Mliswa calls for amendment of Zimbabwe Constitution to stop recalling of MPs





Independent Member of Parliament Temba Mliswa has called for the amendment of the Zimbabwe constitution to enable the Constitutional Court to have a say when legislators are recalled by their political parties.

The constitution currently says a political party has the right to recall its members if they fall out of line or are expelled.

In a motion tabled in Parliament last week Mliswa said politicians were living in fear because of this clause.

The worst hit party at the moment is the Movement for Democratic Change Alliance which has been devastated  following the resuscitation of the MDC-T  first under Thokozani Khupe and now under Douglas Mwonzora.

More than 120 legislators and councillors have been recalled so far, with 39 legislators and 81 councillors from the MDC –A and six from the People’s Democratic Party, though those from the PDP won their case in court but have not yet returned to the House.

“This is the reason why I believe that political parties are irrelevant in the modern day politics. What we need are people who will be able to represent people for their tenure which the people would have voted for,” Mliswa said.

“Equally, when Section 129(k) is being exercised, the party must not have the final say in the expulsion but the Constitutional Court. The Constitutional Court must be able to hear both sides.”

Mliswa added: “Politicians are in fear every day, mapoliticians arikukwira makomo avasingazive vachinamata kuti mangwana ndinogona kudzingwa.  Vave kutoenda kudzin’anga kuti ndiwane basa iri nekuti mangwana mumwe anongotaura kuti ayihwa.  So it also creates unfair advantages to a lot of people………..

“What am I saying here? There has got to be internal democracy in the political parties.  We talk about democracy a lot, but how much democracy is in the political party is.  Charity begins at home.  By you recalling somebody just because of Section 129(1) (k) it is not democratic enough.

“Have you even consulted the electorate that voted for the person?  Our personal differences – if you look at most people who have been recalled, it is not because they failed to discharge their duties, but it is political personal agendas.  This becomes a weapon which everybody uses, but we see again that while this weapon is being used, we also have a situation where people now hold back.

“I have seen the most brilliant mind in this Parliament being quiet and I have said why are they quiet?  I have seen myself talking not because I am brilliant but because I do not report to anyone, and am not put on a list by anyone.

“There is a difference between leadership and the electorate, because the leadership likes you it does not mean that the electorate likes you. I am an example of that. While I was expelled from ZANU PF, the Norton elections which are of record, in 2013 ZANU PF won with 10 500 and MDC had 9 300. In 2018 ZANU PF had 4 000, MDC 7 000 and I had 17 000 which means the majority of the ZANU PF came to me because they follow a leader who is independent and who has strong values. That is an example you must understand.

“It is critical that these statistics are kept by politicians who are serious. If you look at it and add 4 000 to 7 000, it is 11 000 and I had 17 000. So the two could not even match because you have a constituency which believes in a leader who is independent minded and fast, people are becoming aware of representing and so forth.

“So long the leadership of the party is supreme; you cannot rely on the leadership of the party to win elections. You must rely on your own work and independent thinking. Even if you are the advisor to the President, when people now look at the electorate, they choose their leader. So positions mean nothing at the end of the day,” he said in what could have been a reference to Chris Mutsvangwa whom Mliswa beat in the 2018 elections when Mutsvangwa  was advisor to President  Emmerson Mnangagwa.

Below is his lengthy contribution:

MOTION

AMENDMENT OF SECTION 129 (1) (k) OF THE CONSTITUTION OF ZIMBABWE

HON. T. MLISWA:  I move the motion standing in my name that this House:

RECOGNISING that Members of Parliament, with the exception of Independent candidates, are elected to Parliament on a political party ticket;

ACKNOWLEDGING that every political party is guided by its own ideology, values and principles which largely influence the manner in which members of the party debate on issues brought before Parliament;

AWARE that once a Member of Parliament is elected, he or she becomes a representative of every citizen of Zimbabwe in his or her constituency and not just those that voted for the Member;

CONCERNED that Members of Parliament cannot fulfil this representative role to its letter and spirit due to the strictures imposed by political party ideology which is enforced by the whipping system;

NOTING that Section 61 of the Constitution of Zimbabwe affords every citizen, including Parliamentarians, the right to freedom of expression and the right to seek, receive and communicate ideas and other information;

ALSO NOTING that Section 148 (1) of the Constitution provides that Members of Parliament have freedom of speech in Parliament and in all Parliamentary Committees and, while they must obey the rules and orders of the House concerned, they are not liable to civil or criminal proceedings, arrest or imprisonment or damages for anything said in, produced before or submitted to Parliament or any of its committees;

COGNISANT, however, that this privilege is invalidated by Section 129 (1) (k) of the Constitution which gives political parties the unfettered power to recall a Member of Parliament whom, in executing his or her representative function, does not toe the party line;

DEEPLY CONCERNED that this provision entrenches the whipping system and limits Members of Parliament’s ability to debate freely, earnestly and without fear or favour on issues that affect the people of Zimbabwe where the matters appear to contradict the party line; and

NOW, THEREFORE, calls upon Parliament to: Urgently amend Section 129 (1) (k) of the Constitution of Zimbabwe so that it stays execution of any notice of expulsion of a Member until the Constitutional Court has certified that due process was followed.

