Hebert Gomba and Others v Movement for Democratic Change (T) and Others

The applicants were elected councillors for various wards within Harare under the banner of the Movement for Democratic Change Alliance. The first applicant was subsequently elected Mayor of Harare City Council. On or about 20 August 2020, the applicants learned through social media that the first respondent (MDC-T) had notified the Minister of Local Government and Public Works (second respondent) that the applicants' membership had been terminated. The first respondent relied on sections 278 and 279 of the Constitution. The second respondent then wrote to Harare City Council (third respondent) declaring the relevant wards vacant, and directed notification to the Zimbabwe Electoral Commission (fourth respondent) to facilitate by-elections in terms of section 121 of the Electoral Act. The applicants filed this urgent application on 2 September 2020 seeking interim relief to suspend the by-elections and a final declaration that the first respondent had no authority to recall mayors and councillors.

• Whether section 129(1)(k) of the Constitution, which provides for recall of Members of Parliament by their political parties, applies to mayors, chairpersons and councillors of local authorities by virtue of section 278(1) of the Constitution
• Whether the court can interdict the Zimbabwe Electoral Commission from performing its lawful statutory functions under sections 121 and 121A of the Electoral Act
• Whether mayors, chairpersons and councillors can only be removed from office through an independent tribunal established under section 278(2) of the Constitution
• Whether the applicants established a prima facie case for interim relief

The urgent application was dismissed with costs.

Section 278(1) of the Constitution of Zimbabwe incorporates section 129(1)(k) and applies it to mayors, chairpersons and councillors of local authorities, such that they lose their seats when they cease to be members of the political party that sponsored their election, upon written notice by the party to the Minister responsible for local government. Section 278 provides two distinct grounds for vacation of office: (1) cessation of party membership under section 278(1) read with section 129(1)(k); and (2) removal by an independent tribunal on specified grounds under section 278(2). Courts cannot interdict the lawful exercise of statutory powers by electoral commissions where such bodies are performing peremptory administrative functions without any discretion or review powers, as this would violate the separation of powers doctrine.

The court noted that the fourth respondent (ZEC) properly relies on the presumption of regularity of vacancy notices issued under section 121(1) of the Electoral Act and has no duty to determine the propriety of the recall process - its duty extends only to authenticating the notice and acting upon it. The court also observed that the applicants inadvisably did not file an answering affidavit to the fourth respondent's opposing affidavit and failed to challenge key contentions regarding ZEC's limited role. The court emphasized that ZEC's functions do not extend to reviewing the validity of the political recall process but are purely administrative in facilitating the electoral process once properly notified of vacancies.

This judgment is significant in Zimbabwean constitutional and local government law as it authoritatively interprets section 278 of the Constitution, clarifying that mayors, chairpersons and councillors can be recalled by their political parties in the same manner as Members of Parliament under section 129(1)(k). The case establishes that section 278 provides two separate mechanisms for removal from office, not one. It also reinforces the separation of powers doctrine by confirming that courts cannot interdict electoral authorities from performing lawful statutory functions. The judgment has practical significance for the operation of local government and the recall mechanism for elected local authority representatives in Zimbabwe.