Mugabe files response to Mutasa, Mliswa court challenge

President Mugabe acted within the law when he fixed dates for by-elections in Headlands and Hurungwe West pursuant to a notice of vacancies that had arisen in the two constituencies.

Mugabe was responding to a constitutional challenge by former Zanu-PF MP for Headlands Mr Didymus Mutasa and former Hurungwe West legislator Mr Temba Mliswa, who are challenging their expulsion from Parliament.

Mutasa and Mliswa also want by-elections in the two constituencies set aside until the finalisation of their case.

They were expelled from Parliament after Zanu-PF advised the House of Assembly Speaker Jacob Mudenda that they were no longer members of the party.

After receiving notices from Parliament of vacancies in Headlands and Hurungwe West, President Mugabe proclaimed June 10 as the date for by-elections in the two constituencies.

Nominations for by-elections for the two constituencies are slated for April 8 at Mutare and Chinhoyi magistrates' courts respectively.

Vice President Emmerson Mnangagwa, who was authorised by President Mugabe to respond to the duo's constitutional challenge, filed his response at the Constitutional Court yesterday.

He argued that the relief sought by Mutasa and Mliswa had been overtaken by events since President Mugabe had acted in terms of the Constitution and published a proclamation calling for the election in the vacant constituencies.

". . . the second respondent (President Mugabe) has discharged his obligation in terms of the Constitution, other constitutional procedures and eventualities now flow from that action which the second respondent himself has no control over nor, with all due respect, does this court," said VP Mnangagwa.

He argued that the dispute, according to the duo's papers, revolved around the manner in which the declaration of vacancy arose in Parliament.

"The second respondent in his capacity as the President of the Republic of Zimbabwe has no role to play in the events leading up to the expulsion of the applicants (Mutasa and Mliswa) from Parliament, nor the declaration of the expulsion itself," he said.

VP Mnangagwa further argued that the involvement of President Mugabe in the matter ended with calling for an election upon advice of a vacancy by the Speaker of the House of Assembly in terms of the Constitution and the Electoral Act.

"As far as the legal role the President played . . . his was clearly lawful in terms of the applicable law," he said.

The Vice President also argued that Mutasa and Mliswa's expulsion was a consequence of the Speaker's action in terms of Section 129(1) (k) of the Constitution.

"Having carried out his functions, the Speaker duly notified the second respondent," said VP Mnangagwa. "This factual and legal position is very difficult to challenge."

He said since it was clear that the President acted according to the law in fixing the dates for by-elections, the application by Mutasa and Mliswa should be dismissed.

"The application is totally without merit and should be dismissed with costs. The applicants had clear recourse to other remedies which they chose to ignore."

Chief Justice Godfrey Chidyausiku ruled on Monday that the constitutional challenge by Mutasa and Mliswa was urgent and would be heard by a full Constitutional Court bench on 1 April.