HARARE – The Harare High Court on Thursday reserved judgement in an application brought by 14 Citizens Coalition for Change (CCC) MPs and nine senators who argue that their recalls from parliament were unlawful.

Justice Munamato Mutevedzi heard arguments by lawyers for the lawmakers, the Speaker of Parliament, the Zimbabwe Electoral Commission, the President of the Senate and Sengezo Tshabangu, who triggered the recalls after declaring himself secretary general of the CCC.

The judge said he would deliver judgement before November 7 when the nomination courts will sit across the country to register candidates for by-elections which have been called for December 9. The by-elections will be cancelled if the CCC lawmakers win in court.

Advocate Amanda Sihle Ndlovu, representing some of the MPs, said the lawmakers were denying that they had ceased to be members of the CCC, and they maintained that Tshabangu did not have authority from the party to recall them.

Their position, she told the court, placed the onus on Tshabangu to prove that indeed they have been expelled and that he had authority to write to the Speaker and senate president recalling them.

“This matter is capable of being resolved by material concessions raised by Tshabangu in his notice of opposition. Applicants assert that this was an act of fraud and of no legal consequence. Once that assertion has been made, the onus is on Tshabangu to demonstrate the cause for his actions,” Advocate Ndlovu said.

“Two things must be true: that the applicants have ceased to be members of the political party, and that the political party is behind the recalls. Tshabangu is not a member of the political party and had nothing to do with its internal affairs; this is common cause. Tshabangu has not denied these factual elements.

“So where there is common cause that applicants were members of CCC, and that Tshabangu had no authority to act on behalf of CCC, that leaves nothing to be debated before this honourable court. Tshabangu has failed to show on what authority he acts, and on what basis.”

She said Tshabangu’s letters to parliament were “an act of fraud and ought to be dismissed.”

“The position of CCC is clear. The signatories of the party had been declared and stated and the membership of its members was also declared and placed on record. The membership of the applicants is an issue of common cause. It’s not disputed that they were elected as MPs which leaves the onus on Tshabangu to prove his case.”

Alec Muchadehama, acting for some of the lawmakers, added: “There is absolutely no explanation on why the Speaker chose to go and confirm the recalls.

“The Speaker and the President of the Senate adjudicated on the matter and were not acting in terms provided for in the constitution. The Speaker ought not to have filed opposing papers. We submit that the actions of the Speaker were improper. Without engaging the CCC parliament caucus, they announced the expulsion of the applicants.”

Advocate Lewis Uriri, for Tshabangu, raised several preliminary points.

“The High Court has no jurisdiction to hear the matter. Muchadehama told this court that the Speaker and the President of the Senate did not act lawfully, that they acted outside constitutional provisions. The effect of this allegation is that the constitution has excluded the jurisdiction of this court to hear this matter. Only the Constitutional Court has authority to hear this case,” Uriri argued.

“If we assume they are right, it means that parliament has failed in a constitutional obligation. What they seek therefore is a finding that parliament has violated a constitutional provision. The Speaker is not concerned with inner issues of a political party but he is obligated to receive a letter. When he receives it he is allowed to act in the manner he did and this is what he did. He is the Speaker and so his conduct was correct.

“Once the Speaker has acted in terms of section 129 of the constitution, there is a result and that result is that the seat is vacated and that seat can only be refilled either by a by-election or the Speaker’s decision is set aside. But absent the party concerned, they cannot resolve the dispute that has arisen. Why did they not cite CCC, because they make submissions which ought to be supported by CCC? CCC is quiet because it is happy with the recalls.”

In response, Advocate Ndlovu said the lawmakers had no reason to cite the CCC because it is not the party that recalled them but Tshabangu, “who was on a frolic of his own.”

She said the mere fact that “Tshabangu is crying for the party to be cited is actually an admission that he is not acting for the party because if he did act for the party all he needed to do was simply produce proof that he acted for the party, which he had failed to do.”

Came back Uriri: “CCC has a duty to speak but it did not. It has not been cited. It has not sought a joinder. The applicants did not seek a joinder because they know CCC is happy.

“Humpty Dumpty cannot be rescued. The matter ought to be struck off the roll or dismissed with costs it deserves.”

Lawyers for the MPs and Senators amended the relief sought, dropping their demand that the Speaker and the President of the Senate be interdicted from “interfering with their duties as Members of Parliament.”

They however maintain, in the draft order sought, that the recalls were “illegal, null and void and of no force and effect.” They want the court to declare that they are “still Members of Parliament duly elected as such on a CCC political party ticket” and want Tshabangu “interdicted and restrained from effecting any further recalls.”

Speaking to reporters outside court, Tshabangu’s lawyer Advocate Uriri said: “Their case after they had spoken was worse than before they spoke. They were like Humpty Dumpty after the fall. No amount of papering can piece the case together. They came to court accusing the Speaker and President of the Senate and made no case substantively against Tshabangu.

“The withdrawal against the Speaker and the President of the Senate and ZEC left them with nothing to stand on. They are in more pieces than Humpty Dumpty after the catastrophe.”

CCC spokesman Gift Ostallos Siziba also told journalists: “We came here to ask the court to obtain from Tshabangu answers to the following: Does he have a mandate to recall MPs? Is he the secretary general of CCC?

“The onus was on him to provide satisfactory answers to those key questions. He failed dismally. That’s why we had to shift focus from the Speaker of Parliament, ZEC and the senate president because the crux of the matter really is: Have the 14 MPs and nine senators ceased to be members of CCC? And the one who recalled them, does he have that power of recall?”