Gomba, six councillors lose recall challenge

Former Harare Mayor Herbert Gomba and six other councillors have lost their bid for reinstatement to the city council after the High Court threw out their petition to invalidate their recall by the MDC-T

The MDC-T recalled Gomba and councillors Lovemore Makuwerere, Hammy Madzingira, Costa Mande, Kudzai Kadzombe, Happymore Gotora and Gilbert Hadebe, accusing them of being "errant" officials after they failed to respect the party's leadership and move away from the MDC-Alliance when the leadership wrangle in the MDC-T, the largest component then of the MDC-A was resolved by the courts in favour of Dr Thokozani Khupe.

But the seven claimed that then MDC-T leader had no authority to recall them in terms of the national Constitution and that they could only be removed from office through an inquiry set by an independent tribunal established through an Act of Parliament  and only on grounds set out in the provisions of the Constitution.

The High Court found that a political party could declare the seats of councillors vacant if the councillor was no longer a party member, which was the position in this case, although all other dismissals from office did have to go through the formal inquiry.

 The seven argued that Section 129(1)(k) of the Constitution, which was used to expel them on the grounds that they had left the party that had nominated them, did not apply to them. But the MDC-T, Local Government and Public Works Minister, Harare City and the Zimbabwe Electoral Commission listed as respondents argued that the provisions of Section 129 (1)(k) as read with Section 278 of the Constitution did apply to the councillors.

For the court to decide whether or not the councillors had proved a prima facie case for reinstatement, Justice Tawanda Chitapi had to consider whether the councillors' argument that Section 129(1)(k) of the Constitution was no applicable to them but only to Members of Parliament was prima facie sound.

 The judge was unable to agree with the seven saying the law was very clear as the cited provisions provides that in the case of cessation of membership of a political party on whose ticket, mayors, chairpersons and councillors were elected, they lost their seats in the same manner that MPs lose their seats for the same circumstances.

In this case, the judge, found that the grounds for the removal  of the applicants from office were limited to only two. The first instance of removal from office being by reason of seat becoming vacant by operation of law is where the mayor, councillor or chairperson ceases to be a member of the political party that sponsored the such person's election to the position concerned.

 The other instance being when the mayor, chairperson or councillor may lose their seats is in respect where an Act of Parliament should provide for the set-up of an independent tribunal to enquire into the removal from office of the mayor, chairperson or councillor on the grounds enumerated in Section 278 (2) of the Constitution.

 In this case, Justice Chitapi said the correct interpretation of the Section 278 puts paid to the seven's arguments argument as they fell under the provision that they ceased to be members of the political party that nominated them, rather than the provision that needed a tribunal.

The judge said in his judgment the MDC-T and the others being sued followed proper procedures which led to the sacking of the councillors.

He said the paper trail could not be faulted as it followed the provisions of the applicable law.

 "Consequent on the view that I have taken that the applicants have misinterpreted the provisions of Section 278 of the Constitution as read with Section 129(1)(k), the applicants have failed to establish a prima facie case to the interim relief claimed," he said.

"In any event, the relief they seek in the interim amounts to asking the court to interfere with the exercise of legislated power reposed in the ZEC without legal justification.

"The applicants' case in not  one  which  has justifiable legal ground to constitute a case which if proceeded  with trial  would likely succeed," said Justice Chitapi adding,  the applicants case was devoid of merit and dismissed it..

MDC-T's grounds for recall were that the MDC-Alliance list, on which the seven were elected, was a composite of the allocated nominations of the eight parties that went into the electoral alliance with the deal being that the constituent parties would retain their identity and control.