Settlement Chikwinya and Others v Jacob Mudenda NO and Others

The first to sixth applicants were elected as Members of the National Assembly in July 2018 for a five-year term representing various constituencies (Mbizo, Nkukumane, Kambuzuma, Mutasa South, Pumula, and Harare East). Their membership was terminated pursuant to section 129(1)(k) of the Constitution based on a declaration by persons purporting to represent their political party (People's Democratic Party) that they had ceased to belong to that party. In case HC 1348/21, Mafusire J declared the recall invalid and ordered their restoration to Parliament. The fifth and sixth respondents noted an appeal (SC 345/21) which was dismissed by the Supreme Court Registrar for failure to pay security for costs on 16 December 2021. Following this, the President issued Proclamation No. 1 of 2022 on 6 January 2022 declaring vacancies in the applicants' constituencies and fixing dates for nomination court (26 January 2022) and by-elections (26 March 2022). The applicants filed this urgent application on 7 January 2022 to set aside the proclamation. The fifth and sixth respondents had applied for reinstatement of their appeal under SC 10/2022 on 10 January 2022, which remained pending.

• Whether the application was brought in the correct procedural form as an 'urgent court application'
• Whether the matter was urgent warranting hearing on the urgent roll
• Whether the judgment of Mafusire J concerned 'conduct of Parliament' requiring confirmation by the Constitutional Court under section 175(1) of the Constitution before having force
• Whether there were electoral vacancies in the applicants' constituencies justifying the holding of by-elections
• Whether the court should grant an order that the judgment remain in operation despite any appeal

1. Declared that as of 5 January 2022 before publication of Proclamation No. 1 of 2022, there were no electoral vacancies in the constituencies of Nkulumane, Mbizo, Kambuzuma, Mutasa South, Pumula and Harare East. 2. Declared that there are no electoral vacancies for by-elections in those constituencies. 3. The President's proclamation in SI 2/2022 set aside to the extent it announces vacancies, nominations and by-elections in those constituencies. 4. The judgment shall remain extant and in operation despite any appeal noted against it. 5. The fifth and sixth respondents to pay costs of suit.

The binding legal principles established are: (1) Under section 175(1) of the Constitution, 'conduct of Parliament' requiring Constitutional Court confirmation refers to acts done by the Senate and/or National Assembly collectively through resolutions and adherence to Standing Orders, not merely administrative actions by the Speaker as Head of Parliament. (2) The recall process under section 129(1)(k) involves only the political party giving written notice to the Speaker that a member has ceased to belong to it, whereupon membership terminates as a matter of law without any debate or vote by Parliament. Parliament's role is passive and does not constitute 'conduct' for purposes of section 175(1). (3) Under Rule 58(13), bringing an application in the wrong procedural form (court application versus chamber application) is not in itself grounds for dismissal unless the court considers that some interested party has been or may be prejudiced and such prejudice cannot be remedied by directions for service with or without costs. (4) Where a judgment declaring a recall invalid is extant because an appeal against it was dismissed and no reinstatement of the appeal has been granted, there are no electoral vacancies in the affected constituencies and by-elections should not proceed.

The court made several non-binding observations: (1) It has become routine or fashionable for legal practitioners to raise points in limine even where the objection lacks merit, which is undesirable. Objections based on urgency should not be taken routinely but must be supported by facts clearly establishing the matter is not urgent. (2) The court noted that in constitutional matters of national importance involving electoral processes, it makes jurisprudential sense to await court decisions before proceeding with by-elections where vacancies are contested, as otherwise there would be endless by-elections depending on court judgments. (3) The court observed that the first and second respondents (Speaker and Parliament) were making a surprising u-turn by opposing the application when they had not opposed the earlier application before Mafusire J and had agreed to abide the court's decision. (4) The court declined to express a view on the likelihood of success of the pending application for reinstatement of appeal before the Supreme Court, noting this involved discretionary considerations beyond merely the Registrar's error and should be left to the Supreme Court to determine. (5) The court noted it would be advisable for the rules to specify the nature of modifications required when a chamber application must be served on interested parties, as well as timelines for response.

This case is significant for clarifying the meaning of 'conduct of Parliament' under section 175(1) of the Constitution, which requires Constitutional Court confirmation for orders concerning constitutional invalidity of Parliament's conduct. The judgment establishes that not every matter involving Parliament or the Speaker constitutes 'conduct of Parliament' requiring such confirmation. The case delineates between the administrative role of the Speaker and the collective legislative conduct of Parliament through the Senate and National Assembly acting through resolutions and Standing Orders. It affirms that the recall process under section 129(1)(k) is a matter between the political party and the Speaker, with Parliament's role being merely passive. The case also reinforces procedural flexibility under the court rules, confirming that procedural irregularities in the form of application are not fatal in the absence of prejudice. It demonstrates the courts' willingness to hear urgent matters affecting electoral processes and parliamentary membership on an expedited basis where warranted by the circumstances.