THE fractious nature of the main political parties in Zimbabwe since the July, 2013 elections has resulted in numerous suspensions and expulsions of party members and has meant that there has been frequent recourse to subsections 129(1) (k) and 129(1) (l) of the national Constitution. These subsections have been subject to a variety of interpretations and inconsistently implemented.
This paper sets out the circumstances in which the subsections have had application post the 31st July, 2013 elections and considers some legal aspects pertaining to the provisions.
The subsections are as follows:
129(1) (k) The seat of a Member of Parliament becomes vacant if the Member has ceased to belong to the political party of which he or she was a member when elected to Parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the member has ceased to belong to it.
129(1)(l) The seat of a Member of Parliament becomes vacant if the Member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party.
At first glance the subsections appear straight forward enough. Enormous difficulties become apparent, however, if one is to consider how the subsections are to be implemented.
The first point to note is that the Speaker of Parliament does not give effect to the provisions. The vacancy is triggered automatically by the national Constitution, once certain facts have come into being.
The Speaker, however, may be required to make a declaration that the circumstances set out in the subsections have in fact come to pass. It is here that the problems arise.
Consider subsection 129(1) (k). There are two criteria to be met here: one; that the Member has ceased to belong to the political party of which he or she was a member when elected to parliament and,two; the political party concerned, has written to the Speaker declaringthat the Member has ceased to belong to it.
The Speaker is thus required to make two findings of fact – has the member ceased to be a member of the political party to which he or she belonged when elected; and has a duly written letter confirming this fact been dispatched and received by him.
However, where a member of a party has ceased to belong to a political party, for example, on account of an expulsion, this fact may be difficult to determine. The expelled member of the party may strongly contest the expulsion, contend that the expulsion was procedurally flawed and institute appeal proceedings. How then is the Speaker to proceed?
Has or has not the Member ceased to belong to the political party in question? A similar situation arises if there has been a schism in the party, with two groups both contending to be the “real” constituents of the split party. In this situation, it is difficult for the Speaker to determine both criteria. He may not be able to tell whether it is those in Group A or Group B who have ceased to be members of the party to which they belonged when elected. He may also be unable to determine whether a letter purportedly addressed to him in terms of subsection 129 is written by the party concerned, or by a splinter group which claims to be, but is not in fact the party concerned. It may also be contended by the affected Member that the letter was written by someone without due authority to do so.
Once, again, how should the Speaker proceed in such situations? Since a declaration of a vacancy has a profound effect upon the Member and upon the public generally (as a by-election must then be called) surely administrative fairness demands that the Member be heard before the Speaker makes his findings of fact and declares the vacancy?
This then implies that the Speaker must convene a mini tribunal and essentially determine, for example, whether an expulsion is legitimate or not. Yet, by acting as a tribunal in such issues, the Speaker appears to be drawn into matters which are beyond his purview and possibly skills.
If a Member has brought the matter before the Courts, the Speaker may be rescued from this role, and hold back his declaration of a vacancy until the Courts have determined the issue.
But in so doing, the Speaker risks a Constitutional violation. Recall that the vacancy occurs regardless of any declaration thereof, whether it is by the Speaker or a court. It occurs the moment the facts come into being. Thus if a court finds that a vacancy did occur, the Speaker would have failed in his obligation of notifying the state President of the vacancy and the constitutional requirement that by-elections take place within 90 days of the occurrence of the vacancy (and not its declaration). Matters may be even more complex where the Speaker declares
the vacancy, and only then the Member appeals his expulsion from the party.
There is now the risk of contradictory rulings by the Court and the Speaker. Circumstances may thus be such that the Speaker is damned if he does declare the vacancy and damned if he does not.
Perhaps his best course of action is not to declare the vacancy if there is any doubt.
The aggrieved political party can always approach the Courts.
If however, a vacancy is declared when it ought not to be, the results could be chaotic, as by-elections may be called which ought not to be resulting in a plethora of legal challenges and the possibility of a seat being wrongfully lost never to be regained.
Matyszak is a lawyer and senior researcher at the Research and Advocacy Unit in Harare.