The High Court will rule on Friday next week on preliminary
issues raised by lawyers representing MDC-Alliance and MDC-T in a suit brought
by MDC-A seeking a ban on the MDC-T recalling from Parliament more legislators
elected on the MDC-A ticket.
The main preliminary issue is whether the court has the
power to interdict a parliamentary process and whether MDC-A has the legal
standing to bring the suit.
In the urgent hearing, MDC-A along with two legislators
Happymore Chidziva and Wellington Mariga, approached the High Court seeking an
interdict against further recall and expulsion from Parliament of any more MPs
elected into Parliament on the party’s ticket.
This followed the recent recall from Parliament of four MDC
Alliance MPs — Charlton Hwende, Thabitha Khumalo, Prosper Mutseyami and Lilian
Timveous — by reinstated MDC-T secretary-general Douglas Mwonzora.
The MDC-A legal team was led by Mr Tendai Biti, while MDC-T
leader Dr Thokozani Khupe was represented by Professor Lovemore Madhuku. Because
the court was first looking at preliminary issues raised by the MDC-T, Prof
Madhuku addressed the court first.
Prof Madhuku’s main argument was that the court could not
hear the case for two reasons, that a political party had no inherent
constitutional right to sue on behalf of Members of Parliament and that the
MDC-A was not a legal person, being just an umbrella body for a group of
political parties.
Mr Biti’s main argument was that the MDC Alliance was the
actual party that had sponsored the legislators in the election and that
therefore the MDC-T, whatever its legal status, could not recall legislators
since the MDC-A was now in fact, a party in its own right.
He argued that the matter was urgent because the MDC-T was
threatening to recall more legislators if they continued to identify themselves
with the MDC Alliance. Thus the MDC-A wanted the relief of an interdict,
pending the finalisation of the matter.
Going into detail, Prof Madhuku said: “Under our
Constitution, a political party does not own Members of Parliament.” He
submitted that the court should throw out the application on the basis that it
was incurably defective at law, citing a number of procedural irregularities
characterising the urgent application.
Prof Madhuku also argued the application, though disguised
as an urgent chamber application, was targeted on Parliament and was
essentially an allegation that Parliament will fail to fulfil its
Constitutional obligations to protect the tenure of seats. Only the
Constitutional Court had jurisdiction to deal with such a matter, he said.
“The relief sought is unconstitutional on the basis that
the court cannot interdict parliamentary process on an urgent basis in view of
the doctrine of separation of powers,” said Prof Madhuku.
He also argued that the MDC-A had no legal standing to
bring such an application because it was not a legal person. Even if the party
was held to be a legal person, the MDC-A still had no legal basis to represent
Members of Parliament. This disqualified Chidziva and Mariga to be
independently before the court if the MDC-A was held to be improperly before
it.
Prof Madhuku also accused MDC-A lawyers led by Mr Biti of
hiding the Supreme Court judgment that gave rise to the recalling of the MPs.
When Mr Biti rose to counter-argue the matter, he was shown
the Alliance Agreement by Justice Tawanda Chitapi. It was signed by the late
Morgan Tsvangirai, which showed that the parties to the electoral pact would
remain independent and separate, which the MDC-T argues means it has the power
to recall MPs who were sponsored in the Allaince line-up by the MDC-T. The
alliance allocated blocks of right of nomination to the parties forming the
Alliance.
But Mr Biti argued that the alliance agreement had died a
natural death because the MDC-A was now a party.
Mr Biti was also shown two letters, one written by Mr
Hwende on March 2 this year, giving Mr Douglas Mwonzora final warning. The
letter was written on MDC letterhead not on MDC-A letterhead. When asked to
explain, the lawyer could not offer an explanation.
He was also at pain to explain why the letter recalling
Victoria Falls mayor signed by Mr Hwende on February 24, was on the MDC
letterhead.
He argued that the judge should “ignore the alliance
agreement”.
Justice Chitapi reserved ruling to May 29, to study the
submissions made by the parties’ lawyers on the preliminary issues, before
going into the merits of the case.
In its application MDC-A wants the court to stop Mr
Mwonzora, Dr Khupe, Speaker of Parliament Advocate Jacob Mudenda, Senate
President Mabel Chinomona and Local Government and Public Works Minister July
Moyo from recalling legislators and local government councillors elected under
the MDC-A ticket.
The MDC-A also wants Adv Mudenda, Senator Chinomona and
Minister Moyo barred from accepting instructions from the Dr Khupe-led party to
expel its members. Herald
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