Biti asks court to order his reinstatement in parliament

Harare East MP and MDC Alliance vice president Tendai Biti and five other lawmakers who were recalled from parliament have petitioned the High Court to enforce its judgement nullifying their expulsion.

Biti, Kucaca Phulu, Settlement Chikwinya, Willias Madzimure, Regai Tsunga and Chelesile Mahlangu have not returned to parliament since their recalls in April, despite winning two High Court applications reinstating them.

Following their recent court victory after a ruling by Justice Joseph Mafusire, the lawmakers have found their path back to the National Assembly still blocked – this time by a Supreme Court appeal launched by Benjamin Rukanda, claiming to represent the People's Democratic Party (PDP).

Biti, Phulu, Chikwinya, Madzimure, Tsunga and Mahlangu were PDP members before the party entered a coalition with the MDC-T and others to contest the 2018 elections as the MDC Alliance.

The Supreme Court in 2019 made a controversial ruling that the MDC Alliance was not a party, and that parties that formed the coalition can recall candidates they sponsored.

The ruling saw a faction of the MDC-T recalling dozens of MPs and councillors. Disaffected members of the other parties have also tried to regroup and pull off similar recalls, but the High Court found that Rukanda – claiming to be PDP secretary general – "was not a member of the PDP at the time of the 2018 general election… and has no power to recall the MPs."

Further, the court found, Rukanda had taken part in the 2018 elections as a member of the ‘Rainbow Coalition'.

Justice Mafusire ruled that Rukanda's claim to have recall powers "offends against reason."

"They should not behave like cuckoos," the judge said of Rukanda and Lucia Matibenga, who participated in the botched recall. "These are birds that do not build their own nests. They simply invade the nets of other birds and push out any eggs or nestlings in them so that they themselves can lay their eggs in those nests. We are not birds."

Rukanda and Matibenga appealed to the Supreme Court, frustrating the MPs' return to parliament.

In a High Court application filed last Friday, Biti and colleagues argued that the appeal was malicious.

"The appeal has no merit. The appeal is an abuse of the rule of law and constitutionalism. More importantly, the appeal is an assault on democracy which is protected by the constitution of Zimbabwe," the lawmakers said in their application.

"Furthermore, the appeal does not have the effect of suspending the order because it is an appeal against a declarator."

The six want the court to order Jacob Mudenda, the Speaker of the National Assembly, to comply with Justice Mafusire's judgement and reinstate them.

They are also asking that the court declare that the order in the present case shall remain operative irregardless of any leave to appeal being granted or the successful noting of an appeal at the Supreme Court.

The matter is pending.