDAVIT OF TEMBA MLISWA

I, TEMBA MLISWA, do hereby make oath and swear that the facts

deposed to herein are to the best of my knowledge and belief true and correct. To the extent to which I make statements on matters of law, it is on the basis of the legal advice I have received and accepted. I state as follows:

1. I am the 2^nd Applicant in this matter and my address of service is c/o of my legal practitioners Nyakutombwa| Mugabe Legal Counsel, 12 Glenara Avenue, South, Harare.
2. I have read the affidavit of the 1^st Applicant, Didymus Edwin Noel Mutasa. Except where the deponent is relating his personal circumstances and history, I associate myself with the rest of the matters of fact therein and hereby adopt the same as my own for all purposes of this application. In particular, I fully associate myself with the manner in which he has explained the infringements of the four fundamental he has mentioned. They are the same fundamental rights that have been infringed in respect of me.
3. In addition to the letter referred to by the 1^st Applicant, I made an effort to meet the 1^st Respondent in person after reading in the Press that some members of my party may have written to him seeking my expulsion from Parliament. I met him in his office in the morning of 3^rd March 2015. I told him about my position that my purported expulsion was a nullity and that I was awaiting the outcome of pending court challenges to be instituted by the 1^st Applicant. He refused to tell me what he intended to do.
4.  I was in the House on 3^rd March 2015 when the 1^st Respondent made his announcement. He had not informed me about his announcement prior to making it. It was the most humiliating experience for me to have to leave the House abruptly and without prior warning.

Wherefore I pray for an order in terms of the Draft Order.

Courtesy of Veritas Zimbabwe