My name is Terence T Simbi and I am an independent member of the Zimbabwean society, meaning that I make rational decision in political matters. In the July 2013 harmonised elections, I voted under the Norton constituency in the ward 10 council.
By Terence T Simbi
In the event of an election, the Zimbabwean Constitution assures me the right of choice to elect any candidate, who I feel would best represent my interests in the different levels of government for in that case the choice to elect a councillor, member of the national assembly, Senator and President of the Republic.
In the seat as member of the national assembly, I voted for the Zanu PF candidate Christopher Mustvangwa as I considered him as a vocal and accessible to represent my views in Parliament from his characteristics of being a fearless man who stands for what is right regardless of any party position. In the seat for the president of the Republic I voted for the MDC-T candidate the late Morgan Tsvangirai as I felt that he had the policies to re-engage the country with the world in terms of trade, investments and access to finance on the international markets that I viewed were paramount for the economy of Zimbabwe at that time.
I was happy that I was able to achieve the desired result for the Member of Parliament as Mutsvangwa was elected, although I failed to achieve the desired result for the Presidency.
As I reflect on the time Mutsvangwa did serve as a member of the National Assembly on my behalf and also appointed to Cabinet as Foreign Affairs deputy minister, he represented my interests very well that were in line with my calculations when I voted for him to the Parliament.
He even stood against the political party line to which he belonged to like in the former First Lady Grace Mugabe’s United States’ visa to the United Nations summit issue to, which I felt represented my views too.
This was my choice to consider the character and principals of the candidate who I wanted to put in office regardless of their party allegiances.
To some extent, I knew that no person could have defeated the former President in that election due to the provision I seek to have removed from our current constitution.
In this constitutional application I feel that my constitutional right to make political choices freely that are assured by the Constitution under section 67 clause 1(b), in the event of elections and the representation in Parliament by any candidate who I feel myself would best represent my interests in these houses are being infringed upon by another provision in the same Constitution section 129 clause (K).
This clause states that “if a member 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: the member will be recalled from Parliament by that party”.
This provision simply means that for whatever political difference my preferred choice has with his political establishment, that political establishment has the right to infringe upon my right to elect any candidate to Parliament by giving the political party this right to recall members from Parliament to which in this case that political party had no influence on my decision to elect Mutsvangwa.
Members of Parliament are voted for by the people of a particular constituency under Section 117 who some like me don’t belong to any political establishment, but are just simply rational voters who consider facts before voting for preferred candidates not political parties.
How then can a political party have the right to consider my choice as void? This is not in line with the rights assigned to me under my freedoms of association or dissociation in this constitution.
The political and democratic argument for the complete removal of section 129(K) from our Constitution starts from the principals of the state highlighted in chapter (2) section 8 of the Constitution, where it states “the objectives of the chapter guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement and promotion of a sustainable, just, free and democratic society in which people enjoy prosperous, happy and fulfilling lives.”
Politically, let me describe section 129(K) as a technical coup that has been used by these same political parties and their leaders to maintain a dictatorial stance to leadership in their political parties, thereby affecting the principals to having sustainable, just, free and democratic institutions like the Parliament, which has a special role in ensuring good governance in our country.
It is important to note that a few political parties, through top leaders at the time of drafting this Constitution, were the only major players in getting it to life although the majority of Zimbabwean just voted for it in the referendum.
Looking back at how this provision section 129(K) has been used by these major political parties like Zanu PF, the ruling party, and the MDC, the major opposition, you will see that the provision has been used to silence any challenge to political leadership and party policy position leading us to having undemocratic political parties and also having political parties infringing our rights to making political choices freely which I have explained above.
major political parties like Zanu PF, the ruling party, and the MDC, the major opposition, you will see that the provision has been used to silence any challenge to political leadership and party policy position leading us to having undemocratic political parties and also having political parties infringing our rights to making political choices freely which I have explained above.
Let me start by the ruling party Zanu PF, when its members like the members of Parliament under my constituency, both Mutsvangwa and current representative Temba Mliswa and others like Didymus Mutasa, Rugare Gumbo started raising concerns about the direction of their political party.
Top leadership, according to its political party factional lines, used this provision as a tool to weed out democratically elected members from Parliament, as they were accused of being disloyal to the principals of their political parties.
They had proceedings to boot them out of the political party and in violation of we the people of the constituency’s rights had section 129(k) being used to recall them from Parliament.
The same also applies to the major opposition the MDC. When the political party was still being lead by the late Tsvangirai after the commencement of this constitution, other senior leaders like Tendai Biti the former secretary general, Elton Magoma and others filed a motion of no confidence, thus challenged Tsvangirai’s leadership.
Again, the recall provision was used as a silencing mechanism. This democratic, open and just motion was met with violence and expulsion from the political party then to the worst the use section 129(K) to remove these democratically elected representatives from Parliament.”
In the current disputes between the two MDC factions — the Khupe and Chamisa — again, it has been used to silence and remove from Parliament those of a different view.
The fear of use or the use of this recall provision is undemocratic as it does not allow for any form of challenge to political party policy and leadership whether it be, democratic, constitutional and legitimate in those political parties.
Rather, this provision has both acted and been used as a silencing and power consolidation mechanism by political parties leaders not allowing for sustainable, just, free and democratic processes in their institutions.
The general rule is for when a fellow party member has a different policy view or when another party member gears up for political leadership his/her bid is crushed through the use of this constitutional provision.
In all the elective congresses, I have observed in our political parties it interesting to note that the top leaders have never had many challengers.
