MDC-Alliance does not legally exist as a legal person who
can sue in court, and in the dispute of the MDC-T recall of legislators does
not have the standing to sue, the High Court has ruled, suggesting that the
affected recalled legislators bring legal actions as individuals.
The High Court said the only evidence brought before the
court showed that MDC-A was an alliance of other political parties, and
although it had been given the status of a political party under the Electoral
Act, this did not make it a legal person able to sue and be sued, in the
absence of other requirements such as a decision to be a legally incorporated
voluntary organisation or another type of body corporate.
MDC-A, which had brought an urgent High Court application
challenging MDC-T’s recall of legislators elected on the MDC-A ticket, had a
bad day in court yesterday.
The court did not go into the merits of the case, first
having to decide the preliminary issues raised by the MDC-T’s legal team as to
whether MDC-A has the legal standing to bring the suit and whether the court
has the power to interdict a parliamentary process.
Justice Tawanda Chitapi ruled that MDC-A had no legal right
and responsibility to sue on behalf of the recalled legislators and threw out
the application.
He accepted the argument by Professor Lovemeore Madhuku,
acting for the MDC-T, that the alliance had failed to establish that it had
reached the stage of being a legal person with the consequent legal capacity to
sue and be sued.
“Accordingly, the application must fail as it is
incompetent by reason” of the MDC-A’s legal incapacity, said Justice Chitapi.
The finding of the court on the MDC-A legal status had a
bearing on two legislators — Happymore Chidziva and Wellington Mariga — who
associated themselves with the party’s application seeking to block further
recalls and expulsions from Parliament of any more MPs elected into Parliament
on the MDC-A ticket.
The two felt they were under threat of such a recall and
expulsion following the expulsion of the first four.
“Therefore, the finding of invalidity of the application
for the given reason herein requires that the application is dismissed rather
than struck off the roll,” said the judge.
“The application is and it is accordingly, dismissed with
costs . . . ”
In his ruling, Justice Chitapi found that the MDC Alliance
Agreement constituted the entire agreement of the parties to it, but did not
spell out the legal status of the MDC-Alliance.
“It says nothing about whether it is a legal persona with
power to sue and be sued or, whether it exists separately from the parties to
it,” said Justice Chitapi.
“It is just a political cooperation agreement for
contestation of the 2018 elections.”
Also in determining the legal status of MDC-Alliance, the
court sought to find if the party had any instrument of incorporation.
Justice Chitapi found nothing tangible was placed before
the court.
The judge, however, conceded that MDC-Alliance might be
properly called a political party because of the definition of a political party
given the Electoral Act definition of a political party, but found that
MDC-Alliance did not have any written instrument governing how it is
constituted or operates.
“If such document is there, then the first applicant in its
wisdom withheld it from the court. If it is not there, then I am left in the
dark as to what juridical personality to accord to the first applicant,” he
said.
The court also queried how the element of having MPs
sponsored by the alliance plus the party’s recognition by the entire world
could then confer juristic status on the party.
“I am not aware of any law which provides that by the mere
fact of a voluntary association being a political party, such status makes it a
juristic entity endowed with power to sue or to be sued or to have such
capacity,” he said. The Constitution gives every citizen a right to form, join
and participate in the activities of a political party. But does not speak to
the juridical nature of a political party. The Electoral Act does not do so
either.
Justice Chitapi said what was beyond reproach is that a
political party is a voluntary association. “The voluntary association should
constitute itself in a manner that it assumes legal personality. First
applicant as already noted failed to do so,” he said.
To this end, Justice Chitapi said once the MDC Alliance
case is thrown out on the grounds of lack of capacity to sue, then Chidziva and
Mariga suffer the same fate.
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.
Arguing for MDC Alliance, the main argument of Mr Alec
Muchadehama and Mr Tendai Biti 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.
Commenting outside the court processes, veteran
lawyer-cum-politician Mr Obert Gutu has been arguing from the outset the urgent
chamber application was devoid of both factual and legal support.
Mr Gutu said MDC Alliance was not a duly constituted
political party until and unless it has formally adopted its own distinct
constitution and other relevant structures in accordance with the provisions of
the Electoral Act.
“The chickens are coming home to roost. The law is the
law,” he added. Herald
0 comments:
Post a Comment