Alex T. Magaisa
I have read that Dr Munyaradzi Kereke, National Assembly independent MP for Bikita West has been re-admitted into Zanu PF. This raises an important constitutional issue, which this brief note addresses.
In terms of the Constitution, when an MP who was elected as an independent candidate becomes a member of a political party, his seat becomes vacant. This is in accordance with section 129(1)(l.) of the Constitution, which provides that:
“The seat of a Member of Parliament becomes vacant –
(l) if the Member, not having been a member of a political party when he or she was elected to Parliament, becomes a member of a political party”.
Therefore, if a person campaigned for election and won a seat as an independent, he must remain as such or give up his seat when he joins a political party.
In the case of Kereke, it must be established that he ran for the Bikita West seat as an independent and that he was not a member of Zanu PF. It appears that Kereke ran as an independent when his erstwhile party, Zanu PF, chose another person, Elias Musakwa as its candidate. Reports at the time from Zanu PF was that Kereke had expelled himself by running for Parliament contrary to his party’s orders. Kereke ran as an independent and trounced Musakwa.
He was not alone in taking this route. His counterpart in Mashonaland East, veteran lawyer Jonathan Samukange also ran as an independent, contrary to his party’s orders and also defeated the Zanu PF candidate. Indeed, throughout Parliament’s tenure so far, Kereke and Samukange have been referred to as independent MPs.
The fact that Kereke has now been reported as having been “readmitted” into Zanu PF might be read as an indication that he has now become a member of a political party when at the time of the election he was not and therefore this triggers the operation of s. 129(1)(e.) of the Constitution.
This effectively means that a vacancy has arisen by operation of law. The Speaker of the National Assembly is therefore required to declare that the seat has become vacant. Section 39(1) of the Electoral Act requires the Speaker to notify the Zimbabwe Electoral Commission(ZEC) and the President that a vacancy has arisen.
Since a vacancy has arisen, it needs to be filled in terms of s. 158(3) of the Constitution. The President has the power to call elections in terms of s. 110(2)(e.) of the Constitution and also provisions of the Electoral Act.
Looking at the bigger picture, this adds to the number of by-elections that must now be held within the next three months. It will not exactly be a mini-general election but given the spread across the country – Mt Darwin, Bikita and Chirumanzu – it will yet again, raise the political temperature which often accompanies elections in Zimbabwe. If they want, they could concede to the MDC-T’s demand for the removal of MPs who have crossed over with the MDC Renewal Team. In that case, it will resemble a mini-general election given the numbers and spread of MPs affected.
Politically, therefore, the new vacancies present a challenge over their position in elections. Will they contest or will Zanu PF have a free-ride given that all three seats were effectively in Zanu PF’s hands? That is a question that needs to be addressed.
Meanwhile, it would be interesting to see how they will manoeuvre in this respect but in terms of s. 129(1)(l.) a vacancy appears to have arisen in Bikita West and it now needs to be filled.
Read more on this blog: http://www.newzimbabweconstitution.wordpress.com