HON. MUSHORIWA:  I second.

HON. T. MLISWA:  Madam Speaker, thank you very much and good afternoon to you.

THE HON. DEPUTY SPEAKER:  Good afternoon Hon. Mliswa.

HON. T. MLISWA:  Thank you. Madam Speaker.  The motion that I am moving is to do with the recalling of the Members of Parliament.  I am glad that it is happening at a time when most Members of Parliament now appreciate it.  Madam Speaker, the Section 129 (1) (k) of the Constitution has become a weapon for political parties to push their personal agendas.  Madam Speaker, I will relate a lot to the House of Commons which I think traditionally we have learnt and copied a lot from and then I will come back to the situation in this country.  One of the key problems in Parliament of which little is understood but which hugely undermines its effectiveness is the whip’s stronghold over the scrutiny of Government Bills.  At present, members of these Bill committees are chosen by Standing Rules and Orders Committee, a Committee of which is composed of whips from the main parties with a Chairperson; currently the Chairperson of the Legal Committee who at present is Hon. Samukange and has been chosen by the Executive.

It has long been clear that this mechanism has serious disadvantages, firstly by putting the power to select Bill Committee members into the hands of the whips representing the interests of their political parties. Their choice invariably reflects the wishes of the Executive who command the majority to push their legislation through as quickly and painlessly as possible.  We have Bills that come through and are in the hands of the whips representing the interests of their political party.  The key issue and political parties must be replaced with representing interests of the nation but the whipping system whips Members of Parliament to follow their party.   This has naturally disadvantaged the people of this country because national interests are superior to political parties.  We must all be vanguards of the nation than political parties come through but we have now made political parties to be more powerful than the nation.  The Government of the day looks at national interests and it is important that while they look at the national interest, everybody in the nation is considered and factored in as well.

Political parties’ agenda is political and the agenda is for their party to be powerful but again, they lose it when they do not realise that by the party embracing national issues, it becomes powerful in its sense.  As you can see, they have not exercised that and as a result, there is a lot that happens.  The Executive and the Chairperson of the Legal Committee is chosen by the Executive.  What oversight can you have over the Executive when we in this Parliament are supposed to be having oversight of the Executive but one is appointed by the Executive?  Madam Speaker, your ascendency to the throne where you are is a result of an election process – so is that of the Speaker.  So why then do we not have an election process of electing these people and at times when it is about electing these people, most of them do not have capacity.  It is about people who are mere cheer leaders and as a result, the country suffers.  The suffering of the country is something which no generation can overturn.  We now have a system of cheer leaders and now even those who have capacity, for them to be felt and to be given positions, they are being cheer leaders.  Are we then pushing national interests or not yet this House is known as the National House of Assembly?  It is not the political party House of Assembly – it is the National House of Assembly.  How many are able to leave the political jacket out before they enter in here?  It takes a lot but you can see it is a habit.  With the politics of Africa which is hate politics, it is a permanent relationship which is not sustainable as and when they must use it then they come through.

The passing and through the command – the majority pushed the legislation through as quickly as possible; how many – all, the nation, us for having passed Bills here and amending laws.  It is also important for the electorate of this nation to understand that the Constitution is theirs.  It is not ours here in Parliament.  All we have to do is to do things which are constitutional. I will throw this to the electorate or Zimbabweans at large today, that for many at times you have not taken responsibility in that the Constitution you made – 90% of the people agreed to this Constitution.  If at all you did not want this Constitution to be amended, why then at the time when the Constitution was being crafted, you did not put a clause like – we do what the people want and that is what we do.  There is nothing Parliament has done to abrogate its duty.  We have exercised constitutionalism of the highest order.

It is incumbent upon the electorate or the Zimbabweans, to equally read the Constitution. Most people talk about it but they do not read it.  If you ask the electorate in this country who is their councillor, Member of Parliament, Proportional Representative or Senator they do not know.  How then will you be able to have detail that is able to assist you on how politics of this country run?  You cannot ignore the councillor, Member of Parliament, Proportional Representative or Senator if you are Zimbabwean.  The challenge that I throw out to the electorate and Zimbabweans, is that you need to understand this Constitution. One of the issues that you must give credit to the late former President R.G. Mugabe was that he knew that they would talk without understanding their Constitution.  The powers that the President has in this Constitution are so many and they have not even used those powers.

State of emergency; the President is empowered to do that but it is the Constitution that came from the people.  The military being on the streets is subject to the provisions of this Constitution, Sections 212-214 which talk about deployment of the military onto the streets to maintain law and order but being headed by the police.  If the police are overwhelmed, then they can call upon the military.   You will then say what are the soldiers doing on the streets?  My question is – what where you also doing when you were allowing this clause to be in the Constitution?  We must be able to understand that the Constitution is a sacred document of this country. What must be questioned is the constitutionalism of it – are we abiding to it or not?

