Provisions relating to recalling of MPs

THE Constitution of Zimbabwe provides for ways in which a Member of Parliament or Senate ceases to be a MP or Senator.

The ways are prescribed under Section 129 of the Constitution.

Section 129(1)(k) of the Constitution provides for one of the circumstances prescribed. Section 129(1)(k) contains what is now known as the recall provision.

Section 129(1)(k) of the Constitution specifies one of the circumstances in which the tenure of a Member of Parliament comes to an end and the seat becomes vacant.

The provisions of s 129(1)(k) of the Constitution may be summarised as being that –

(a) The Member of Parliament must have been a member of a political party when he or she was elected to Parliament;

(b) The membership of the Member of Parliament in the political party should have ceased either by voluntary withdrawal of membership or by expulsion from the political party concerned; and

(c) The political party concerned should have given a declaration that the member has ceased to belong to it in a written notice to the Speaker of Parliament or the President of the Senate.

The exact wording of the recall provision is as follows:

“The seat of a Member of Parliament becomes vacant 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.”

The recall provision was designed to protect the interests of political parties from the member who continues to be in Parliament while no longer representing its interest.

It is a provision to stop floor crossing.

The court stated as follows in Madzimure &Ors v Senate President &Ors and Holland &Ors v Senate President &Ors (CCZ 8 of 2019:

“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.”

It is necessary to quote the entire paragraph in the Madzimure case:

“The obligation (of Members of Parliament) to the electors stem 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 that 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.” A vacancy based recall occurs when the political party of which a Member of Parliament was a member at the time of his or her election has sent a written notice with a declaration to the Speaker or President of the Senate, notifying of the cessation of membership.

The Speaker or President of the Senate does not create the vacancy.

He or she merely announces the existence of a vacancy once he or she receives the declaration of cessation of membership of the Member of Parliament in the political party on whose ticket he or she was elected into Parliament.

The vacancy is created by operation of law the moment a Member of Parliament’s membership of a party under which he or she was elected ceases, and the receipt of a written notice by the Speaker or the President of the Senate.

The Speaker and the President of the Senate only have to accept that a person has ceased to be a member of a political party as communicated by that party in the written notice.

The provisions of Section 129(1)(k) of the Constitution do not vest in the Speaker or the President of the Senate power to enquire into the legality or otherwise of the member’s political party membership cessation.

Their role is not quasi-judicial. They do not enquire into the political party’s decisions or substantive correctness of the expulsion of its member.

They do not get involved in internal political party disputes.

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Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity.He can be reached at +263 772432646.

I salute everyone who marched during the Anti-Sanctions Day commemorations on Wednesday. Putting national interests first is crucial for national development and coming together to speak with one voice in denouncing the illegal embargoes is a clear sign of our patriotism. Our gratitude also goes to SADC for showing solidarity with Zimbabwe in calling for the removal of the sanctions. —