High Court Defers Judgement On Mdc Case
21 May 2020
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Professor Lovemore Madhuku

State Media|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.