PRESIDENT Robert Mugabe’s vicious purge of a faction linked to former Vice-President Joice Mujuru was yesterday put on hold after the Constitutional Court (ConCourt) barred the veteran ruler from proclaiming by-election dates.
BY CHARLES LAITON
The ConCourt stopped Mugabe from announcing the Mwenezi East by-election date until the finalisation of a court case brought by former Masvingo Provincial Affairs minister Kudakwashe Bhasikiti, who is challenging his expulsion from Zanu PF and subsequently Parliament.
Bhasikiti was fired from the government and the ruling Zanu PF party recently for allegedly working with Mujuru to topple Mugabe through unconstitutional means.
In its judgment, the ConCourt issued an ultimatum that the High Court and the Supreme Court, if need be, should ensure that Bhasikiti’s matter is resolved by July 31 to enable the sitting of a nomination court within the prescribed constitutional period in the event of Mugabe proclaiming a by-election date.
“After reading documents and hearing counsels in this matter, the application partially succeeds and the court makes the following order,” Chief Justice Godfrey Chidyausiku said.
“The by-election for Mwenezi East should not be held before the resolution of the dispute on the legality or otherwise of the expulsion of the applicant from the second respondent (Zanu PF) pending finalisation of case number HC5285/15, which matter including any appeal therefore, shall be completed by not later than 31 July 2015.”
Bhasikiti last week, dragged Mugabe, Zanu PF, the Speaker of Parliament Jacob Mudenda and the Zimbabwe Electoral Commission (Zec) to court challenging his expulsion from the ruling party, arguing the party’s politburo had no power to expel him.
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Bhasikiti’s application was, however, not heard at the High Court, as Mudenda had booted him out of the legislature, saying Zanu PF had recalled him. This prompted Bhasikiti to approach the ConCourt seeking to interdict Mugabe from announcing a by-election date until his urgent chamber application at the High Court had been dealt with.
“It has been victory for all Members of Parliament and the electorate,” an elated Bhasikiti told NewsDay shortly after the ruling. “Political victory has demonstrated that Members of Parliament will now serve their constituencies with freedom. At the moment every Member of Parliament is not secure because they are afraid of the same fate that had befallen me.”
Zanu PF has fired several MPs linked to Mujuru and Mugabe is expected to call for by-elections in their constituencies.
Bhasikiti said he had overwhelming support from his Mwenezi East constituency. However, the ConCourt ruling could put his plans on hold.
“Mwenezi people don’t even want to hear of a by-election in their constituency because they already chose me with almost 19 000 votes and these voters were to be deprived of their votes by just a few individuals,” he said.
“The court was very clear that the illegality perpetrated by a political party cannot be condoned. I dedicate this victory to all the MPs and to each and every member that voted for me and their vote has been protected.”
Through his lawyer Tendai Biti, Bhasikiti argued his constitutional rights were not respected by the ruling Zanu PF, which expelled him without a charge and had not notified him of the move to boot him out of the party. Before the ruling, Mugabe’s lawyer, Terence Hussein urged the court to dismiss Bhasikiti’s application, arguing his client had nothing to do with the High Court matter.
“The President is obliged in terms of the law to make such a proclamation and once it is triggered it has to go ahead. The High Court matter does not involve the President and the letter to the Speaker of Parliament cannot be undone by Zanu PF, they cannot go and withdraw it.”
Mudenda’s lawyer, Simplicio Chihambakwe had also argued that his client acted according to law when he announced Bhasikiti’s expulsion from Parliament.
“Once he receives a notification from a political party, he does not make an administrative decision, he simply announces that the seat is vacant and does not declare it vacant, but the political party concerned does that.” However, analysts interviewed by NewsDay cautioned that Bhasikiti’s legal victory could be short-lived given the existing relationship between the Judiciary and Executive.
“It’s only a minor victory, but one that is magnified in a political landscape in an environment where victories against the power are few and far between,” legal expert Alex Magaisa said.
“The ConCourt has done the right thing, which is to allow his case to be heard and finalised before a by-election is held. This is what some of us have always said all this time – that when a person is expelled by his party and the party informs the Speaker it doesn’t mean automatic expulsion of the MP, but rather, that the MP can challenge his expulsion in court which is what Bhasikiti has done. Will Bhasikiti succeed at the High Court? We just don’t know, but he has a huge task to convince a court.”
The court may find that Bhasikiti’s expulsion was unlawful, but Zanu PF could still go back and do the process of expulsion correctly.
Political analyst Charles Mangongera said people should not get excited as the ruling was just procedural.
“We should not get excited. It is just procedural. The thing with this authoritarian rule is that it has shown some semblance of adhering to the law when they are not,” he said.
Mangongera cited the urgent court ruling in the case of the 21 expelled MDC-T parliamentarians in which he said the State appeared to be sincere yet they just wanted to get the matter over and done with.
“This is a matter that is pending and it has to be resolved. I do not see any judge, any court declaring invalid any of these expulsions,” Mangongera said.
“Given how our Judiciary functions and the fact that Zanu PF holds sway, it is very difficult for any judge to go against them. This is just adherence to procedure, but it does not mean Bhasikiti will get a fair hearing and justice will be served.”
Zec was represented by Tawanda Kanengoni and Charles Nyika.