News / Local
Thabani Mpofu tears Tshabangu recalls apart
24 Nov 2023 at 12:48hrs | Views
Advocate Thabani Mpofu, one of Zimbabwe's most prominent lawyers, has ruthlessly torn asunder opposition political activist Sengezo Tshabangu's case of recalling main opposition CCC MPs, senators and councillors, saying he has admitted that the grounds upon which he stood executing his mission were precariously shaky politically and legally to sustain his disruptive and undemocratic subversion of the people's will.
Initially, Tshabangu said his mission was to "restore sanity" by addressing impositions of candidates in CCC, particularly Shona candidates in Bulawayo, a mainly Ndebele-speaking city.
However, Tshabangu went further than that recalling MPs everywhere without showing how they were imposed, raising questions about his underlying motives and political agenda.
Mpofu says Tshabangu had no locus standi and jurisdiction in the party where he claims to be an interim secretary-general to begin with, but also did not produced evidence to prove and support various allegations to justify his disruptive recalls.
He only succeed so far largely because the Speaker of Parliament and the High Court, in particular, misdirected themselves.
In his heads of argument in a Supreme Court appeal against a recent High Court judgement by Justice Munamato Mutevedzi dismissing 14 CCC MPs' challenge against the recalls, Mpofu asks relevant and fundamental questions which were ignored by the Speaker of Parliament and Mutevedzi in enforcing the recalls by what the legislators have described as an impostor.
Mpofu says Tshabangu admits he he has no political standing to do what he did as he made the recalls as an individual to "restore sanity" in the party and to remove Shona people who were elected MPs in Bulawayo, a mainly Ndebele-speaking city.
In the heads of argument filed on behalf of 14 CCC appellants' Supreme Court appeal, Mpofu argues that Tshabangu's case is fundamentally flawed and unsustainable.
He says the High Court failed to establish the facts, resolve the root cause of the dispute and uphold the rights of legislators, and ultimately the voice of the electorate.
"It must, if at all, take exceptional circumstances for people's political choices, constitutionally expressed through a process of adult universal suffrage, to be ignored by anyone, let alone the courts. Whilst it belongs to political actors to make and score political points against each other, a court of law must, when confronted with a matter, never lose the essence. Regrettably the court aquo completely lost its path and did not consider, that in matters electoral, the voice of the electorate is sacrosanct; that any perceived procedural inadequacies cannot trump the clearly expressed voice of the people, and that for a court of law, there is really no choice between sense and nonsense. A document which is completely dispositive of this matter and appears at record page 165 was not had regard to aquo. The appeal ought to succeed. The facts necessary to dispose of this matter resolve it without any analysis and are these:
"a. Appellants were in August of this year elected as members of the house of assembly on the Citizens Coalition for Change (CCC)1 political party ticket. They were sworn in as members of the House of Assembly sometime in September 2023.
b. The fourteen never resigned their membership with the CCC neither were they at any point in time expelled.
c. On the 4th of October 2023, a few days after they were sworn in, first respondent wrote to second respondent. In that letter he advised that:
i. He was the interim Secretary General of the CCC. He did not explain whether he had been voted into office at a congress or otherwise appointed and if so by whom.
ii. He had a copy of the constitution of the CCC which he shared with the second respondent.
He did not explain who had authored this constitution or whether it had been adopted by the CCC at any congress or some such gathering. Crucially, there was no reference to whether the membership of the appellants had been acquired and subsequently lost in terms of that constitution.
iii. First to fourteenth appellants had ceased being members of the CCC. He did not explain whether such cessation of membership was because of their deliberate acts or the acts of the political party the CCC.
iv. That second respondent was as a result asked to proceed in terms of the provisions of the Constitution of Zimbabwe, 2013. Such provisions not having been identified, it is curious why second respondent thought the letter required him to activate the recall provisions.
d. At round about the same time, second respondent also received correspondence from Advocate Nelson Chamisa (Chamisa) which advised him that on matters relating to the CCC, he only had to receive and act on correspondence from his office and that the correspondence he had received from first respondent did not reflect the position of the CCC party. Chamisa an officer of the High Court, is the leader of the CCC party, a fact accepted by the first respondent.
