Sacrificing the Soul to Save the Toe Presented by: Dr. Magaisa Date: 20 January 2021 The Law Disproportionately Favors Political Parties - Section 129 of the Constitution of Zimbabwe • "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 ..."  When an MP ceases to belong to a political party he was a member of at the time of the election and if the political party makes a declaration to the Speaker, he loses his seat.  Anti-defection or Anti-floor-crossing clause - prevents elected representatives from defecting or crossing to other political parties.  It is also a punitive provision in that it is used against errant members in disciplinary proceedings  Provides an incentive for compliance with party policy and directives and therefore restricts freedom to dissent Constitutional Court's View of the Provision - As the Constitutional Court stated in the Madzimure case (2015): • 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." • "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." Which Party had rights over the MPs? - The dispute over the MPs revolved around the identity of the party that had the right to remove them from Parliament: the MDC-T or the MDC Alliance? These members were elected under the MDC Alliance label. - If the provision was designed to protect the political party and if voters choose the political party rather than the candidate, as the Constitutional Court stated, it follows that the political party that matters is the one that was on the ballot paper during the election. - Following this logic, that party was the MDC Alliance because that is the party that the voters chose. Membership of the party should have been membership signified by whom the candidates represented at the election. Yet it was the MDC-T, which was not a party to the elections which was recognized and permitted to remove MDC Alliance MPs? Which Party had the right to replace MPs? - Zimbabwe has a mixed electoral system: constituency- based seats voted on the basis of First Past the Post and proportional representation seats. - PR seats are allocated on the basis of the proportion of votes that the party gets in constituency based seats. MDC Alliance PR MPs were elected in this way, representing the MDC Alliance in Parliament - However, the right to remove and replace them was given to the MDC-T. In this way, the Zimbabwe Electoral Commission (ZEC) changed the players. It had never recognized the MDC-T as a self-standing party, neither had it allocated any seats to it separately from the MDC Alliance at the election. Punishment History And Usage Of The Provision - It was first introduced in the late 1980s, after a leading member of ZANU PF and a rival of Robert Mugabe was expelled from the ruling party but could not be removed from Parliament. The Constitution was quickly amended to allow parties to remove MPs. However, this amendment could not be applied retrospectively to the targeted MP. - Therefore, given its origins as a punitive measure, it is hardly surprising that it has been used for that purpose over the years. - The provision has been used by both the ruling party, ZANU PF and the opposition party, the MDC on various occasions. Neither of the parties have demonstrated forbearance when one of its members has differed with them. It is fair to argue that the provision has been weaponized by political parties to punish dissenting voices. Human Rights Concerns - Voters' Political Rights - Right to Representation • Section 67 of the Constitution  "1. Every Zimbabwean citizen has the right-- a. to free, fair and regular elections for any elective public office established in terms of this Constitution or any other law; and b. to make political choices freely."  "3. Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right-- a. to vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret…” - • Voters are excluded from the process of removing MPs • Voters are also marginalized in the process of replacing MPs • Suspension of by-elections has added to voters' woes Legislative Authority Derives from the People • "117. Nature and extent of legislative authority 1. The legislative authority of Zimbabwe is derived from the people and is vested in and exercised in accordance with this Constitution by the Legislature"  Subversion of democracy in that the choice of voters was expelled by a group of political elites without consultation and their replacements were also made by the same elites, again without any consultation Comparative Analysis: Right of Recall A weakness of Zimbabwean law is that while it provides for the right of a political - party to terminate the tenure of an MP, it has virtually no provision for the right of recall by citizens. The recall is a mechanism of direct democracy by which citizens exercise their power - to terminate the term of office of an elected representative before it officially expires. An important mechanism to hold elected representatives to account during their - tenure of office. By comparison it is more democratic that a system that gives power to political parties. The argument is that if representatives are elected by the people, it makes sense to give the people the power to remove and replace them. Some countries like Nigeria, Kenya, UK have the right of recall, while others like - Zimbabwe and South Africa do not have the same mechanism. Uganda is an interesting case - it has the recall mechanism under its Constitution, but it is suspended during the period of multi-party democracy. It only applies during the movement system. Comparative Overview COUNTRY Nigeria Kenya MINIMUM THRESHOLD Recall petition more than 50% of registered voters in the constituency 30 percent of the registered voters in the constituency, in RECALL GROUNDS Petitioners meant "alleges their loss of confidence in the member Where the MP has violated specified constitutional RECALL REFERENDUM Simple majority of votes of registered voters in the constituency Recall election is decided by a simple majority. But the United Kingdom addition to 15 provisional percent in each ward mismanaged public resources has been convicted of an offence under the Elections Act Recall petition must The recall be signed by at least mechanism can only 10% of registered be initiated on any of voters in a 3 specific grounds constituency If MP is convicted in the UK of an offence and sentenced or ordered to be imprisoned and all appeals have been exhausted; If MP is suspended from the House on recommendation by the Committee on Standards for a specified period; If MP is convicted of an offence under section 10 of the Parliamentary Standarda Act 2009 recall vote must be supported by a minimum of 50 percent of registered voters in the affected constituency No recall election. Recall is triggered by the petition.