Fourteen Citizens Coalition for Change (CCC) MPs and nine Senators have failed to overturn their expulsion from parliament after they were recalled by a disillusioned party member who claimed to have the authority.
Justice Munamato Mutevedzi, in a judgement released on Saturday, said the recalled lawmakers had failed to provide the party constitution “or any document which showed that Sengezo Tshabangu could possibly not have held the position he claimed he held.”
“It was simply their word that he wasn’t (interim secretary general). That is not enough… The onus to prove entitlement to the declaratory orders sought was on the applicants. They did not even begin to discharge it. They have not established their case on a balance of probabilities as required by law and are therefore not entitled to the declaratur they seek,” Justice Munamato ruled in a 28-page judgement which followed a hearing on November 2.
The judge said the lawmakers had made a “mortal error” by failing to cite the party, CCC, as a respondent in their application.
“They claim to be members of the party. They are therefore simply children therein. None of them has an administrative position from which to contest the claims made by Tshabangu. None of them can speak for and on behalf of the party. Their parent is the party itself. It is the one which knows who is a member and who is not. It ought to have been in court to speak about these issues. It was required to support the lawmakers’ claims that it is not the party which initiated the termination of their tenures in parliament,” the judge said.
In the case of Majaya and Others, said Justice Mutevedzi, the court expressed surprise that CCC leader Nelson Chamisa and the party he led then, MDC Alliance, also did not appear in court.
Mutevedzi said that case “did not make Chamisa any wiser.”
“I am not sure why the party leader is averse to appearing in court,” the judge added. “Just like it is difficult if not impossible for a man to impugn the paternity of his brother without directly involving the parents, it is naïve for a member of a political party to approach a court seeking to prove that another is a non-member of the same party without the involvement of the political party itself.
“The applicants before me all share the mortification of failing to appreciate the elementary notion that they are individuals who are distinct from their political party. They cannot conflate the rights acquired through their individual membership in the party with the responsibilities which are reposed in the political party itself.”
The CCC lawmakers can appeal to the Supreme Court but face a race against time as President Emmerson Mnangagwa has gazetted by-elections to fill the vacancies on December 9. The nomination courts will sit to register candidates on November 7.
In a draft order accompanying their application, the CCC lawmakers wanted the court to declare that their recalls were “illegal, null and void and of no force and effect.” They also asked the judge to declare that they are “still Members of Parliament duly elected as such on a CCC political party ticket” and wanted Tshabangu “interdicted and restrained from effecting any further recalls.”
In a statement shortly after the ruling, the CCC said it was still studying the judgement, adding: “We want to reiterate that Tshabangu is not a member of CCC, and the party CCC which is led by President Nelson Chamisa has not initiated any recall of a Member of Parliament or Senate.”