e. On the 6th of October 2023, second respondent wrote third respondent advising that there were now vacancies in appellants' constituencies. This triggered an urgent court application filed by the appellants whose dismissal has now led to this appeal.
f. On the 11th of October 2023, first respondent issued a statement (at record page 165) in terms of which he explained that:
i. The recall of appellants was his own act and not that of the CCC political party.
ii. That it had been necessitated by the fact that appellants had in his view, been corruptly elected during the internal CCC election process and that some of them were Shona people in Ndebele territory.
iii. That the fourteen had in fact not ceased being members of the CCC party.
iv. That Chamisa was the leader of the CCC political party.
1.3 It must take an unfortunate willing suspension of disbelief for anyone to claim, let alone conclude, that honourable members who took oaths of office representing a political party in September had, without being dismissed, renounced such oaths by the 4th of October. It would equally take a cruelty beyond comprehension for anyone to require the masses that queued up for 24 hours in August in order for them to cast their votes to queue up again in December for the same process. At a level that we must all accept; the law is meant to serve the people and meet their legitimate aspirations. The duty to state this is intrinsic in the authority granted the Supreme Court by the people of Zimbabwe. Much is given to this court; justifiably, from it, much is expected.
1.4 The law governing recalls is clear and straightforward. The court below set it out with consummate ease. Section 129(1)(k) of the constitution provides as follows:
"The seat of a Member of Parliament becomes vacant
(k) if the Member has ceased to belong to the political party which 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.
In Madzimure & Ors v Speaker of Parliament & Ors CCZ-8-19 the apex court considered that this provision contemplates and is triggered by, in paraphrase, the following:
a. The member should have been sponsored by the political party upon their entry to Parliament. This is indubitably true of all appellants.
b. The member should have ceased, as a matter of fact, to belong to the political party that sponsored their entry to Parliament.
Disagreements with that political party or members, real or imagined, do not scale the constitutional threshold. The legality of the process of cessation stands quite apart from the fact of existence of such process Hwende v Speaker of National Assembly & Ors HH-341-21 and Hlalo v MDC-T & Ors HB-98-16.
c. Cessation should either be by withdrawal of membership through the act of the member, or via expulsion from the political party through the act of the political party concerned. For this reason, there must be objective evidence of such cessation.
Evidence of this kind, on the basis upon which constitutional processes are made to depend must when required be readily produced.
The political party should give written notice of the cessation of membership to the Speaker. There is thus need for there to be an act of the political party. This is both a factual and legal requirement. The notice is ineffectual unless and until it is the act of the political party concerned. In this regard there is a difference between the act of a member, real or imagined, of a political party on the one hand and that of a political party on the other hand.
e. The notice given by the political party must contain a declaration. There is a difference between notifying the Speaker of the cessation of membership on one hand and declaring that there has been such cessation, on the other. The need for a declaration speaks to the solemnity of the adopted position. The declaration must when evaluated meet the test of being a correct reflection of the situation on the ground- Prebble v Huata [2004] NZSC 29. A notification without a declaration is legally invalid.
1.6 Beyond setting out the law and with respect in less than the detail it merited, the court aquo otherwise did not become engaged with these requirements. That is the bedrock of its many misdirections. It simply did not use the requisite work tools, purposefully given it by the law.
1.7 It is also important to point out that a person or authority seeking the activation of these requirements must comply with them in full. A person cannot activate these requirements unless the person against whom they seek to activate them was:
a. A member of the political party concerned upon being elected to office.
b. Had as a matter of fact ceased to belong to the sponsoring political party
c. Such cessation is susceptible to objective proof, that is to say, can be proven either by a resignation or an expulsion. A notice highlighting this objective cessation has been given by the political party and not simply by someone claiming to act on behalf of the political party.
e. There is in the notice a declaration bearing on the solemnity of the cessation- Mutasa & Anor v Speaker of the National Assembly & Ors CCZ-18-19 and Khupe & Anor v Parliament of Zimbabwe & Ors CCZ-20-19.
