The legality of 6 PDP MPs recall

ON March 17, Speaker of the National Assembly Jacob Mudenda told the House that he had received a letter from People’s Democratic Party (PDP) secretary-general and then read out the entire letter.

The letter read: “We hereby advise that acting in terms of section 129(1)(k) of the Constitution, we hereby declare that the following MPs have ceased to belong to PDP, which was a member of MDC Alliance, an alliance formed in terms of the constitutive agreement signed on August 5 2017.”

The letter then explained that the MPs concerned belonged to PDP and as the seven political parties forming the MDC Alliance had retained their identities and independence, the PDP had retained authority over them.

Finally, it said the six MPs “by operation of clause 6(4) (a) of our party constitution have ceased to belong to the party and are hereby being recalled”.

The affected MPs are Tendai Biti (Harare East), Willias Madzimure (Kambuzuma), Settlement Chikwinya (Mbizo), Kucaca Phulu (Nkulumane), Sichelesile Mahlangu (Pumula) and Regai Tsunga (Mutasa South).

According to Hansard, the Speaker then stopped at that point.

He did not say what he has invariably said in the past to the effect that the seats concerned had become vacant by operation of law and that the President and the Zimbabwe Electoral Commission would be informed accordingly.

This may be neither here nor there — the loss of a member’s seat is not triggered by the Speaker’s declaration in the House that there is a vacancy. Before a member can lose his or her seat under section 149(1)(k) of the Constitution, the following aplies: lthe member must have ceased to belong to the political party of which he or she was a member when elected, and

la representative of that political party must have sent a written notice to the Speaker declaring that the member has ceased to belong to the party.

However, in the case of these six MPs it is not clear that they have in fact ceased to belong to PDP or MDC Alliance, whichever was the party they represented in the last election — the facts are confused and hotly disputed.

Nor is it clear that the person who wrote the letter to the Speaker had the party’s authority to do so — a judgment of the High Court which may have given the person authority is under appeal so the matter is sub judice. Hence, it is too early to say that the MPs have lost their seats.