Kucaca Ivumile Phulu & Ors v Benjamin Rukanda & Ors

Applicants 1 to 6 were Members of Parliament elected on 31 July 2018 on the ticket of the MDC-Alliance coalition. The seventh applicant was the PDP faction led by Tendai Biti (applicant 6), which was part of the MDC-Alliance. The third respondent was another PDP faction led by Lucia Matibenga, which had broken away from applicant 7's faction in 2017 and contested the 2018 election under the Rainbow Coalition (where respondents 1 and 2 participated but lost). On 14 September 2020, the first respondent, claiming to be secretary general of the PDP, submitted a letter to the Speaker purporting to recall applicants 1 to 6 from Parliament under s 129(1)(k) of the Constitution, alleging they had crossed the floor from PDP to MDC-A. The Speaker read out the letter on 17 March 2021, terminating the applicants' parliamentary membership. Previously, on 14 April 2021, the court had granted a default judgment in case HC 5292/20 declaring that the first respondent was not the Secretary General of the seventh applicant, that his recall letter was null and void, and directing the Speaker and Parliament to disregard it. That judgment remained extant at the time of these proceedings.

• Whether the first respondent had the legal authority to recall applicants 1 to 6 from Parliament under s 129(1)(k) of the Constitution
• Whether the recall letter was valid given that the first respondent was not a member or official of the political party (seventh applicant) on whose ticket the applicants were elected
• Whether the extant default judgment declaring the recall letter null and void had binding effect on the present proceedings
• Whether respondents 2 and 3 were properly before the court
• What are the consequences of an invalid recall under s 129(1)(k) of the Constitution

The court granted the application and ordered: (i) The termination of membership of applicants 1 to 6 to Parliament on 17 March 2021 is set aside; (ii) The fourth and fifth respondents (Speaker and Parliament) shall forthwith restore applicants 1 to 6 to their positions as Members of Parliament and to any committees they were members of before termination, without loss of status or diminution of position; (iii) Costs to be paid by the first, second and third respondents, jointly and severally, the one paying the others to be absolved.

The power of recall from Parliament under s 129(1)(k) of the Constitution is vested exclusively in the political party of which the Member of Parliament was a member at the time of the election that brought them into Parliament. Where a political party splits into factions that contest elections under different coalitions or umbrellas, and those factions are recognized by the electoral commission as distinct formations, they constitute separate political entities for purposes of the recall power under s 129(1)(k). A person who was not a member or official of the political party/formation on whose ticket Members were elected has no authority to initiate recall proceedings against those Members. An extant court judgment declaring a recall letter null and void and setting it aside deprives the author of that letter of any standing to oppose consequential relief restoring the affected Members to Parliament.

The court made strong observations about the conduct of legal practitioners, emphasizing that their first duty is to the court, not their clients. Mafusire J stated that legal practitioners should not act like "hired guns" and should have the courage and responsibility to advise clients when their cause is without merit. The court described the continued opposition by the first respondent as "an abuse of the parliamentary legal processes and privileges" and criticized the matter as one that "properly ought not to have overburdened the court and delayed the obvious." The court also used the metaphor of cuckoo birds to criticize the respondents' attempt to usurp parliamentary seats won by others, stating "They should not behave like cuckoos. These are birds that do not build their own nests. They simply invade the nests of other birds and push out any eggs or nestlings in them so that they themselves can lay their own eggs in those nests. We are not birds."

This case is significant in Zimbabwean constitutional and parliamentary law as it clarifies the interpretation and application of s 129(1)(k) of the Constitution regarding the recall of Members of Parliament. It establishes that the power of recall is strictly vested in the political party or formation on whose ticket the Member was elected, not in breakaway factions or rival groups using the same party name. The case also demonstrates the courts' willingness to protect parliamentary seats from politically motivated recalls based on fraudulent claims of party authority. It reinforces the principle that where political parties split into factions that contest elections under different coalitions, they are recognized as distinct political formations for purposes of the electoral and parliamentary system. The judgment also addresses the binding effect of extant court orders and the duties of legal practitioners as officers of the court.