1.8 Thus apart from applying the constitutional standard, the court aquo was required to also apply it in favour of the first respondent if his actions were to pass muster. The standard could not be applied in the air. The court aquo ought to have satisfied itself that first respondent, whoever he is, met the requirements that must be met by a person seeking to activate provisions of section 129(1)(k) before he assayed to do so.
Regrettably, the court aquo did not even become engage with this issue. It also ignored the document at record page 165 which was dispositive of the matter.
1.9 In relating to section 129(1)(k), the court must bear in mind that this is a provision that prima facie negates the will of the voter. The will of the voter will only be negated if it was expressed in favour of a scoundrel or a representative who subsequently becomes a scoundrel. Put differently, if people vote for a person who subsequently flies from their colours, the court will allow a political party triggering this provision to negate the will of the voter. If the member has not however, deserted the standard, the will of the voter becomes paramount and remains at all times and for all purposes sacrosanct. For that reason, the court in Madzimure said: "Section 129(1)(k) of the Constitution is a provision clearly intended to benefit a political party in order to protect it from members who abandon its cause. The provision is meant to avert floor-crossing. It is the political party concerned which is ultimately answerable to the people. The object of s 129(1), as read with s 129(1)(k), of the Constitution, like the anti-defection provisions of the Tenth Schedule to the Constitution of India, is to preserve and promote democracy. The vacancy is created in a seat of a Member of Parliament, who has ceased to belong to the political party of which he or she was a member when elected, to give the electorate the right to decide in a bye-election whether to give the mandate to represent them in Parliament to the political party concerned or to the same person who lost the seat if he or she stands as an independent candidate or as a candidate sponsored by another political party.
A court of law must therefore not be astute to find that the will of voters stands to be negated. It has an obligation towards the voter. This is because the voter is never party to these proceedings. A compelling case for such negation must therefore be made. If such negation cannot be justified on the basis of the Madzimure standard, then it may not be justified at all. Indeed, a court of law must look with suspicion to an allegationthat a member of parliament, has less than a month of being sworn in under the ticket of a certain political party, ceased to be a member of such political party. This court lives in the real world and indeed section 24(3) of the Civil Evidence Act (Chapter 8:01) enjoins it to take judicial notice of notorious matters known to all.
2.2 Key questions arose on the pleadings aquo. The court aquo did not allow those questions to confront it. In the result, it did not answer them. The result is that it did not exercise its function over and in respect of the dispute that was before it. When a court fails to resolve the dispute placed before it, its judgment must be vacated. When it comes to resolving disputes, the court must resolve the nub of such disputes. It is no use following rabbit holes and fastening attention onto some unedifying aspects of the dispute with the result that the essence is not addressed. It is for that reason that onappeal, this court will interfere not only with the direct dictates of a judgment but also with its effect- Williams & Anor v Msipha N.O & Ors SC-22-109.
2.3 The following key questions arise from the court record:
a. When did the appellants cease being members of the CCC party?
b. How did they cease being members of the CCC?
c. Is such cessation reflected in a document, perhaps a written resignation or expulsion such as would afford objective evidence of the fact?
d. Is there a statute on the basis upon which such membership ceased?
e. Where does that statute come from? How does it work? Is it that statute that made them members in the first place?
What is the effect of the constitution served upon second respondent by first respondent? Is it the one that regulates the question of the membership of the appellants?
g. If there is not statute governing the question of the cessation of the membership of the appellants, is there an unwritten process that is known to the CCC party by which the question of cessation of the membership of the appellants is governed?
h. Is the first respondent the CCC political party?
i. Does the CCC as a political party consider as a matter of fact, that the appellants' membership with it has ceased?
j. In the face of the letters written by Chamisa, how did the speaker conclude that he had a credible position from first respondent?
k. Faced with two letters that prima facie say different things, how did first respondent decide which letter he was going to act on?
l. In the face of the concession by first respondent at record page 165, was there still a dispute for the court to relate to?
