Big Saturday Read: Critical analysis of the law of parliamentary recall
Alex T. Magaisa
The question of how a Member of Parliament (MP) loses his or her parliamentary seat is a contentious one. How, why and when an MP loses their seat is governed by the Constitution of Zimbabwe. Death is the most obvious circumstance by which a seat is lost. The dissolution of Parliament is another. An MP also loses her seat when she is disqualified as a voter. A vacancy arises when an MP is certified to be mentally disordered or intellectually handicapped. There are other grounds all of which are outlined in section 129 of the Constitution.
One of these grounds has, so far, proved to be highly controversial in its application. This is when a political party declares that its MP has ceased to belong to the party and must be expelled from Parliament. This is commonly referred to in political vocabulary as the power of recall, describing as it does, when a political party recalls its representative from Parliament. This recall provision is found in section 129(1)(k) of the Constitution.
Politically it is both a weapon and a shield - a weapon because a party can use it against rebels; a shield because a party can use it to defend itself against infiltration. But in a compromised political environment, it is also a double-edged sword, especially where political referees are partial. Political parties have to realise that they need protection from their potential abuse, just as individual MPs need similar protection.
Purpose of BSR
The recall provision has been used by both of the major political parties represented in Parliament during the past 7 years since the new Constitution was enacted. It has also generated litigation which has reached the highest court in the country, the Constitutional Court. In light of current ructions concerning the opposition, the issue of recall is, once again, exercising several minds both within and outside the concerned parties. This is another area where there is a violent collision between law and politics.
The purpose of this BSR is to examine the law on the recall provision. For contextual purposes, it begins with an account of the rationale behind the provision. It then examines three decisions of the Constitutional Court concerning the use of the recall provision, explaining the judicial interpretation of the provision and highlighting the dark spots that still need illumination, particularly concerning the role of the Speaker of the National Assembly and the President of the Senate.
These three cases are Madzimure and others v Speaker of Parliament and others (2015); Mutasa and another v Speaker of Parliament and others (2015) and Khupe and another v Speaker of Parliament and others (2019). For convenience, I shall refer to them as the Madzimure, Mutasa and Khupe cases respectively. The third case is particularly interesting in light of current circumstances affecting the opposition.
Before I turn to the case law, it is useful to showcase what the recall provision says.
The recall provision
The exact wording of the recall provision is as follows:
“129 Tenure of seat of Member of Parliament
(1) The seat of a Member of Parliament becomes vacant ...
(k) if the Member has ceased to belong to the political party of which he 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.”
There are two critical elements in this provision:
The MP must have ceased to belong to the political party of which he was a member when he was elected to Parliament.
The political party must send a written notice to the Speaker or the President of the Senate declaring that the MP has ceased to belong to it.
However, the apparent simplicity of this provision has proved to be highly deceptive.
For example, what does it mean that a member has ceased to belong to the political party? What is the identity of the political party, especially where there are rival claims? What if the member disputes that he has ceased to belong to the political party? How does the Speaker or the President of the Senate determine that the written notice is from the legitimate political party? What is the form of the written notice? What is the role of the Speaker and the President of the Senate in this whole process, if any? Is that role substantive or it’s merely procedural?
It is clear from this that the seemingly simple words generate several questions.
Lack of legislative guidance
The Constitution does not contain finer details of how the provisions of section 129 are applied. The roles of the Speaker and the President of the Senate are not specified. This lack of detail is not a fault in the Constitution because as a general rule, constitutions do not deal with matters of detail. This is often left to primary and secondary legislation. Unfortunately, there is no legislation to provide clarity on these questions. This is odd, as one would expect MPs to pay more attention and take an interest in a provision whose effect poses an existential threat to their political careers.
In the absence of guiding legislation, the interpretation of the recall provision has been left to judges in the courts of law. The Constitutional Court has been called upon in the Madzimure and Mutasa cases, to interpret the recall provision.
Experience so far has shown that the Speaker and the President of the Senate find themselves in a difficult spot where without legislative guidance they must balance the interests of the political party to safeguard its space and the interests of the MP against the avoid abuse of the power of recall. A review of the cases suggests that the Speaker and the President of the Senate, as well as the courts, have taken a position that tilts in favour of political parties. Affected MPs are always on the losing end. This is probably not surprising given the rationale of the recall provision to which I now turn.
