A New Vacancy in the Zimbabwe Parliament
Alex T. Magaisa
I have read that Dr Munyaradzi Kereke, National Assembly independent MP for Bikita West has been re-admitted into Zanu PF. This raises an important constitutional issue, which this brief note addresses.
In terms of the Constitution, when an MP who was elected as an independent candidate becomes a member of a political party, his seat becomes vacant. This is in accordance with section 129(1)(l.) of the Constitution, which provides that:
“The seat of a Member of Parliament becomes vacant –
(l) if the Member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party”.
Therefore, if a person campaigned for election and won a seat as an independent, he must remain as such or give up his seat when he joins a political party.
In the case of Kereke, it must be established that he ran for the Bikita West seat as an independent and that he was not a member of Zanu PF. It appears that Kereke ran as an independent when his erstwhile party, Zanu PF, chose another person, Elias Musakwa as its candidate. Reports at the time from Zanu PF was that Kereke had expelled himself by running for Parliament contrary to his party’s orders. Kereke ran as an independent and trounced Musakwa.
He was not alone in taking this route. His counterpart in Mashonaland East, veteran lawyer Jonathan Samukange also ran as an independent, contrary to his party’s orders and also defeated the Zanu PF candidate. Indeed, throughout Parliament’s tenure so far, Kereke and Samukange have been referred to as independent MPs.
The fact that Kereke has now been reported as having been “readmitted” into Zanu PF might be read as an indication that he has now become a member of a political party when at the time of the election he was not and therefore this triggers the operation of s. 129(1)(e.) of the Constitution.
This effectively means that a vacancy has arisen by operation of law. The Speaker of the National Assembly is therefore required to declare that the seat has become vacant. Section 39(1) of the Electoral Act requires the Speaker to notify the Zimbabwe Electoral Commission (ZEC) and the President that a vacancy has arisen.
Since a vacancy has arisen, it needs to be filled in terms of s. 158(3) of the Constitution. The President has the power to call elections in terms of s. 110(2)(e.) of the Constitution and also provisions of the Electoral Act.
Looking at the bigger picture, this adds to the number of by-elections that must now be held within the next three months. It will not exactly be a mini-general election but given the spread across the country – Mt Darwin, Bikita and Chirumanzu – it will yet again, raise the political temperature which often accompanies elections in Zimbabwe. If they want, they could concede to the MDC-T’s demand for the removal of MPs who have crossed over with the MDC Renewal Team. In that case, it will resemble a mini-general election given the numbers and spread of MPs affected.
Politically, therefore, the new vacancies present a challenge over their position in elections. Will they contest or will Zanu PF have a free-ride given that all three seats were effectively in Zanu PF’s hands? That is a question that needs to be addressed.
Meanwhile, it would be interesting to see how they will manoeuvre in this respect but in terms of s. 129(1)(l.) a vacancy appears to have arisen in Bikita West and it now needs to be filled.
wamagaisa@yahoo.co.uk
Read more on this blog: www.newzimbabweconstitution.wordpress.com
Dr Magaisa, you appear to be ignorant of the fact that ZANU PF had two candidates in Bikita and Kereke was one while Musakwa was the other. Although frantic efforts were made to have Zec reverse Kereke’s registration as a ZANU PF candidate, Zec declined to do so on account of the law. After Kereke won as a ZANU PF candidate, the party tried to have him expelled from parliament upon which he launched a constitutional court challenge against this move. The speaker of parliament had moved to expell Kereke from parliament in response to the letter from his party. Both ZANU PF and the speaker were to later seek a settlement which allowed Kereke to remain an elected member of parliament for ZANU PF even though the party had dismissed him as a member. So you legal argument is faulty in that respect.
Thank you for your comment, Dumisani.
Your comment has given me reason to write a further piece to explain what is wrong about all this and the lack of honesty in politics. I was aware, when I wrote this piece of the problems around Kereke’s election. I have followed this case very closely since before the election and it is important to set out the issues more clearly.
When Kereke challenged Zanu PF’s attempt to get him expelled from Parliament, he did so by arguing that he had not contested as a Zanu PF candidate but as an independent.
This is the evidence that he submitted to court, under oath. How does he now turn back and say in fact I contested as a Zanu PF candidate without admitting that he lied to court and therefore exposing himself to the charge of perjury? Perjury is a serious offence, for which is convicted, he could end up being barred from Parliament for life.
So no, I am aware of the history of this case, including the fact that Kereke has previously denied under oath that he contested as a Zanu PF candidate.
Please the following link, http://www.herald.co.zw/kereke-takes-zanu-pf-to-constitutional-court/ and I quote in part,
“In his papers, Dr Kereke said the section did not apply to his situation because he ceased to be a member of Zanu-PF on July 10 as evidenced by a letter written by Cde Mutasa.
“Thus whilst my nomination had been on a Zanu-PF ticket, the fact was, and remains, that I was not a member of Zanu-PF on the 31st July 2013 when I was elected as House of Assembly Member for Bikita West.
“The party did not give me any sponsorship. I financed my own campaign whilst the party sponsored one Elias Musakwa, who got a new motor vehicle, regalia and other campaign material.
“I did not get similar support from the party given that I had been expelled. The moment the party advised me to stop using party regalia, I complied and discontinued the use thereof.”
Dr Kereke argued that Zanu-PF recognised the “explicit fact” that he ceased to be a member of that party prior to July 31 2013 and suggested that he was an independent candidate, as widely publicised in the media.
The letter written to the Speaker reads as follows: “I write, Honourable Speaker, to advise that Honourable Dr Munyaradzi Kereke who stood as a member of the House of Assembly for Bikita West Constituency, had ceased to be a member of Zanu-PF on July 10 2013.”
Dr Kereke said: “It is clear that by July 31 2013, the second respondent (Zanu-PF) did not consider me to be its sponsored candidate. The electorate knew that I was not a Zanu-PF candidate”.
These are his words as presented under oath to a court of law. Was he therefore lying to a court of law when he said this?
You’ve convinced me. Let’s see how it turns out. The problem is that the hansard (as far as I remember) still cites Kereke as a Zanu Pf legislator, despite him clearly denying that he was still one. The speaker, once he had acknowledged Kereke was an Independent after the court dispute, and reinstated him as an MP, should have done something to rectify this. Now he has a potential legal mine field to deal with.