2.4 The provision of answers to all these questions was indispensable to a proper discharge of function in the dispensation of simple justice as between men and men. Put differently, this matter could not be resolved unless and until these questions were answered. Whether the speaker was also required to answer these questions is irrelevant. At the point of challenge, the court must answer the questions.
Initially, Tshabangu said his mission was to "restore sanity" by addressing impositions of candidates in CCC, particularly Shona candidates in Bulawayo, a mainly Ndebele-speaking city.
However, Tshabangu went further than that recalling MPs everywhere without showing how they were imposed, raising questions about his underlying motives and political agenda.
Mpofu says Tshabangu had no locus standi and jurisdiction in the party where he claims to be an interim secretary-general to begin with, but also did not produced evidence to prove and support various allegations to justify his disruptive recalls.
He only succeed so far largely because the Speaker of Parliament and the High Court, in particular, misdirected themselves.
In his heads of argument in a Supreme Court appeal against a recent High Court judgement by Justice Munamato Mutevedzi dismissing 14 CCC MPs' challenge against the recalls, Mpofu asks relevant and fundamental questions which were ignored by the Speaker of Parliament and Mutevedzi in enforcing the recalls by what the legislators have described as an impostor.
Mpofu says Tshabangu admits he he has no political standing to do what he did as he made the recalls as an individual to "restore sanity" in the party and to remove Shona people who were elected MPs in Bulawayo, a mainly Ndebele-speaking city.
In the heads of argument filed on behalf of 14 CCC appellants' Supreme Court appeal, Mpofu argues that Tshabangu's case is fundamentally flawed and unsustainable.
He says the High Court failed to establish the facts, resolve the root cause of the dispute and uphold the rights of legislators, and ultimately the voice of the electorate.
"It must, if at all, take exceptional circumstances for people's political choices, constitutionally expressed through a process of adult universal suffrage, to be ignored by anyone, let alone the courts. Whilst it belongs to political actors to make and score political points against each other, a court of law must, when confronted with a matter, never lose the essence. Regrettably the court aquo completely lost its path and did not consider, that in matters electoral, the voice of the electorate is sacrosanct; that any perceived procedural inadequacies cannot trump the clearly expressed voice of the people, and that for a court of law, there is really no choice between sense and nonsense. A document which is completely dispositive of this matter and appears at record page 165 was not had regard to aquo. The appeal ought to succeed. The facts necessary to dispose of this matter resolve it without any analysis and are these:
"a. Appellants were in August of this year elected as members of the house of assembly on the Citizens Coalition for Change (CCC)1 political party ticket. They were sworn in as members of the House of Assembly sometime in September 2023.
b. The fourteen never resigned their membership with the CCC neither were they at any point in time expelled.
c. On the 4th of October 2023, a few days after they were sworn in, first respondent wrote to second respondent. In that letter he advised that:
i. He was the interim Secretary General of the CCC. He did not explain whether he had been voted into office at a congress or otherwise appointed and if so by whom.
ii. He had a copy of the constitution of the CCC which he shared with the second respondent.
He did not explain who had authored this constitution or whether it had been adopted by the CCC at any congress or some such gathering. Crucially, there was no reference to whether the membership of the appellants had been acquired and subsequently lost in terms of that constitution.
iii. First to fourteenth appellants had ceased being members of the CCC. He did not explain whether such cessation of membership was because of their deliberate acts or the acts of the political party the CCC.
iv. That second respondent was as a result asked to proceed in terms of the provisions of the Constitution of Zimbabwe, 2013. Such provisions not having been identified, it is curious why second respondent thought the letter required him to activate the recall provisions.
d. At round about the same time, second respondent also received correspondence from Advocate Nelson Chamisa (Chamisa) which advised him that on matters relating to the CCC, he only had to receive and act on correspondence from his office and that the correspondence he had received from first respondent did not reflect the position of the CCC party. Chamisa an officer of the High Court, is the leader of the CCC party, a fact accepted by the first respondent.
e. On the 6th of October 2023, second respondent wrote third respondent advising that there were now vacancies in appellants' constituencies. This triggered an urgent court application filed by the appellants whose dismissal has now led to this appeal.
f. On the 11th of October 2023, first respondent issued a statement (at record page 165) in terms of which he explained that:
i. The recall of appellants was his own act and not that of the CCC political party.
ii. That it had been necessitated by the fact that appellants had in his view, been corruptly elected during the internal CCC election process and that some of them were Shona people in Ndebele territory.
iii. That the fourteen had in fact not ceased being members of the CCC party.
iv. That Chamisa was the leader of the CCC political party.