The weeding of contrary views would have already happened long before elective congresses.
If political parties are undemocratic in their conduct how then can they act as representative of a particular electorate’s constituency by having power to remove democratically elected members from Parliament.
Our State institutions can no longer be made weak from political party disputes which in most cases don’t allow for open free, just and democratic processes to be instituted were differences in views and policies are encompassed in their members.
From what we have seen all these major political parties are factional and have poor conflict resolution mechanism.
The Constitution and the running of government should not be affected and must not contain provisions that allow these undemocratic processes and other constitutional violations like the issue of the military coup that happened in November 2017 to happen, which I will explain below and yes it’s all from this provision section 129(K).
In my general understanding, the objective of the Constitution is to create a system of good governance were the people consciously and purposefully create a free, just and united nation, whose primary vision is on the improvement of the quality of life for everyone in Zimbabwe.
To achieve this objective a few people in the population are elected to government, who some have the duty to appoint other representatives to be the principal representatives and servants of all the people in the country because the whole population cannot be in government.
The main branches are the elected and appointed executive, an elected Parliament and the Judiciary, which is also appointed to government.
The president is the head of the state or in other words the head of the executive and his/her power is derived from use the people of Zimbabwe as a whole through an election and works as our servant accordingly.
The president exercises his/her power through appointing a cabinet which is responsible for performing his/her programme, that is in line with the nation objective of improving the quality of life for all Zimbabweans in a sustainable, just, free and democratic manner.
He/she has the power to hire or fire any member of Parliament and five other persons into or out off Cabinet at any moment for the fulfilment of his agenda as he/she sees fit.
The Parliament is the other legislative arm of government that must derive its mandate from us the people and I repeat only from us the people.
In an ideal constitution it “has power to ensure that the provisions of the Constitution are upheld and that the State and all institutions and agencies of government at every level act constitutionally and in the national interest.”
Under Section 119(2), thus in provision (3), all institutions and agencies of the State and government at every level are accountable to Parliament.
These provisions clearly make all branches and institutions of government the executive, the Parliament itself and other state institutions to be accountable to the Parliament.
The Parliament has a clear role of playing judge to every other government branch, state institution or agency as it is created by and representative of “we the people of Zimbabwe”, thus, its composition should never ever be edited by any other entity or branch of government except us the people and, at the worst, the whole Parliament itself using prescribed decision making tools.
This is the ideal set-up, which contains clear checks and balance for good governance and accountability that does not centralise power in one arm of government through special provisions in other areas of the constitution.
In the past and also predicatively in the immediate future, the President of Zimbabwe has and will be the leader of the political party, which has and will attain the majority of seats in both the house of national assembly and the senate (Parliament).
As I have explained above, one of the most important functions of Parliament is to make the executive accountable.
How then can Parliament fully make the executive accountable to it when the majority of its members are from the majority political party having this constitutional provision that acts as a gun on their heads?
If member expresses a viewpoint different from the party leadership and then he/she tries to make the executive accountable in Parliament, then fake charges of disloyalty case and the recall provision will be used against them causing Parliament to fail in its oversight role like the Mutsvangwa case.
The use of this provision section 129(k) by former President Robert Mugabe ensured him ultimate power as leader of the Republic and his political party Zanu PF.
Anyone who had a different view on policy, leadership of the party and the happenings in Zanu PF would have rather kept silent or face the axe.
The only time we saw members from Zanu PF have different views from the executive being expressed in the Parliament was when a greater constitutional violation happened.
This is the time to now ensure that this greater constitutional violation will never ever happen again — that is the deployment of the military by a commander of the army and not the commander and chief of the defence forces for the settlement of internal party politics.
This is the reason why in recent interviews in the national radios, you see and hear Zanu PF members putting all the blame on Mugabe even for periods they were in these houses of Parliament just acting like lame ducks in the political system.
In the Terence Mukupe vs Tendai Biti interview, you clearly hear a Zanu PF member trying to distance himself from the destruction and degeneration that happened in the country, placing all the blame on Mugabe.
This constitutional provision allows for an unchecked executive. The other provision that the Vice-President serves at the pleasure of the President is equally distractive.
These two lines in the Constitution reduce the effectiveness of checks and balances in our governance systems thus technically promote dictatorial tendencies.
We, the rational voters, know that unchecked political power is dangerous for anyone no-matter his/her intension on attainment of political office.
Absolute power absolutely corrupts anyone. In the exercise of our voting rights we the rational voters vote for a candidate to Parliament who is from one party and then for the executive we vote for the other party.
We are trying to create a check and balancing mechanism through our voting rights. The executive will be fully accountable to a Parliament that is of another party.
This current Constitution assumes that when you vote for a candidate, you have voted for a particular political party, which is not the case, my fellow judges.
In conclusion, my fellow judges and respondents to this constitutional application the issue to consider here, is whether the provisions set in section 129(K) are consistent with the values of this constitution.
Does this provision violate other sacred rights assured to other entities in the same constitutions? Below is the list of issues to consider;
1. Is the use of section 129(k) in violation with a constituencies electorate’s rights to make political choices freely.
2. Is the provision consistent with the objectives of the State, in insuring that the state and all institutions and agencies of government at every level formulate laws and policy decisions that are lead to the establishment, enhancement and promotion of a sustainable, just, free and democratic society.
3. Does the use or treat of use of this provision aid or hider the Parliament’s role of making the executive accountable to it.
4. To what extent does this provision lead to the violation of other more sacred constitutional provision like section 213?
Terence Simbi writes in his personal capacity