The rationale of the recall provision
The purpose of the recall provision is to prevent defections or floor-crossing in Parliament. In a multi-party democracy, political parties are the major organisational unit of representation. While there is room for independents, the political party is the most critical unit of organised politics. It brings like-minded individuals together, enabling them to draw synergies from working as a single unit. Also, the chances of forming a government are enhanced when people work together in political parties. Political parties are an important feature of modern-day politics but their history is more recent in the affairs of humankind.
However, while it has several benefits, the political party unit comes at some cost to the individual. It means the individual must be prepared to compromise and accommodate different views of fellow members of the organisation in return for their willingness to also compromise and accommodate him. The fact that a member has a different view from the rest of the political party on a single issue does not mean he is no longer serving his purpose. Indeed, as a democratic unit, a political party must acknowledge, accept and accommodate differences.
Nevertheless, there are situations where coexistence with a political party becomes untenable. If an individual regularly and consistently takes positions that are contrary to the political party’s positions to the point of acting like a member of the opposite party, it might legitimately be said that he is no longer serving a purpose. Indeed, the best course of action for such a member would be to resign from the party and Parliament, as a matter of principle. The alternative would be for the party to expel the member from its membership. When that happens, the next course of action would be to recall the member from Parliament. This would create a vacancy and trigger a by-election to fill the seat.
Political party interests
The recall provision was designed to protect the interests of political parties in a multi-party democracy. As the Court stated in the Madzimure case, “a Member of Parliament elected on a political party ticket has two obligations. He or she has an obligation to the political party. He or she also has an obligation to the electors. The obligation to the political party is to support it for the normal duration of Parliament.”
There is a risk of members being bribed by other parties and abandoning the ship that brought them to Parliament. In a multi-party democracy, it is often the case that people vote for the party, not necessarily for the individual MP. The Court put it quite succinctly in the Madzimure case and the entire paragraph is worth quoting:
“The obligation [of MPs] to the electors stems from the fact that, in modern times, the elector, speaking broadly, casts his or her vote for a particular individual, not because of his or her merits, but because he or she is put forward by the party for which the elector desires to vote. The successful candidate is almost invariably returned to Parliament, not because of his or her judgment and capacity, but because of his or her political party label. His or her personality and his or her capacity are alike unknown to the great mass of his or her constituency. His or her electioneering is far less important than the impression which his or her political party creates in the minds of the electors. They vote for or against the party to which he or she belongs.”
It might be said without exaggeration that the practice of voting along party lines as opposed to individual merit has brought high levels of mediocrity to our Parliament. Below average candidates have prevailed over solid candidates on no account apart from the fact that they were on a stronger party ticket. That’s a debate for another day. What is critical for present purposes is that if a person owes his seat to the political party that he represented rather than to individual merit, surely it is only fair that the party should have the power to recall him if he has defected or deviated from its ways.
Critics argue that the power of recall is also problematic as it makes the MP answerable and beholden to the political party and not to the people they represent in the constituency that elected him. This is a fair point, made even more pertinent by the parliamentary whip system, an institution which means party representatives in Parliament are forced to vote for the party’s position regardless of their personal views and convictions on an issue.
One otherwise reasonable proposition made during the constitution-making process which would have allowed ordinary members of the constituency to initiate a recall was rejected. The fear was that constituents from a rival party disgruntled by losing an election would abuse this avenue for political purposes, leaving constituencies across the country in perpetual election mode.
However, as already stated, the parliamentary whip system is the price that one pays when they join a political party. Otherwise, they have an option to work as independents. Our electoral and parliamentary system has always accommodated independents and although it is very difficult to win in a field that is dominated by political parties, those who have won have had some success in their role as independents. Veteran politician Margaret Dongo immediately comes to mind in the 1990s and currently, Temba Mliswa, probably the freest MP, has held his own as an independent MP. There is no one to whip him into line except self-interest and his constituents.
This is the rationale for the recall provisions. It’s a feature of the multi-party democratic system and it is by design intended to protect the interests of the political party. However, as already stated, the application of the recall provision has generated many questions and controversy. Let us now examine how the courts have dealt with the situation. I will use the two cases already referred to, one involving the MDC and another involving ZANU PF.
This matter arose from a dispute between members of the MDC-T following the election in 2013. The MDC-T had written to the Speaker and President of the Senate declaring that Madzimure and other members who had been elected on its ticket had ceased to belong to it.