1.3 It must take an unfortunate willing suspension of disbelief for anyone to claim, let alone conclude, that honourable members who took oaths of office representing a political party in September had, without being dismissed, renounced such oaths by the 4th of October. It would equally take a cruelty beyond comprehension for anyone to require the masses that queued up for 24 hours in August in order for them to cast their votes to queue up again in December for the same process. At a level that we must all accept; the law is meant to serve the people and meet their legitimate aspirations. The duty to state this is intrinsic in the authority granted the Supreme Court by the people of Zimbabwe. Much is given to this court; justifiably, from it, much is expected.
1.4 The law governing recalls is clear and straightforward. The court below set it out with consummate ease. Section 129(1)(k) of the constitution provides as follows:
"The seat of a Member of Parliament becomes vacant
(k) if the Member has ceased to belong to the political party which 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.
In Madzimure & Ors v Speaker of Parliament & Ors CCZ-8-19 the apex court considered that this provision contemplates and is triggered by, in paraphrase, the following:
a. The member should have been sponsored by the political party upon their entry to Parliament. This is indubitably true of all appellants.
b. The member should have ceased, as a matter of fact, to belong to the political party that sponsored their entry to Parliament.
Disagreements with that political party or members, real or imagined, do not scale the constitutional threshold. The legality of the process of cessation stands quite apart from the fact of existence of such process Hwende v Speaker of National Assembly & Ors HH-341-21 and Hlalo v MDC-T & Ors HB-98-16.
c. Cessation should either be by withdrawal of membership through the act of the member, or via expulsion from the political party through the act of the political party concerned. For this reason, there must be objective evidence of such cessation.
Evidence of this kind, on the basis upon which constitutional processes are made to depend must when required be readily produced.
The political party should give written notice of the cessation of membership to the Speaker. There is thus need for there to be an act of the political party. This is both a factual and legal requirement. The notice is ineffectual unless and until it is the act of the political party concerned. In this regard there is a difference between the act of a member, real or imagined, of a political party on the one hand and that of a political party on the other hand.
e. The notice given by the political party must contain a declaration. There is a difference between notifying the Speaker of the cessation of membership on one hand and declaring that there has been such cessation, on the other. The need for a declaration speaks to the solemnity of the adopted position. The declaration must when evaluated meet the test of being a correct reflection of the situation on the ground- Prebble v Huata [2004] NZSC 29. A notification without a declaration is legally invalid.
1.6 Beyond setting out the law and with respect in less than the detail it merited, the court aquo otherwise did not become engaged with these requirements. That is the bedrock of its many misdirections. It simply did not use the requisite work tools, purposefully given it by the law.
1.7 It is also important to point out that a person or authority seeking the activation of these requirements must comply with them in full. A person cannot activate these requirements unless the person against whom they seek to activate them was:
a. A member of the political party concerned upon being elected to office.
b. Had as a matter of fact ceased to belong to the sponsoring political party
c. Such cessation is susceptible to objective proof, that is to say, can be proven either by a resignation or an expulsion. A notice highlighting this objective cessation has been given by the political party and not simply by someone claiming to act on behalf of the political party.
e. There is in the notice a declaration bearing on the solemnity of the cessation- Mutasa & Anor v Speaker of the National Assembly & Ors CCZ-18-19 and Khupe & Anor v Parliament of Zimbabwe & Ors CCZ-20-19.
1.8 Thus apart from applying the constitutional standard, the court aquo was required to also apply it in favour of the first respondent if his actions were to pass muster. The standard could not be applied in the air. The court aquo ought to have satisfied itself that first respondent, whoever he is, met the requirements that must be met by a person seeking to activate provisions of section 129(1)(k) before he assayed to do so.
