Biti and colleagues Settlement Chikwinya, William Madzimire, Sichelesile Mahlangu, Regai Tsunga, and Kucaca Phulu, were removed from Parliament by an obscure splinter of their former People’s Democratic Party (PDP) saying they had ceased to represent its interests.
Their recall raised legal questions after House Speaker Jacob Mudenda simply read out a letter from the PDP seeking the lawmakers’ expulsion without announcing outright that their seats had fallen vacant.
Legal watchdog Veritas opined on Monday that the recalls remained an open question due to “confused and hotly disputed” facts, “hence it is too early to say that the members have lost their seats.”
But Madhuku said the law was clear and that Biti and his colleagues were no longer lawmakers.
“According to our constitutional law as now spelled out authoritatively by the Constitutional Court, the vacancy of a Member of Parliament who is being recalled arises at the moment the Speaker or the President of the Senate receives the letter that is contemplated in Section 129 (1) (k),” Madhuku argued.
“So the vacancy arises at the moment of receipt of the letter. The vacancy does not arise at the moment the Speaker makes the announcement in the National Assembly or the President of the Senate making an announcement in the Senate.”
He added that Mudenda did not have to pronounce the removals verbatim.
“It is not relevant what the speaker says in parliament or how he words his announcement is not relevant.
“What is only relevant is the notification by him to say that I did receive, is just but public information to say that the vacancy did arise earlier on,” the law professor said.
“So legally if you want to check at what point the vacancy rose you would have to check at what point the letter was officially received by the Speaker or the President of the Senate.”
The MDC Alliance has since last year lost about 40 MPs and 81 councilors through recalls, mainly by the rival MDC-T led by Douglas Mwonzora, seen by critics as a Zanu-PF puppet.