THERE was drama in the High Court of Zimbabwe last night when MDC Alliance lawyer Tendai Biti froze after being shown the MDC Alliance agreement by Justice Tawanda Chitapi, moments after he had counter-argued that the MDC Alliance was a party and not an umbrella of several parties.
The document, which was signed by the late opposition leader Morgan Tsvangirai, showed that the parties to the electoral pact would remain independent and separate, which the MDC-T argues means it has the power to recall MPs who were sponsored in the Alliance line-up by the MDC-T.
The alliance allocated blocks of right of nomination to the parties forming the Alliance.
It took a while for Biti, who is the MDC Alliance Vice President, composed himself and proceeded to argue that the alliance agreement had died a natural death because the MDC Alliance was now a party.
Biti was also shown two letters, one written by Chalton Hwende on March 2 this year, giving Douglas Mwonzora final warning. The letter was written on MDC letterhead not on MDC Alliance letterhead.
When asked to explain, Biti could not offer an explanation.
He was also at pain to explain why the letter recalling Victoria Falls mayor signed by Hwende on February 24, was on the MDC letterhead.
Biti argued that the judge should “ignore the alliance agreement”.
The main preliminary issue is whether the court has the power to interdict a parliamentary process and whether MDC-A has the legal standing to bring the suit.
In the urgent hearing, MDC Alliance along with two legislators Happymore Chidziva and Wellington Mariga, approached the High Court seeking an interdict against further recall and expulsion from Parliament of any more MPs elected into Parliament on the party’s ticket.
This followed the recent recall from Parliament of four MDC Alliance MPs — Charlton Hwende, Thabitha Khumalo, Prosper Mutseyami and Lilian Timveous — by reinstated MDC-T secretary-general Douglas Mwonzora.
The MDC Alliance legal team was led by Mr Tendai Biti, while MDC-T leader Dr Thokozani Khupe was represented by Professor Lovemore Madhuku. Because the court was first looking at preliminary issues raised by the MDC-T, Prof Madhuku addressed the court first.
Prof Madhuku’s main argument was that the court could not hear the case for two reasons, that a political party had no inherent constitutional right to sue on behalf of Members of Parliament and that the MDC Alliance was not a legal person, being just an umbrella body for a group of political parties.
Going into detail, Prof Madhuku said: “Under our Constitution, a political party does not own Members of Parliament.”
He submitted that the court should throw out the application on the basis that it was incurably defective at law, citing a number of procedural irregularities characterising the urgent application.
Madhuku also argued the application, though disguised as an urgent chamber application, was targeted on Parliament and was essentially an allegation that Parliament will fail to fulfil its Constitutional obligations to protect the tenure of seats. Only the Constitutional Court had jurisdiction to deal with such a matter, he said.
“The relief sought is unconstitutional on the basis that the court cannot interdict parliamentary process on an urgent basis in view of the doctrine of separation of powers,” said Prof Madhuku.
He also argued that the MDC Alliance had no legal standing to bring such an application because it was not a legal person. Even if the party was held to be a legal person, the MDC Alliance still had no legal basis to represent Members of Parliament. This disqualified Chidziva and Mariga to be independently before the court if the MDC Alliance was held to be improperly before it.
Prof Madhuku also accused MDC-A lawyers led by Mr Biti of hiding the Supreme Court judgment of 31st March this year that gave rise to the recalling of the MPs.
Justice Chitapi reserved ruling to Friday, May 29, to study the submissions made by the parties’ lawyers on the preliminary issues, before going into the merits of the case.
In its application MDC Alliance wants the court to stop Mr Mwonzora, Dr Khupe, Speaker of Parliament Advocate Jacob Mudenda, Senate President Mabel Chinomona and Local Government and Public Works Minister July Moyo from recalling legislators and local government councillors elected under the MDC Alliance ticket.
The MDC Alliance also wants Mudenda, Senator Chinomona and Minister Moyo barred from accepting instructions from the Dr Khupe-led party to expel its members. – Zimbabwe Voice