Regrettably, the court aquo did not even become engage with this issue. It also ignored the document at record page 165 which was dispositive of the matter.
1.9 In relating to section 129(1)(k), the court must bear in mind that this is a provision that prima facie negates the will of the voter. The will of the voter will only be negated if it was expressed in favour of a scoundrel or a representative who subsequently becomes a scoundrel. Put differently, if people vote for a person who subsequently flies from their colours, the court will allow a political party triggering this provision to negate the will of the voter. If the member has not however, deserted the standard, the will of the voter becomes paramount and remains at all times and for all purposes sacrosanct. For that reason, the court in Madzimure said: "Section 129(1)(k) of the Constitution is a provision clearly intended to benefit a political party in order to protect it from members who abandon its cause. The provision is meant to avert floor-crossing. It is the political party concerned which is ultimately answerable to the people. The object of s 129(1), as read with s 129(1)(k), of the Constitution, like the anti-defection provisions of the Tenth Schedule to the Constitution of India, is to preserve and promote democracy. The vacancy is created in a seat of a Member of Parliament, who has ceased to belong to the political party of which he or she was a member when elected, to give the electorate the right to decide in a bye-election whether to give the mandate to represent them in Parliament to the political party concerned or to the same person who lost the seat if he or she stands as an independent candidate or as a candidate sponsored by another political party.
A court of law must therefore not be astute to find that the will of voters stands to be negated. It has an obligation towards the voter. This is because the voter is never party to these proceedings. A compelling case for such negation must therefore be made. If such negation cannot be justified on the basis of the Madzimure standard, then it may not be justified at all. Indeed, a court of law must look with suspicion to an allegationthat a member of parliament, has less than a month of being sworn in under the ticket of a certain political party, ceased to be a member of such political party. This court lives in the real world and indeed section 24(3) of the Civil Evidence Act (Chapter 8:01) enjoins it to take judicial notice of notorious matters known to all.
2.2 Key questions arose on the pleadings aquo. The court aquo did not allow those questions to confront it. In the result, it did not answer them. The result is that it did not exercise its function over and in respect of the dispute that was before it. When a court fails to resolve the dispute placed before it, its judgment must be vacated. When it comes to resolving disputes, the court must resolve the nub of such disputes. It is no use following rabbit holes and fastening attention onto some unedifying aspects of the dispute with the result that the essence is not addressed. It is for that reason that onappeal, this court will interfere not only with the direct dictates of a judgment but also with its effect- Williams & Anor v Msipha N.O & Ors SC-22-109.
2.3 The following key questions arise from the court record:
a. When did the appellants cease being members of the CCC party?
b. How did they cease being members of the CCC?
c. Is such cessation reflected in a document, perhaps a written resignation or expulsion such as would afford objective evidence of the fact?
d. Is there a statute on the basis upon which such membership ceased?
e. Where does that statute come from? How does it work? Is it that statute that made them members in the first place?
What is the effect of the constitution served upon second respondent by first respondent? Is it the one that regulates the question of the membership of the appellants?
g. If there is not statute governing the question of the cessation of the membership of the appellants, is there an unwritten process that is known to the CCC party by which the question of cessation of the membership of the appellants is governed?
h. Is the first respondent the CCC political party?
i. Does the CCC as a political party consider as a matter of fact, that the appellants' membership with it has ceased?
j. In the face of the letters written by Chamisa, how did the speaker conclude that he had a credible position from first respondent?
k. Faced with two letters that prima facie say different things, how did first respondent decide which letter he was going to act on?
l. In the face of the concession by first respondent at record page 165, was there still a dispute for the court to relate to?
2.4 The provision of answers to all these questions was indispensable to a proper discharge of function in the dispensation of simple justice as between men and men. Put differently, this matter could not be resolved unless and until these questions were answered. Whether the speaker was also required to answer these questions is irrelevant. At the point of challenge, the court must answer the questions.
Source - newshawks
