MDC-Alliance does not legally exist as a legal person who can sue in court, and in the dispute of the MDC-T recall of legislators does not have the standing to sue, the High Court has ruled, suggesting that the affected recalled legislators bring legal actions as individuals.
The High Court said the only evidence brought before the court showed that MDC-A was an alliance of other political parties, and although it had been given the status of a political party under the Electoral Act, this did not make it a legal person able to sue and be sued, in the absence of other requirements such as a decision to be a legally incorporated voluntary organisation or another type of body corporate.
MDC-A, which had brought an urgent High Court application challenging MDC-T’s recall of legislators elected on the MDC-A ticket, had a bad day in court yesterday. The court did not go into the merits of the case, first having to decide the preliminary issues raised by the MDC-T’s legal team as to whether MDC-A has the legal standing to bring the suit and whether the court has the power to interdict a parliamentary process.
Justice Tawanda Chitapi ruled that MDC-A had no legal right and responsibility to sue on behalf of the recalled legislators and threw out the application. He accepted the argument by Professor Lovemeore Madhuku, acting for the MDC-T, that the alliance had failed to establish that it had reached the stage of being a legal person with the consequent legal capacity to sue and be sued.
“Accordingly, the application must fail as it is incompetent by reason” of the MDC-A’s legal incapacity, said Justice Chitapi. The finding of the court on the MDC-A legal status had a bearing on two legislators — Happymore Chidziva and Wellington Mariga — who associated themselves with the party’s application seeking to block further recalls and expulsions from Parliament of any more MPs elected into Parliament on the MDC-A ticket.
The two felt they were under threat of such a recall and expulsion following the expulsion of the first four.
“Therefore, the finding of invalidity of the application for the given reason herein requires that the application is dismissed rather than struck off the roll,” said the judge.
“The application is and it is accordingly, dismissed with costs . . . ” In his ruling, Justice Chitapi found that the MDC Alliance Agreement constituted the entire agreement of the parties to it, but did not spell out the legal status of the MDC-Alliance.
“It says nothing about whether it is a legal persona with power to sue and be sued or, whether it exists separately from the parties to it,” said Justice Chitapi.
“It is just a political cooperation agreement for contestation of the 2018 elections.”
Also in determining the legal status of MDC-Alliance, the court sought to find if the party had any instrument of incorporation. Justice Chitapi found nothing tangible was placed before the court.
The judge, however, conceded that MDC-Alliance might be properly called a political party because of the definition of a political party given the Electoral Act definition of a political party, but found that MDC-Alliance did not have any written instrument governing how it is constituted or operates.
“If such document is there, then the first applicant in its wisdom withheld it from the court. If it is not there, then I am left in the dark as to what juridical personality to accord to the first applicant,” he said.
The court also queried how the element of having MPs sponsored by the alliance plus the party’s recognition by the entire world could then confer juristic status on the party.
“I am not aware of any law which provides that by the mere fact of a voluntary association being a political party, such status makes it a juristic entity endowed with power to sue or to be sued or to have such capacity,” he said.
The Constitution gives every citizen a right to form, join and participate in the activities of a political party. But does not speak to the juridical nature of a political party. The Electoral Act does not do so either. Justice Chitapi said what was beyond reproach is that a political party is a voluntary association.
“The voluntary association should constitute itself in a manner that it assumes legal personality. First applicant as already noted failed to do so,” he said. To this end, Justice Chitapi said once the MDC Alliance case is thrown out on the grounds of lack of capacity to sue, then Chidziva and Mariga suffer the same fate.
Prof Madhuku’s main argument was that the court could not hear the case for two reasons, that a political party had no inherent constitutional right to sue on behalf of Members of Parliament and that the MDC-A was not a legal person, being just an umbrella body for a group of political parties.
Arguing for MDC Alliance, the main argument of Mr Alec Muchadehama and Mr Tendai Biti was that the MDC Alliance was the actual party that had sponsored the legislators in the election and that therefore the MDC-T, whatever its legal status, could not recall legislators since the MDC-A was now in fact, a party in its own right.
Commenting outside the court processes, veteran lawyer-cum-politician Mr Obert Gutu has been arguing from the outset the urgent chamber application was devoid of both factual and legal support.
Mr Gutu said MDC Alliance was not a duly constituted political party until and unless it has formally adopted its own distinct constitution and other relevant structures in accordance with the provisions of the Electoral Act.
“The chickens are coming home to roost. The law is the law,” he added.