This inevitably results in an unbalanced representation and exclusion of members with necessary expertise to scrutinise the Bill in detail, rigorously and thoroughly as possible which essentially ought to be the object of the Bill at Committee Stage.  We come and a lot is done.  We now have a situation where Parliament has become factional because there are Members of Parliament from the opposition who have been recalled and are not here and they represent people in their constituencies.  Their absence in this Parliament means there is no representation in their constituencies.  Why are we so cruel and not allow people to be represented?  What have the constituency done because they no longer have a representative?

There is a gap now which is difficult to fill.  I have seen some of the most brilliant minds leaving this Parliament because of Section 129 (1) (k).   I once went through the list of the opposition in terms of who really was a lawyer; I counted 16 lawyers and I counted the ruling party having 4 lawyers and some being night school lawyers, I will not mention their names.  You had 16 lawyers, who had the capacity to scrutinise the Bill in detail before it got to Committee Stage which is an important process.  We pass laws and Bills in this House which end up haunting us because we would not have scrutinised and paid attention to detail.

I am not a lawyer, but I rely on people who have gone to legal school.  When Advocate Chamisa was in this House I would sit next to him and ask him what the law says.  When Hon. Biti and Hon Phulu were here, I did the same.  I fed off their legal brilliance and it was important to me because when I then contributed in Parliament, I could talk to people who legally had an understanding of what is going on.  In its present system the onus focuses more on selecting Members with sound views, who can be relied on to be loyal and supportive of the government’s position at controversial points of the legislation.

The electorate expects Bills which will become the law of this country to be critically examined by Parliament.  How do you critically examine Parliament when the Executive itself has got a Chairperson who they appoint?  Basically what we have is a situation where Bills pass through here and it is just rubber stamping.  That is the reason why at the end of the day you do not have robust debate pertaining to Bills.  At the end of the day, you ask yourself when it gets to the process of voting who really votes.  The majority will have their way and the minority will have their say.  I have also seen that while the minority must have their say, their contribution which is effective makes the majority think.

The opposition cannot be the government in waiting by not also contributing effectively to the Bills of this country.  It is important that the government of the day and the ruling party’s policies are examined by the government in waiting.  So, speaking on informed decisions is critical.  There is indeed one of the central reasons of Parliament itself – it therefore sends to the august House Parliamentarians with a wealth of experience and knowledge across the whole sector of the nation’s activities.  To block that repository of skills and intelligence in the interest of government convenience is a public scandal.

We have had experiences in the last Parliament when the Chairperson of the Justice Committee Hon. Jessie Majome who was at that time an opposition Member being replaced by a ZANU PF chairperson when the Constitutional Amendment No 5 was tabled.  Hon. Majome was excellent in terms of executing her duties and understanding the law, but because you are opposing what the Executive wants, you are then changed again by the Executive because numbers then matter.  Should we really say because you are more, you must crush every progressive initiative that comes through?  That is food for thought.

Does being the majority mean you must be crushing everything that is good to just satisfy and to say this is who we are and what we want must go our way?  A Bill which government side has a loyalist majority sometimes with a dissident Member to give an expression of balance though not enough to threaten the majority may sometimes emerge at the end virtually unchanged despite numerous hours of debate.  How many times do we go through all this but yet by the end of the day whatever we are pushing for is not changed.

Madam Speaker, this Parliament has followed procedure and given Parliamentarians an opportunity to be able to speak and leave a legacy.  The only legacy parliamentarians can leave is coming up with progressive laws that are progressive, which is critical at the end of the day.  The Government chief whip is under instructions to see through the Bills unchanged at least in its bold essentials, has the power to block every amendment however, justified or well argued for, unless there is a revolt on the government side which, sadly is much rare than the case often warrants.

There are two ways in which the defects of the current system could be amended.  Instead of the Committee of Selection being dominated by the whips, it could be elected by the whole House on similar basis to the method of election of the Select Committees i.e places are allotted to each party according to their proportion in the House.  Members of each party then vote for their own representatives on the Committee and government has the right to choose the chairperson.  It would then be for members of the House who wish to serve on a particular Committee, to make representation to the elected Committee of Selection and the later could be free to interview such applicants if they so wish.

What am I saying here? There has got to be internal democracy in the political parties.  We talk about democracy a lot, but how much democracy is in the political party is.  Charity begins at home.  By you recalling somebody just because of Section 129(1) (k) it is not democratic enough.  Have you even consulted the electorate that voted for the person?  Our personal differences – if you look at most people who have been recalled, it is not because they failed to discharge their duties, but it is political personal agendas.  This becomes a weapon which everybody uses, but we see again that while this weapon is being used, we also have a situation where people now hold back.

I have seen the most brilliant mind in this Parliament being quiet and I have said why are they quiet.  I have seen myself talking not because I am brilliant but because I do not report to anyone, and am not put on a list by anyone.  So if you are not put on a list – now there is also the issue of some in these political parties who would like to be on the list but if they do not get along with the leadership they are not on the list.  How then do you expect democracy to prevail when looking at a situation where I have to lick to somebody to be in a position, which means you are compromised?




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