Sengezo Tshabangu, the self-styled Interim Secretary of the Citizens Coalition for Change (CCC), has torn apart a court appeal filed by CCC MPs who are challenging their recall, claiming their request is ineffective without naming the political party they represent.
The CCC party is neither an applicant nor a respondent in the application filed by 14 of the recalled MPs who challenged their recalls in the High Court, citing Tshabangu, the Speaker of the National Assembly – Jacob Mudenda, and the Zimbabwe Electoral Commission (ZEC) as respondents.
So far, Tshabangu has recalled 15 MPs, nine senators and 17 councillors.
Tshabangu stated since the recalled MPs’ application suggests he is an imposter, he expected them to include the CCC political party or “at the very least” cite it as an accompanying co-applicant.
“The failure to cite the political party that has the responsibility to recall makes this application a non-starter and fatally defective and it ought to be dismissed,” read Tshabangu’s notice of opposition as he argued points in limine.
In his notice of opposition, Tshabangu said the recalled MPs’ application for declaratory relief is a disguised application for review of the Speaker’s decision to recall them including his office.
Tshabangu claims the recalled MPs are attempting to overturn the Speaker’s decision to recall them, “which cannot be reviewed at law.”
He noted the recalled MPs alleged he is not a member of CCC but “failed to attach the Constitution or any other documents that speaks to, or proves whether I am a member or not and whether they are members or not.”
“By the same token, they have not attached the relevant documents – showing that I am not the interim Secretary General and whether or not these positions exist or not. Further, they have not attached their membership cards, membership registers nor proffered any explanation for the absence of those,” Tshabangu said.
In the absence of such, Tshabangu stated the recalled MPs “fail to prove their case, more so, this becomes a classic dispute of facts which cannot be resolved from the papers and should have been clearly foreseen by the applicants.”
Tshabangu, however, claims that he was “appointed along with others as a designated officer, and attaches documentation as ‘Annexure ST2’ to show that.
He said the recalled MPs rely on letters allegedly authored by CCC President Nelson Chamisa purportedly representing the CCC and directed at the Speaker and ZEC, which are cited as Annexure PDI, PD3, PDS and PD6 in their application.
However, Tshabangu claimed those letters constitute “hearsay evidence which is inadmissible as affidavits.”
Moreso, the party is not an applicant in these proceedings and neither has it been cited as a respondent and it cannot challenge my authority to write the recall letter and the contents thereof,” he said.
Tshabangu argues therefore, the relief sought by the recalled MPs is “incompetent”.
“The relief sought fails to set aside the actions of the Party but rather seeks to set aside my actions, which actions and authority were derived from the party. In terms of Section 129(k) it is the party and only the party that can recall,” he said.
“Without an order setting aside the actions of the Party or interdicting the Party an interdict against me or the Speaker and ZEC is incompetent and even if granted would be of no effect.”
Tshabangu also said despite pleas made by the recalled MPs that their case is urgent meaning it cannot wait, he contends there is “nothing urgent about this matter. “
“The Applicants allege that the matter is ‘urgent’ in paragraph 49.2 which simply relates to the existence of a vacancy which should be filled within 90 days. The filling of vacancies is a process regulated and provided in terms of the law,” read his opposition notice.
Meanwhile ZEC’s Chief Elections Officer, Utoile Silaigwana responded that the MPs had not cited President Emmerson Mnangagwa who is the one who proclaims election dates as their job is to follow the law.
“Once the president makes the proclamation, ZEC is again enjoined by dictate of the law to proceed with the electoral process as proclaimed lest it be in violation of its constitutional mandate to conduct by-elections so proclaimed,” Silaigwana said.
However, CCC said the publication of proclamation dates for the by-elections while the recalls are challenged in court was “a clear indication of (President Emmerson) Mnangagwa’s involvement in the recalls.”
“Zimbabwe is now facing an unprecedented constitutional and political crisis,” the CCC said in a statement.
“The party will explore all available solutions to protect the nation from the unnecessary anguish of going through another election immediately after a contentious one.”