Constitutional law expert Professor Lovemore Madhuku fights for Thokozani Khupe in court


MDC-T breakaway deputy president, Dr Thokozani Khupe yesterday filed an urgent application at the Constitutional Court in Harare challenging her expulsion from Parliament and seeking re-instatement.

The court application follows her recent ejection from Parliament after the MDC-T recalled her.

Dr Khuphe through her lawyer Professor Lovemore Madhuku is also challenging Parliaments’ failure to fulfil its constitutional obligation to protect the security of her seat as a duly elected MP and the leader of opposition.

In the application, Dr Khuphe and the Movement for Democratic Change (MDC-T) are cited as the applicants while the Parliament of Zimbabwe , Speaker of Parliament and MDC-T national deputy chairperson Mr Morgen Komichi are cited as the first, second and third respondents.

In the application, Dr Khuphe says she approached the apex court as it has jurisdiction to determine whether Parliament or the President has failed to fulfil a constitutional obligation as expressly stipulated by section 167(2).

“At the core of this application is my contention that the first respondent, in arbitrarily announcing that I had lost my seat in circumstances where no reasonable Parliament could ever act in the same manner, failed to fulfil its constitutional obligation to protect the security of my seat as its duly elected member.

“I am approaching this Court in my own interests as a citizen of Zimbabwe, who was elected a Member of the National Assembly in the last general election held on 31 July, 2013. Notwithstanding the position taken by the first respondent, I believe that, at law, I am still a Member of Parliament,” read the application.

Dr Khuphe states that her locus standi in seeking the court’s redress on the matter is beyond dispute.

She argued that whenever Parliament’s attention has been drawn to a split or potential split in a political party, it has a constitutional obligation not to recognise a written notice from one of the groups without either taking the matter to court under an interpleader of sorts or referring the parties to a court for determination.

“From the foregoing, there is a failure by the first respondent in several respects. First, despite being put on notice by me in my capacity as a member and leader of the opposition in Parliament regarding the leadership wrangles triggered by the death of our president, the first respondent failed to fulfil the constitutional obligation of referring the issue to, or waiting for, a court of law before recognising the contents of the letter by the third respondent.

Secondly, in the circumstances of this case, the first respondent acted irrationally in recognising the contents of the letter by the third respondent. I submit that no reasonable parliament could ever have recognised the contents of the third respondent’s purported written notice,” said Dr Khuphe.

She said she believed that the matter was extremely urgent and there was no reason why she should be stopped from performing her duties as a Member of Parliament “on patently unconstitutional actions” of Mr Komichi.

“I am the leader of a political party and my absence from Parliament seriously prejudices not only my political career but also the interests of my party and the electorate. Parliament is currently debating electoral reforms ahead of the next elections. I have an electoral mandate to be involved at this crucial period,” read the application.

She said more fundamentally, any delay in determining the application will infringe on her rights under section 67 of the Constitution as it is only fair that this matter be determined before the sitting of the nomination courts.

“The Court may take judicial notice of the fact that nomination courts will sit in a few weeks. The issues raised in this application are of immense public importance and require an authoritative determination by the highest court. It appears to me that this is the sort of matter requiring the Constitutional Court to act on an urgent basis,” said Dr Khuphe.

In the draft order, Dr Khuphe prays the court declares that Parliament failed to fulfil its constitutional obligation to protect the tenure of the seat of a Member of Parliament as required by sections 119(1) and 129 of the Constitution of Zimbabwe, 2013 by unlawfully, arbitrarily, irrationally and prematurely announcing and/or recognising a vacancy in respect of her seat.

She also wants to be reinstated as a Member of Parliament and that the letter by Mr Komichi to Parliament be declared null and void and of no force or effect.

‘That the Respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the others to be absolved,” read the draft order.

In the application Dr Khuphe gives a background leading to the squabbles in her party stating that she was elected deputy president of the MDC-T- in 2006 and was re-elected to the same post in subsequent congresses including the last one in 2014 and says that she is the only deputy president of the party elected by congress.

– Chronicle

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