One of the most liberating things in life is being able to express opinions freely because you believe in them, not because they are popular. Just because many people think a thing is truly what they say it is does not make them right.
It was Marcus Aurelius that said “The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane.”
More often than not, great advances in life have come because someone refused to accept received wisdom and chose to be right, not popular.
Galileo Galilei, facing certain death from the Inquisition of having suggested the blasphemy that the earth was round and turns on an axis, was offered the chance save his soul if he could only recant and say it was indeed flat, and he replied “e pur si muove” (“Although it does move”). He died. But was right.
And so it was, that on 27 January 2024 I wrote the following statement on the microblogging site formerly known as Twitter:
RESIGNATIONS – MY UNPOPULAR OPINION
“The full meaning of s129(1)(k) is that an MP in Parliament belongs to the political party that sponsored them at the last election. That is why parties get the right to recall people who have left the party. The constitution gives the political party the right to not lose its seat by virtue of a member leaving the party, but the Electoral Act yanks that right away by requiring a by-election to fill the vacancy. This in my view makes the right in section 129(1)(k) weaker, because anything can happen at a by-election. Political parties should be allowed to simply nominate replacements when they recall someone. That is what preserves the right to recall. It also protects the public purse from funding factional fights in political parties.
This is what I refer to as the full meaning of section 129(1)(k).
Now, my unpopular view: what of MPs who resign as we are starting to see?
Where an MP resigns because they want to join another political party and thus trigger a by-election without being recalled, the clear intention is to defeat the full meaning of section 129(1)(k). Instead of burdening the public purse with the cost of their transfer to another political party, the party they have left should simply be allowed to appoint a replacement until the next election.
By requiring by-elections each time a person leaves Parliament including to join another political party the Electoral Act removes a Constitutional right belonging to political parties.
Those that understand law without bias will see the reason in this opinion. Those that think law must bend to what they want will no doubt find comfort in name calling, but any objective person will agree that this is an issue that might benefit from court interpretation.”
I attached to this post a screenshot of section 129 of the Constitution of the Republic of Zimbabwe.
Needless to say, the reactions I received were mostly vitrioli. A good many suggested that this was because, following Nelson Chamisa’s abandonment of the political party that carries as its symbol his face, and that has in its terms for its very legitimacy his name as the only leader, it is likely that many MPs elected under the Citizens Coalition for Change (CCC) ticket would want to follow him should he form another. Following him would of course attract the wrath of the CCC and result in a recall in terms of section 129(1)(k).
According to those that differ with me, section 129(1)(b) allows any MP if they so choose to resign their membership of Parliament, end of story. That those who resign plan to then stand in the subsequent by-election representing whatever political party Nelson Chamisa comes up with this time is neither here nor there, it was argued.
Unfortunately, those that differ with me are not being honest and are, in my view, most likely wrong.
Resignation, in the sense as used in section 129(1)(b), must refer to voluntarily leaving the position of being an MP. The very argument used to dismiss my opinion defeats itself: anyone who resigns in order to (a) avoid being recalled by their political party because they want to join Nelson Chamisa’s new formation and (b) trigger a by-election by said resignation is not someone leaving the position of being an MP.
Instead, that is someone looking to trigger a by-election for their personal convenience, sure in the knowledge that this is at zero expense for themselves and confident (rightly or wrongly) that they will win their seat back in the subsequent by-election since we know from Nelson Chamisa’s statement that any candidate that he sponsors will win since, as he said ndiye anodiwa nevanhu – which really is just a sanitised version of the Muzenda-esque “chero tikaisa dhongi pa ballot and say that is our candidate, it will win”.
Forgetting for one moment the burden to the public purse, anyone must agree that if the rights in section 129(1)(k) are meaningful, they (a) accrue to a political party and (b) they seek to preserve a political party’s numbers in Parliament in between elections. Otherwise, there really is no right worth asserting. If that is the case, it follows that the holding of by-elections following the recall of an MP is wrong, since it does not guarantee the protection of this right.
The attentive reader will say, but we are talking of resignations here, not recalls. That is true. However, the Constitution cannot have envisaged a “loaded resignation”, one that is not in fact not a resignation at all but a stratagem to avoid the consequences of section 129(1)(k) – which as I have said cannot have been intended to result in by-elections. Had section 129(1)(k) been properly understood and implemented, there would be no by-elections after a recall, and the mischief in these mooted resignations would be easy to demonstrate.
However, the fact that we have misapplied section 129(1)(k) and held by-elections thereby extinguishing (or potentially extinguishing) the right that political parties seek to assert under that section, does not justify us ignoring the fact that any action taken under one section of a constitution (in this case s129(1)(b)) in order to undermine another section (in this case s129(1)(k)) cannot possibly have been what was intended when section 129(1)(b) was crafted.
The constitution does not say that when people are recalled there must be a by-election. So the constitution itself is not internally inconsistent, the holding of by-elections is in the Electoral Act. And, as anyone that has read this far might know, the Constitution trumps any Act of Parliament.
Any right thinking person will agree that given the ease with which people can form political parties in this country, it would be absurd to read section 129(1)(b) as permitting a situation whereby those elected into Parliament can resign each time they get the mood to join a different political party and burden the country with by-elections to formalise their change of affiliation. The very notion that the country’s founding document allows the facilitation, at great public expense, of factional fights in unregistered and unregulated voluntary associations is patently absurd.
Anyone that disagrees with me knows full well that if asked in 2013 whether section 129(1)(b) was intended to permit resignations for the purposes of joining another political party, they would have said no. It is clear that section 129(1)(b) was intended for situations where someone is leaving Parliament, not intending to change the colour of their garments. Reason, and reasonableness, are at the heart of law. Laws are made by people, people are not made for laws.
The Constitution, and indeed all laws, presuppose that Parliament could never have intended to make laws whose outcomes are ridiculous and capable of being circumvented to permit mischief while defeating the import of similar or indeed different clauses of the same law. Political parties have a right to maintain their numbers from the previous election which can and should only be lost if a constitutional provision takes them away. There is none that does. Those who resign their positions, those who get recalled, must simply be replaced by the political parties that sponsored them at the previous election. That is how you give effect to the rights that section 129 gives to political parties. It also saves the nation a lot of money and, as things stand, unending by-elections at great cost to the public purse.
Tinomudaishe Chinyoka is a Harare based Advocate
