THE Constitutional Court (ConCourt) yesterday deflated MDC-T leader Thokozani Khupe’s bid to wrest the MDC presidency from Nelson Chamisa, after dismissing her challenge for being expelled from Parliament, where she represented Makokoba constituency and was leader of the opposition party in the House.
Khupe was recalled by the MDC in April 2018, three months before elections, which ended her parliamentary term.
She then took Parliament and the MDC to the ConCourt, a move which led to her expulsion from the august House.
Through her lawyer Lovemore Madhuku, Khupe had submitted that the MDC violated its own constitution by recalling her, and as such, Parliament ought not to have expelled her in the manner it did.
But in its determination, the ConCourt bench, led by Chief Justice Luke Malaba, ruled that her matter had been overtaken by events and was, therefore, a moot case.
“The court holds that the question of whether or not Parliament failed to fulfil its constitutional obligation with regard to the circumstances in which the seat occupied by the first applicant became vacant has been rendered moot by the occurrence of events subsequent to the making of the court application,” the court ruled.
“The matter no longer presents a live dispute between the parties requiring the court to hear and determine it in accordance with the principle of justiciability. In the result, the application is dismissed with no order as to costs.”
Specifically, the court said Khupe’s term of office as an MP had expired a day before polling day on July 30, 2018 when it “became irrefutably vacant and lost to her”.
In recalling her, Chamisa wrote to National Assembly Speaker Advocate Jacob Mudenda, saying Khupe no longer represented the opposition party’s interests as she was no longer a member of the MDC.
Madhuku had submitted that Khupe had been prejudiced of her benefits when she was “unceremoniously” expelled, adding she was mulling suing for damages.
But Parliament’s lawyer Thabani Mpofu argued that: “There is no dispute to be resolved in this matter and, as such, the court cannot deal with it. If the first applicant (Khupe) claims she unlawfully lost her seat in Parliament, she can bring her claim for damages to the High Court and not to seek pronouncement of this court. As far as the first and second respondent (Parliament and Mudenda) is concerned, there is no dispute between the parties.”
The ConCourt ruling could have a bearing on a separate case at the Supreme Court, where Chamisa is fighting a ruling of the High Court which would restore the leadership of the MDC to the February 2018 settings when MDC founding leader Morgan Tsvangirai died.
Chamisa’s lawyers argue in the Supreme Court case that the matter is now moot, after Khupe and Chamisa separately contested the July 2018 elections — Chamisa leading the MDC Alliance and Khupe as leader of the MDC-T.
Judgment is pending in the Supreme Court case.