The Speaker and the President of the Senate had announced that the seats had become vacant on that account. Madzimure and others were aggrieved by this declaration and approached the Constitutional Court challenging the actions of the Speaker and the President of the Senate because their conduct violated their constitutional rights.
In the second case, Didymus Mutasa and Temba Mliswa had both been elected under the ZANU PF ticket in 2013. They were expelled from the party in 2015. When ZANU PF sent a written notice to the Speaker under section 129(1)(k) of the Constitution, activating the recall provision, Mutasa wrote to the Speaker advising him that he was challenging this notice.
The Speaker wrote in response, stating that allegations of unfairness in their expulsion should be raised with the political party. He argued that he was under a duty to act upon receiving the notice from a political party that an MP had ceased to be a member of the party of which he was a member when elected to Parliament. This was an almost robotic response in the face of an apparent dispute.
The third case, concerning Thokozani Khupe is of particular interest given recent events. In April 2018, at the height of leadership wrangles in the MDC-T, she was recalled from Parliament where she was a proportional representation MP for Bulawayo Metropolitan Province. Like Mutasa before, she wrote to the Speaker challenging the written notice from the MDC-T which had been sent under the recall provision. Nevertheless, the Speaker proceeded to announce that her seat had become vacant.
Khupe approached the Constitutional Court, Unlike Mutasa and Madzimure before her who had challenged the Speaker for violation of constitutional rights, her litigation team led by Professor Madhuku rightly decided to adopt a new strategy. Madhuku had represented Mutasa so he knew that a new approach was necessary. The new strategy was to ground the challenge not on a violation of fundamental rights but on the basis that Parliament had breached its duty to uphold the Constitution by failing to protect the tenure of Khupe’s seat.
Khupe argued that her letter to the Speaker putting him on notice concerning the disputes in the party should have cautioned him not to proceed based on the written notice from the party. Since the Speaker had disregarded her letter and had acted on the strength of the party’s written notice, he had been irrational and therefore failed to fulfil Parliament’s constitutional obligation. It was, in my opinion, a sound argument.
Why Khupe's challenge was dismissed
Nevertheless, the argument yielded nothing and the reason for it will interest followers of the saga surrounding the MDC. It was that according to the Court, the matter had become moot. This was because Khupe wanted a declaration that she was still an MP but the Parliament in which she was a member had since been dissolved after the end of its tenure in July 2018. The Court stated:
“The dissolution of Parliament rendered it legally meaningless for the Court to grant the first applicant [Khupe] the specific relief she sought by way of the court application. It also became a futile exercise to embark on the consideration and determination of the question whether or not Parliament had a constitutional obligation under s 119(1), as read with s 129(1)(k), of the Constitution of the nature and scope contended for by the first applicant.”
The Court also made interesting observations on the issue of mootness: “A matter is not moot only at the commencement of proceedings. It may be considered moot at the time the decision on the matter is to be made.” It's a pity that the Court declined the invitation to make an authoritaive statement on the issue of interpretation of the recall provision in light of the new argument that was advanced. I suspect since it remains an open field and with more disputes looming, the Court will once again be forced to deal with the issue it avoided.
A slight but crucial detour
Here I must make an unavoidable detour for some observations. Readers will recall the BSR in which I critically examined the Supreme Court judgment in the Mashavira case which pertained to the leadership dispute in the MDC-T. It is interesting to observe that the Supreme Court, in that case, did not place reliance on this decision of its superior court on the issue of mootness.
In this case, the Constitutional Court said Khupe’s challenge had become moot because the tenure of Parliament had already expired. There was no point ordering her reinstatement to a Parliament that had already dissolved. The Supreme Court in the Mashavira case knew that the tenure of the MDC Executive of the 2014 Congress had ended in October 2019 and by similar reasoning, any dispute over it had been rendered moot. Despite a finding that the matter was moot, the Supreme Court still went on to make an order reinstating Khupe to an executive whose term had since expired and ordering the convening of a Congress by persons whose terms have expired and structures whose terms have also ended.
The sheer contrast in approach between the Constitutional Court and its junior court is astounding. However, what makes it more surprising is that all three judges in the Supreme Court (Justices Patel, Garwe and Guvava) were also part of the Constitutional Court panel of judges in the Khupe case. They all agreed that the matter had become moot because the tenure of Parliament had ended. But when they sat in the Supreme Court in the Mashavira case they all ignored the fact that the tenure of the MDC executive had ended. It is so irrational it’s impossible to reconcile with the fact that this is justice delivery at the highest level of our judicial system.
