The High Court has upheld the expelling of the 12 MDC Alliance MPs, ruling that their recall by the Thokozane Khupe-led MDC-T faction was in compliance with the judgment by the Supreme Court of March this year.
The ruling was made after MPs, Bacilia Majaya, Mucharairwa Mugidho, Annah Nyambo and Nomathemba Ndhlovu and Senators Gideon Shoko, Helen Zivira, Tapfumanei Wunganai, Meliwe Phuti, Phylis Ndlovu, Herbert Sinamapande, Keresencia Chabuka and Siphiwa Ncube challenged their expulsion.
High Court judge Justice Pisirai Kwenda made the remarks in his judgment delivered yesterday, saying it was not up to any of the persons or organisations mentioned in the Supreme Court judgment to refuse to comply with the Supreme Court order.
“As at the date of the Supreme Court judgment, it was common cause that the third respondent (MDC-T) contested the July 2018 harmonised elections under the unconstitutional leadership of Nelson Chamisa and became the main opposition party in Parliament, after garnering 88 out of 270 seats in the National Assembly and 25 out of 60 in the Senate,” part of Kwenda’s ruling read.
“The applicants (eight expelled) are the Members of Parliament referred to. The corrective measures ordered by the Supreme Court mean that the same party is now led by the second respondent (Khupe) as its interim president with the specific mandate to convene an extra-ordinary congress in order to elect a new president,” Justice Kwenda said.
The judge said the eight were bound by the ruling even if they were not part of the proceedings in the Supreme Court ruling because they were represented by their leaders and organisations.
“They are the members of Parliament in the judgment. In any event, as I have already stated above, a constitutional remedy is made in the public interest and is binding on the citizenry at large,” the judge said.
All the 12 expelled MDC Alliance members were elected into the August House for a five-year term during the July 2018 harmonised elections under the leadership of Chamisa.
They all had approached the court separately challenging the decision by the Speaker of Parliament to expel them from Parliament after they had been recalled by Khupe on the basis that they had withdrawn their membership from the MDC-T party.
“The applicants failed to adduce proof of termination of their membership of the third respondent.
“They also failed to adduce proof of the termination of the composite political cooperation agreement which constituted the non-compete coalition of seven political parties known as the MDC Alliance. The applicants were not the signatories to the MDC Alliance coalition.
They had no capacity to terminate the coalition. They could also not quit the coalition in their individual capacities. They could only quit their party,” Justice Kwenda said.
“It is common cause before me that they ceased to be members and representatives of the third respondent due to irreconcilable differences that emerged after the handing down of the Supreme Court judgment on March 31, 2020.”
In his long judgment, the judge again said the expelled MDC Alliance members did not cite their political party as an interested party to the proceedings and as such, their application was a total failure.
The judge further said his interpretation of the law is that section 129(k)(1) of the Constitution creates a right or prerogative, at its discretion, for a political party to recall or expel a member elected into Parliament, as its member or representative, when the member concerned ceases to be its member.
Justice Kwenda further said both the MDC political formations were not placed before him and it was therefore beyond the scope of his judgment to delve into the rights which the political organisations may or may not have in terms of section 129(1)(k) of the Constitution of Zimbabwe adding the expelled members “cannot claim this right in their individual capacities”.