7.0 Findings of the Committee
7.1 Zimbabwe is a constitutional democracy and is thus founded on the respect for the supremacy of the Constitution. Constitutionalism includes, amongst other values, respect for the rule of law, observance of the doctrine of separation of powers and respect for fundamental human rights and freedoms.
Section 2 of the Constitution of Zimbabwe states that—
“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”
The Zimbabwe Electoral Commission (“ZEC”) declared the President the winner on the 2nd August 2018. The MDC-Alliance was not happy with the declaration by ZEC and duly invoked their constitutional right to challenge the decision in terms of section 93 subsections (1) and (3) of the Constitution, which states that—
“(1) …any aggrieved candidate may challenge the validity of an election of a President…by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election…
(2) The Constitutional Court must hear and determine a petition or application under subsection (1) within fourteen days after the petition or application was lodged, and the court’s decision is final.”.
The Constitutional Court heard the case, dismissed the challenge and confirmed the ZEC results on the 24th August 2018. As stated in section 93(3) cited above, the Constitutional Court’s decision is final. The President was thus sworn into office on the 26th August 2018. The Constitutional Court incontrovertibly settled the matter in terms of the law.
After the courts settled the matter and at the commencement of the Ninth Parliament in September 2018, the MDC-Alliance resolved to continue to protest through numerous forms of demonstration against the Head of State. The MDC-Alliance Members exhibited this contemptuous behavior on five instances and continuously disobeyed rulings by the Hon Speaker.
7.2 Previous Rulings by the Speaker on the same
Due to the fact that MDC-Alliance Members of the National Assembly made demonstrations referred to earlier, the Hon. Speaker progressively ruled as follows—
(1) That the Sergeant-at-Arms with the help of the Zimbabwe Republic Police stationed at Parliament eject Members of the MDC-Alliance from the House;
(2) That they will not be allowed back into the Chamber and were suspended from sitting for that day and their allowances for the day were forfeited;
(3) That their sitting allowances be docked for five (5) months.
After the Hon. Speaker’s rulings the respondents continued to demonstrate against the President. This led to the motion by Hon Togarepi which eventually led to the establishment of this Privileges Committee.
7.3 The Law
Section 116 of the Constitution states that—
“The Legislature of Zimbabwe consists of Parliament and the President acting in accordance with this Chapter.”.
Further section 145(1) states that—
The first sitting of Parliament after a general election must take place at a time and date determined by the President, but the date must not be later than thirty days after the President elect assumes office in terms of section 94…”.
The President and Parliament combined form the Legislature and together they derive legislative authority from the people of Zimbabwe that elected them into Office in terms of section 117(1) of the Constitution. At the beginning of the life of a Parliament following a General Election it is custom and practice that the Head of State officially opens Parliament.
7.4 It is trite to mention that whenever His Excellency attends Parliament for the occasion of the State of the Nation Address or the National Budget Presentation, he does so in terms of Section 140 (3) of the Constitution. Rising when the His Excellency enters Parliament is the modus operandi known and applied world-wide to pay homage to the Head of State. It is salutary to note that not all traditions, practices or cultures are prescribed by law. The Office of the President is a constitutional office grounded in the supreme law that commands respect because of what it represents. Members of Parliament, like all other citizens and residents, are expected to acknowledge the dignity and legally sanctioned leadership status of an individual, in his or her official capacity.
7.5 In terms of Section 128 of the Constitution, Members of Parliament are required to take the Oath of a Member of Parliament before he or she sits in Parliament. This oath is prescribed in the Third Schedule to the Constitution reads as follows—
“…I will be faithful to Zimbabwe, that I will uphold the Constitution and all other laws of Zimbabwe, and that I will perform my duties…faithfully and to the best of my ability.”.
The requirement to agree under oath to uphold the Constitution is an unequivocal requirement to holding public office. In simple terms, if you uphold the Constitution and other laws, principles, or decisions, you must support and maintain it, under obligation.
7.6 The title “Honourable” which Members bear is used for high officials in many jurisdictions, the title demands that Members act in the best interest of the nation, province, state or territory concerned. In particular, public officers, have a fiduciary relationship with the citizens on whose behalf they act and are entrusted with the responsibility to protect and uphold the common interests of the citizens. These same citizens rise on sighting their elected representative and yet Members of Parliament refuse to do the same for the Head of State who like themselves, embody the people’s will. Members of Parliament have complementary obligations to their Parliament—
(a) which should protect, strengthen and promote the Parliament; and
(b) which should reflect favourably on the reputation of the institution of Parliament.
Generally, the behaviour of the Members of Parliament must be decorous and must not bring Parliament to shame.
7.7 PIPPA and the Standing Orders of both Houses of Parliament are clear on the powers of Parliament in disciplining its own Members.
7.8 Investigations by the Committee revealed that the MDC-Alliance met and made a resolution to disrespect His Excellency, the President. As stated earlier, the Committee received Minutes of the National Standing Committee of the MDC-Alliance held at the Morgan Richard Tsvangirai House on the 26th of October, 2019, which stated that the leadership of the MDC-Alliance had, “reiterated the Party stance that the elections were stolen, and that ED was illegitimate”.
Furthermore, the same minutes reflected that, “There was a standing instruction that we should never recognize ED’s address to Parliament.” and that, “Drastic action will be taken against those who continue to undermine the party position.”.
7.9 The Committee found that Tabitha Khumalo, the then leader of the Opposition, Prosper Chapfiwa Mutseyami former Opposition Chief Whip, Nomathemba Ndlovu, former Deputy Opposition Chief Whip in the National Assembly and Lilian Timveos former Opposition Chief Whip in the Senate were the chief instigators and enforcers as they ensured that their collective party strategy, that is disrespecting His Excellency whenever he attended Parliament, was executed as had been agreed upon by the MDC-Alliance at Harvest House on the 26th October, 2019.
7.10 The Committee discovered that, all MDC-Alliance Members and Senators acted in common purpose by commission or omission.
7.11 The majority of MDC-Alliance Members were defiant and unapologetic for their misconduct. Hon. Watson was particularly hostile and disrespectful in her responses to the Committee suggesting that the Chairperson was fooling himself or trying to fool her which was not palatable to the Committee.
7.12 In summary, the Committee found the MDC-Alliance Members guilty of contemptuous behaviour. They also exhibited gross disrespect by boycotting, walking out and singing political songs, on the five occasions mentioned earlier in this report.
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