Prof Moyo made these remarks during CITE’s X-Space
programme, This Morning on Asakhe, Monday, where the discussion revolved around
the constitutionality of MPs resigning and running again for the same office
under different political banners.
The discussion was prompted by the resignation of
opposition party Citizens’ Coalition for Change (CCC) president, Nelson
Chamisa, which led to some elected MPs and councillors resigning from their
positions in solidarity with their leader.
Chamisa’s resignation stemmed from allegations that the
opposition party had been infiltrated by the ruling party.
He has since initiated another political movement with some
loyalists who were victims of a spate of recalls by Sengezo Tshabangu.
Explaining whether the Constitution permits such conduct,
Prof Moyo emphatically noted that it does not. He pointed to Section 129(1)(k)
of the Constitution, which prohibits what he termed as “crossing the floor”,
where an individual resigns from their seat, joins a different party, and runs
for the same seat again under the new banner.
“This situation has arisen due to Chamisa’s abandonment of
CCC, with respect to MPs and councillors who were elected last year. Now some
of the MPs are considering resigning en masse to trigger a by-election,” Prof
Moyo said.
“They don’t want to resign and leave their jobs, as one
would expect, but they want to create a vacancy and then contest for the same
position under the banner of a different political party or movement which
Chamisa is said to be forming. This is the background we have seen in the past
two weeks with Ostallos Siziba and Chibaya who are said to be controversially
testing the waters for this possibility or expected development.”
Prof Moyo noted that if the elected CCC MPs and councillors
resign all at once, it would result in a mini general election to fill the
vacant posts.
“It is not about what the Constitution says, but about what
is happening in our body politic and how it is likely to play out given the
provisions of our constitution that govern the resignation of MPs in
particular. If they resign en-masse, it would be tantamount to a mini general
election, and just five months ago there was an election. Now the idea is to
cause a sub-general election by resigning as an act of solidarity,” he said.
“My answer to whether this is constitutional is NO! They
cannot resign en masse and hope to contest in the same constituencies under a
different banner as they are contemplating. In my view, what these MPs (and
councillors) want to do is premeditated and organized floor crossing to subvert
the legislative intent behind Section 129(1)(k) of the Constitution. They also
want to subvert the general spirit of the legislature’s intent.”
Prof Moyo further highlighted that Section 129 of the
Constitution has many sub-provisions that relate to how a vacancy occurs in
Parliament.
“But in this case, Section 129 (1)(k) has the recall
provision, as read with Section 129 (1) (b), which deals with the resignation
that a vacancy occurs when an MP resigns, to the Speaker of Parliament or to
the President of Senate, and when that happens, a by-election is required. The
impression here is that the resigning MP qualifies to contest in that
by-election,” he said.
“However, the mischief we are dealing with here is what the
Constitution says after an MP resigns and if it does permit, is the mischief of
floor crossing. Does the Constitution permit floor crossing? Without doubt, the
idea is that someone resigns today to create the vacancy to contest and fill
the same vacancy tomorrow under a new name. That is floor crossing and it is
not allowed. CITE
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