The detour ends here, but you can see why it had to be made.
Violation of Human Rights?
In the Madzimure and Mutasa cases, the affected MPs challenged the Speaker and President of the Senate in terms of section 85(1)(a) of the Constitution arguing that their fundamental rights and freedoms had been violated.
In both cases, the Court ruled in favour of the Speaker and the President of the Senate, dismissing the former MPs’ applications. This is not the article to critique the Court's view on the human rights argument for it would make this BSR longer but suffice to say it contains significant flaws. Several important points can be deciphered from the judgments.
When does a vacancy arise?
In both cases, the Court made it clear that a vacancy based on recall occurs once the political party of which an MP was a member at the time of the election has sent a written notice to the Speaker or President of the Senate. The declaration of a vacancy by the Speaker or the President of the Senate is merely procedural but it does not create the vacancy. The vacancy is created by operation of law the moment two conditions are fulfilled:
first, the cessation of an MP’s membership of the party under which he was elected and second, the receipt of a written notice by the Speaker or the President of the Senate.
In the Madzimure case, the Court found that the affected MPs’ membership had ceased when they voluntarily withdrew from the MDC-T to form a new entity. “The applicants were elected on MDC-T tickets. They had differences with other members of the MDC-T concerning the style of leadership of the Party. They convened a meeting at the Mandel Training Centre, discussed their grievances and resolved to leave the MDC-T … they left the MDC-T of their own volition. Just as they had exercised their rights in freely choosing to join the MDC-T, they freely and voluntarily withdrew their memberships from it”. The finding of voluntary withdrawal by the MPs made it easy for the Speaker and the Court.
In the Mutasa case, the Court found that the two members had been expelled. The Court used the literal rule of interpretation, pointing out that the ordinary meaning of the recall provision admitted to no other considerations other than the fulfilment of the two elements stated above - cessation of membership and communication to Parliament.
What is the role of the Speaker and the President of the Senate?
In both cases, the role of the Speaker and the President of the Senate was the key point of contention and there was a divergence of opinion concerning what the affected MPs thought and the view of the parliamentary officials. The Court in both instances took the view of Parliament.
The challengers argued that the Speaker and the President of the Senate had violated their fundamental rights by announcing vacancies in their seats without giving them a chance to be heard. Both challengers argued that the Speaker and the President of the Senate had a duty to make inquiries concerning the cessation of their party membership before making the announcements which sealed their fate. They were essentially arguing that the Speaker and the President of the Senate had a substantive role in the recall provision.
In both cases, the Court rejected the view that the Speaker and the President of the Senate had such a substantive role. In the Madzimure case, the Court stated: “The law requires the Speaker and the President of the Senate only to accept that a person has ceased to be a member of a political party as communicated by the written notice. They have no power to enquire into the legality of the processes which lead to the eventuality of the cessation by the Member of Parliament of membership of the political party concerned.”
In the Mutasa case, the Court reiterated the same point in the following terms:
“The provisions of s 129(1)(k) of the Constitution do not clothe the Speaker or the President of the Senate with power to inquire into the legality or otherwise of the fact of cessation of membership of the political party concerned by the Member of Parliament …”
This makes it clear that the Speaker and the President of the Senate’s role are merely procedural. Their role is to simply accept the written notice and to communicate the existence of a vacancy that would have occurred by operation of law. How accurate though is this representation of the role of these parliamentary officials? It certainly sounds almost robotic and the role almost peripheral, when in fact it is a fundamental cog in the process.
Correct, but needs a qualification
While the Court was right that, going by the literal rule of interpretation, the vacancy occurs by operation of law, this should have been qualified. The announcement of the vacancy is no different from the announcement of the death of an MP. It is not the announcement of death that creates the vacancy; the announcement merely communicates it. If an MP is declared insolvent, from that moment, his seat becomes vacant. Likewise, when an MP becomes a Vice President his seat automatically becomes vacant. When Mrs Joice Mujuru was appointed Vice President in 2013, her seat became vacant by operation of law even though the entire system continued, oblivious of this legal fact.
The recall provision operates in the same way - the cessation of membership and the communication of the fact to Parliament creates the vacancy. However, the qualification is that this operates on the presumption that both the cessation of membership and the communication thereof to parliament are lawful. The Constitution does not authorise or promote illegality. Therefore in the case of insolvency, there would be a presumption that it was lawful. In the case of death, there would be proof of death. Where the MP is disqualified as a voter, that would have been after exhaustion of the legal processes. It follows that where an MP has ceased to be a member of a political party that would have been lawful and the party that communicates the written notice would have the right to do so and the person who communicates the notice would have the lawful authority to do so.
