D-Day for Mutasa, Mliswa

Sacked former Zanu-PF secretary for Administration Mr Didymus Mutasa and his nephew Temba Mliswa could have their fate as party legislators sealed today.

National Assembly Speaker Advocate Jacob Mudenda told The Herald yesterday that all things being equal, he would make an announcement on the pair's status today.

"It's going to be very, very soon if not tomorrow (today)," said Adv Mudenda.

He declined to comment on claims in some quarters that the current circumstances were similar to the MDC-T versus Renewal Team scenario where the Speaker referred the dispute to the courts to resolve the leadership of the fractious party.

Mr Mutasa was Headlands MP, while Mr Mliswa represented Hurungwe West.

Legal practitioners and political analysts said the parliamentary tenure of Mr Mutasa and Mr Mliswa was as good as over the moment Zanu-PF informed Parliament in writing that the two had been sacked.

University of Zimbabwe Constitutional law lecturer in the Department of Political Science Mr Greg Linington said as long as the political party concerned notified the Speaker or President of the Senate, the presiding officers were expected to oblige.

"Once the political party concerned has notified the Speaker, he doesn't have to do anything except to make an announcement that one has ceased to be an MP," he said.

"If it's clear who represents the party and is entitled to write to the Speaker on behalf of the political party concerned, there is no difficulty. But if there is a massive split, then you may run into problems."

Constitutional lawyer Advocate Eric Matinenga said the Speaker was not mandated to make a decision, but just an announcement when a political party advised his office of the sacking of party legislators.

"When the Speaker is advised about that (sacking), then his response to that doesn't depend on any decision on his part except to make an announcement," said Adv Matinenga.

Section 129 (k) of the Constitution on the tenure of a Member of Parliament says the seat 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."

Added Adv Matinenga: "It follows that by operation of law, certain processes are then followed.

"If it was within the discretion of the Speaker, this clause (129) (k) would have been nonsensical. He is simply carrying out what the law says he must do." He said it was only in the event of a split within a political party that the courts could be approached to make a determination of who the legitimate owners of the party were.

"If there are two claiming to be the genuine one, the court is the only arbiter in the final analysis. But obviously that depends on what is placed before the Speaker."

Another Constitutional lawyer, Mr Terrence Hussein, said the MDC-T versus Renewal scenario was different from the Zanu-PF case.

"In the MDC case, the Speaker was faced with two contesting factions claiming to be the lawful authorities within the MDC and all he said was that 'go to the courts to resolve it then come back'. In this instance, there is only one Zanu-PF which has stated categorically that Mr Mutasa and Mr Mliswa are no longer members of Zanu-PF. I don't see the Speaker facing any dilemma as he did in the MDC scenario.

"The Speaker is guided by the Constitution and what he is supposed to do is just to look at the letter from the party that sponsored the candidate and act accordingly. He doesn't have to consider or ponder over it. The organisation itself has written to the Speaker through formal channels," said Mr Hussein.

Another Constitutional lawyer, Professor Lovemore Madhuku, however differed, saying the MDC-T and Zanu-PF circumstances were the same.

"The Speaker is not a court, so if a member is disputing that he was fired then the courts are the only authority to determine that.

"The legal and political systems must allow members a right to a fair hearing. In this case, the Speaker must respect that Mutasa has disputed his expulsion and refer the case to court because he is not a judicial officer," said Mr Madhuku.

He added that by virtue of being a Zanu-PF Politburo member, a party structure that resolved that Mr Mutasa be expelled from the party, Adv Mudenda was compromised.

"He cannot make a decision in this case because he is an interested part. He must recuse himself and ask Parliament to appoint an acting Speaker to preside over this case," he said.

The Zanu-PF Politburo expelled Mr Mutasa and Mliswa a fortnight ago for undermining the revolutionary party and its leadership.