THE High Court has barred the Thokozani Khupe-led MDC-T and National Assembly Speaker Jacob Mudenda from replacing two MDC Alliance legislators as lawmakers after they were recalled on April 3, this year.
This comes as reinstated MDC secretary-general Douglas Mwonzora said the Khupe-led camp had a right to recall the legislators — Lillian Timveos and Thabitha Khumalo — from the National Assembly, following the nullification of Nelson Chamisa’s presidency.
Justice Joseph Mafusire yesterday granted the temporary order not to fill their vacancies in Parliament until their matter challenging their expulsion is determined by the High Court.
Mafusire made a U-turn from a previous judgment by a fellow judge Tawanda Chitapi who had dismissed the MDC Alliance as a political party and ruled that it was indeed a recognised political formation.
“I am satisfied that the applicants have proved a prima facie case and that they are entitled to relief. Their membership in Parliament has been abruptly terminated on the basis of a process of dubious legality. It is common cause they were in Parliament on the ticket of a political formation called the MDC Alliance.
“For two years, they have participated in the business of Parliament as members of MDC-A. (The) Zimbabwe Electoral Commission registered the MDC-A as a political party. Indeed, it is a political party for the purposes of the Constitution and of the Electoral Act.
“Parliament recognises it as a political party. The applicants have produced documents showing that they were nominated by the MDC-A political party on the proportional representation for the women’s quotas for the two Houses of Parliament.
Mafusire noted how the government also recognised MDC-A as a political party with reference being made to a copy of the Government Gazette of February 28 tendered by applicants’ lawyers Mbidzo Muchadehama and Makoni.
He noted that even Mwonzora sat in the Senate on the ticket of the MDC-A, which they are fighting to disregard.
“The executive arm of government recognises MDC-A as a political party. The applicants have produced a copy of a Government Gazette of February 28 showing that the MDC-A qualifies as a political party for government funding under the Political Parties (Finance) Act,” Mafusire said.
Mafusire said the argument that no party could claim direct membership of the MDC-A could not be sustained and was “a self-serving gloss” as it had morphed into a full-fledged political party by the time of the 2018 harmonised elections.
He recognised how his judgment contradicted Chitapi’s and recommended that matters involving the “same issues” ought to be dealt with by the same judge.
“Obviously, it is undesirable that there should be conflicting decisions by judges from the same court over the same issue. It brings uncertainty in the law, causes confusion and adversely affects the integrity of the courts,” Mafusire said.
“But this is always an inherent and ever-present danger in the adjudication process. One way to minimise the incidence of conflicting decisions is, where possible, to have all the matters dealing with the same point or similar issues consolidated and heard by one judge.”