Speaker must acknowledge challenges
Since it is a presumption of lawfulness, it follows that it can be challenged. The existence of a challenge cannot be discounted from the recall provision. For that reason, it is arguable that the vacancy that arises by operation of law is conditional and where the Speaker or the President of the Senate becomes aware of a challenge, they ought, in the interests of fairness, to defer announcement until they are satisfied that the challenge is resolved. This approach would not be inconsistent with the Madzimure and Mutasa cases because in both, despite denying a substantive role, the Speaker did make a substantive decision on the claims by rival parties. Regardless of the merits or otherwise of the decision, the fact is that the Speaker had to make a choice and this was more than just a procedural step.
The point I am advancing is similar to what Professor Madhuku was arguing in the Khupe case where she challenged her recall. She had written to the Speaker putting him on notice that there was a dispute. The Speaker had, as in the Mutasa and Madimure cases also made a substantive choice even though he argues and the court supports the view that his role is merely procedural. What makes the Khupe case remarkable is that she can raise the recent Supreme Court decision as vindication that she was right to challenge the recall. Yet the Speaker and the Court dismissed her claims when it mattered the most. This set of cases shows in stark detail why it is important for the Speaker to have more regard for MPs who are affected by recall instead of behaving like a robot which simply accepts a written notice and makes an announcement of a vacancy.
Contrary to what the Constitutional Court refers to as an authoritative interpretation of the recall provision, the legal position is anything but clear and convincing as the legal circumstances around Khupe reveal. It’s important to acknowledge that the role of the Speaker is more than that of a receiver of notice and an announcer. In all cases, the Speaker must satisfy himself that the event has occurred, before making the announcement. Even where an MP has died, he would need legal proof of death before making an announcement.
It gets more complicated where two rival parties make competing claims for MPs in Parliament. If the Speaker has at his desk two written notices from two rival parties over the same MPs, he would have to be sure which of the two is the correct party with entitlement to activate the recall provision. In such a scenario, his role will be more than procedural. It might be argued, by way of suggestion, that in such a scenario that the Speaker would have at least two choices: to conduct an enquiry to establish the party with the rightful claim before making the announcement or to simply avoid the role altogether and ask the parties to resolve their internal dispute citing the argument that he is not satisfied that the element of cessation is fulfilled. The latter might be the easier option given the vehement rejection by the Court that the Speaker has a quasi-judicial role.
What do we learn from the cases?
First, the vacancy occurs by operation of law when two things happen: first, an MP ceases to be a member of the political party that he represented at the election and second when a written notice of that cessation of membership is received by Parliament.
Second, although this is not clear from the judgments, the occurrence of the vacancy by operation of law is based on the presumption of lawfulness; in other words, that the cessation of membership and its communication were lawfully done. For example, the party which issues the notice of recall must be the proper party that is lawfully entitled to do so. Faced with a notice or rival notices, the Speaker and the President of the Senate must make a decision, for example, is it the MDC Alliance or the MDC-T?
Third, if the second point is correct, it follows that where there are a clear dispute and rivals claims, and the Speaker or the President of the Senate cannot be sure that the cessation of membership and the communication of the written notice is lawful, and because they do not have a duty to conduct enquiries, they ought to defer announcement until that internal dispute is resolved.
Fourth, while the Court has insisted that the role of the Speaker and the President of the Senate are merely procedural, this does not seem to accord with the actual practice and the conduct of the Speaker and the President of the Senate in these cases. They have had to make choices in the face of rival claims and they will likely be called upon to do so in future.
Fifth, to avoid putting the Speaker and the President of the Senate in a difficult spot, there is a need for legislative guidance on the application of these provisions. The Court has tried but there remain questions which need answers.
Sixth, while parties desire to protect their political space is understandable, they should use the recall provisions sparingly and only when it's unavoidable. They trigger by-elections and they are not only expensive but also keep the country in election mode.
Finally, the stark difference in how the Constitutional Court disposed of the Khupe challenge against Parliament on grounds of mootness because parliamentary tenure had expired, while the Supreme Court, with the same judges, made an order in a moot case in the Mashavira case where tenure had expired is yet another grim illustration of the underwhelming quality of justice delivery at the very highest levels.