Nothing wrong with Chamisa writing to Parly, exper...

Nothing wrong with Chamisa writing to Parly, experts say

Zim Now Writer

Legal experts have said there is nothing wrong in Citizens Coalition for Change president Nelson Chamisa writing to the Speaker on behalf of his party but it does not sound well in terms of the channels of communication of a political party.

This comes as Chamisa wrote a letter to the Speaker of Parliament, Jacob Mudenda encouraging him to disregard a letter written by the alleged interim secretary-general of the party, Sengenzo Tshabangu, recalling 15 CCC MPs.

Speaking to Zim Now, lawyer Moffat Makuvatsine said Parliament cannot ignore the letter that Tshabangu wrote, arguing that it is up to the CCC to prove that it was not from the party.

He, however, said the party has to set the record straight through the department of information within the party.

“The recalling of a Member of Parliament is done by a political party in terms of Section 129 (k) of the Constitution. The Speaker of Parliament, upon receipt of communication, which is or purports to be from a political party, stating that a Member of Parliament no longer serves the interests of the political party whose ticket he was elected upon, acts upon the communication by simply reading it. The Speaker of Parliament is not worried about the structures within a political party, his duty is just to satisfy himself that the communication before him is from a political party.

“Now, Tshabangu writes to Parliament not in his personal capacity, but says as the interim CCC secretary-general, we are recalling the following. His letter goes to the Speaker of Parliament purporting to be coming from CCC which is a political party, so the Speaker of Parliament cannot afford to ignore it. On the face of it, the communication meets the requirements of the law.

“It is only the political party which is legally positioned to challenge Tshabangu like what has been done by Chamisa in writing to the Speaker of Parliament advising him that it is not the party which has spoken. In other words, the legal standing of Tshabangu is either confirmed or denied by the political party which he alleges to have clothed him with the power to speak to the Speaker of Parliament on its behalf.

“Since CCC is denying having tasked Tshabangu to write to Parliament, the immediate action is for the political party to write to the Speaker of Parliament setting the record straight. It is very rare to find correspondences coming from the office of the president on issues like this as one would expect a political party to have structures. The political party’s department of information and publicity or any other relevant office to the cause is expected to generate the correspondence which is then referred to the Speaker.

Makuvatsine further said that as long as Tshabangu says he has been tasked by CCC to communicate to Parliament, he clothes himself with a legal right to be heard.

“The recall process is a noble process when applied correctly as it keeps sanity in political parties. A person cannot be allowed to remain on board when he/she is no longer serving the interests of the political party on whose ticket you were elected. The problem with the recall process is that it is subject to abuse as is turning out to be the case in the recent recall of CCC MPs. The abuse is allowed on the basis of the lack of specifics in terms of Section 129 (k) of the Constitution which simply says a ‘political party’ but without giving the Speaker of Parliament the duty to first verify with the party if the letter in his possession is from them.

“To add on, the first question in respect of the legal standing of Tshabangu is whether or not the Speaker has additional powers to correct his decision after discovering the mistake. Section 129 (k) of the Constitution is silent about that, and the courts will be called upon to review that decision. You will notice that currently, the CCC has no structures. Tshabangu is exploring that weakness by saying he is the interim SG.

“The legal question that he is raising by doing so, which very soon the courts will be called upon to decide upon, is ‘Can a political party be a party without structures for the purposes of Section 129 (k) of the Constitution?’ CCC might find itself in sixes and sevens because of this lacuna in structures, if the court will rule otherwise. More recalls lie in the wait if treading is not careful,” he said.

Speaker of Parliament Jacob Mudenda, a lawyer in his own right said the august House had no business debating the issue of recalls. “Accordingly, Section 129 (1) (k) of the Constitution of Zimbabwe applies as follows as it provides that ‘A 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 President of the Senate, as the case may be, has declared that the Member has ceased to belong to it’. The law has indicated in Section (1) (k) and the related previous court rulings on similar matters that they do not require me to adjudicate, but compels Parliament to only action notification upon receipt of a letter of the recall,” said Mudenda in response to Amos Chibaya in the National Assembly.

Mudenda added that in the case of the 15 recalled CCC MPs, the necessary administrative measures have been taken “to inform His Excellency the President of the Republic of Zimbabwe and the Zimbabwe Electoral Commission of the existence of the vacancies in line with Section 39 (1) of the Electoral Act, Chapter 213 as amended”.

The President of the Senate, Mabel Chinomona agreed with Mudenda saying the CCC should go to the courts to settle their case.

“It is not our duty to verify who wrote this and that. We do not know your membership. Go to the courts and clear your names. Member, it is not the duty of the Presiding Officers to check validity. That is the work of the courts. Can you please go and make clarifications with the courts? What I want is to have Members of Parliament who have been allowed to come here and sit.

“I just enjoy a full House; it is not that I enjoy your being recalled. For me to know who is writing and who is not writing, please let it be clarified by the courts. I would not be able to let you in this House when you are not cleared, I cannot do that.

“It is not me personally, who is recalling you. That matter cannot be resolved here. What was done wrongly should be done outside and be corrected, then we are also given a letter that it was not supposed to have been done and I think the courts are there to do that. We do not know who is who in your party,” Chinomona said.

Meanwhile, exiled former Minister of Information and Publicity, Professor Jonathan Moyo said Chamisa’s letter to the Speaker is manifestly improper and out of order.

Professor Moyo argued that there is no constitutional or statutory provision or standing order or rule of Parliament in terms of which any politician or leader of a political party out there can write to Parliament, through the Speaker, directing it on how to handle any correspondence regarding any of its members who are MPs.

“In terms of the Constitution of Zimbabwe, Parliament is a self-regulating and a rule bound third branch of the State, which cannot and must not be directed by strangers on what to do or not to do about anything.

“There is no politician anywhere else in the world who can do what Chamisa sought and still seeks to do in his outrageous 11 September letter, and get away with it.

“Chamisa’s 11 September letter demonstrates two telling things:

“First, Chamisa has clearly lost control of ‘his’ CCC, which he has been running like his personal tuckshop since 24 January, 2022; and now he wants to use Parliament as his post office to enable him to regain control of ‘his’ party, because it has no structures through which he can run it and control its processes. The fact that the letterhead of Chamisa’s letter to the Speaker is marked ‘Office of the President, while he signs the letter not as ‘President’, but as ‘Leader and Presidential Candidate’, clearly shows confusion and is emblematic of the fact that Chamisa has become conflicted and insecure.

“Second, the fact that Chamisa’s ‘loyalists’ were chanting September 11 on the floor of the National Assembly today, drowning the Speaker and disrupting the business of Parliament, shows quite clearly that in their confusion, Chamisa and his lot want to be a law unto themselves: they want Chamisa’s 11 September letter to have the force and effect of law, when in fact it is not even worth neither the paper nor the ink it is written on,” he said.

The recalled MPs include Pashor Sibanda, who won the Cowdray Park National Assembly seat in a tightly contested race against Finance Minister Professor Mthuli Ncube, Ereck Gono (Lobengula Magwegwe), Nicola Watson Bulawayo South), Desmond Makaza (Mpopoma Mzilikazi) Obert Manduna (Nketa), Mlilo Sitabile (P.R), Jasmine Toffa (P.R), Janeth Dube (P.R), Evidence Zana (Youth Quota), Morgan Ncube (Beitbridge West), Nomathemba Sibanda (P.R), Velisiwe Nkomo (P.R), Prince Dubeko Sibanda (Binga North) and Bright Moyo Vanya (Lupane East) and Mabvuku Tafara MP Febion Kufahakutizwi.