pic. Prof AGO Mutambara and Prof Jonathan Moyo and Emmerson Mnangagwa the man behind the projectSenator Coltart correctly observes that “in any democratic country the office of Speaker is crucial in establishing and maintaining the integrity of Parliament.”
Despite his gloating about Paul Themba Nyathi’s integrity Zimbabweans know that Paul Themba Nyathi was the ringleader in the MDC split of 2005 and was uncompromising in articulating his ideological differences with Morgan Tsvangirai and those that remained loyal to him.
That is not the hallmark of neutral person. He is bigoted, dogmatic and pedantic in his approach to issues of conviction and would have made a speaker in the mould of other bigots like Didymus Mutasa.
Many Zimbabweans sighed in relief when they learned he had been soundly defeated in the Speakership election.
It is not clear on what basis did Senator Coltart believe a faction with a paltry 10 MP’s in a 210 chamber would win an election for such an important position as the Speakership given his denial that the faction not coalesced with either of the two Parties that had most of the seats.
“In other words notwithstanding the joint history and the support given to Morgan Tsvangirai's candidacy in the runoff, much of the focus of the negotiations was on the intra MDC party dispute, rather than on presenting a common front against ZANU PF,” revealed the Senator.
But earlier he had supported an opinion by faction Secretary General that suggested the faction would not be negotiated for by anyone and had severed ties with Tsvangirai the minute he pulled out of the runoff.
What support did Tsvangirai get from the faction in a runoff campaign that never was? Senator Coltart must not forget that we have not forgotten the resolutions of his faction on 20 August 2008 that supported the Zanu PF position in power sharing negotiations than it did Tsvangirai.
In any event by trying to land the most powerful position in Parliament the faction was trying to stage a coup on Tsvangirai’s MDC with the most Parliamentarians elected to that August House.
The desire to oust Tsvangirai and or outdo his MDC Party has been the bonding that gel the faction leadership. It will always be paramount on the faction’s political agenda for as long as Tsvangirai remains at the helm of the Party.
“A sizeable number of MDC T MPs were very happy that he had been nominated and indicated that they would vote for him,” falsely claimed Senator Coltart.
Which ones in particular would want to defect to a faction they had trounced in elections in constituencies it had bragged unrivalled support hitherto?
The only defections that are rational and are unavoidable are from the MDC PF faction to the more popular MDC led by Tsvangirai if those that got elected this time around entertain any chances of being re-elected in the next elections.
“Ironically the response from ZANU PF was that they believed that the MDC T would not be able to get more than 96 of its MPs into Parliament (because of their understanding that 4 MPs were in either exile or in hiding) and because of this they would be able to elect a ZANU PF MP as Speaker. It was only at 10 a.m. on Monday the 25th August 2008 that we learned that ZANU PF were not going to put up a candidate (when they realised that the MDC T had managed to get virtually all its MPs into the House) and that they would vote for Paul Temba Nyathi,” stated Senator Coltart.
Nothing can be further from the truth than this crap. The only reason why the MDC PF was bold enough to field Paul Themba Nyathi was because they had been assured of Zanu PF support.
Added to that was the assurance the faction had been given that the 4 MDC MP’s in hiding would be arrested on sight at Parliament therefore Nyathi had an assailable backing from the Zanu PF and MDC PF MP’s even if a few Zanu PF MP’ decided not to vote for him.
“On the evening of Sunday the 24th August a meeting of the MDC T Parliamentary caucus was held and its members were threatened with expulsion and the loss of their Parliamentary seats if they voted for Paul,” Senator Coltart disclosed.
But we are too familiar that it was infact his faction that resolved that on 20 August 2008 to gag its MP’s who had protested the pact with Zanu PF and threatened them with expulsion if they did not tow the line by voting against Nyathi.
“If anyone doubts the truth of this the fact remains that when the vote for Speaker was conducted MDC T MPs were obliged to show their ballots to MDC T MP and Vice President Thoko Khupe prior to voting.
There is both video evidence and the testimony of MPs to support this allegation. I understand that the allegation is not even denied by the MDC T; one MDC MP spoke at a meeting with church leaders in Harare last week and confirmed the allegation. They were forced to disclose their vote because of the well founded fear that many MDC T MPs would vote for Paul,” he further disclosed.
That opened and closed the case as far as the Senator was concerned. But of course the testamentary MP from the MDC T’s name is not disclosed because there is no such testimony in Coltart’s hands.
Further the video evidence he alludes to is not in the public domain and whoever has it is now supposed to doctor it to reflect this version that MDC T MP’s were coerced to show their ballots to Thoko Khupe.
It would be interesting to watch the video and hear the words Thoko Khupe used to coerce the MP’s to disclose to her who they had voted for. In any event even if they did, which has now been denied in opposition papers filed of record, the applicants still have the onerous burden of proving that those that disclosed the vote would have voted otherwise.
Since they are falsely alleged to have disclosed marked ballots, it is evident the mark was not placed under supervision by anyone and in any event the voting had already taken place in secret before it was published.
No sane Court can be expected to accept the trivia that voters were persuaded to vote as they did in the privacy of a booth exclusively reserved for their use when voting by threats of expulsion from the Party they represented in elections that were marred by violence which have no viva voce or written evidence of having occurred.
Assuming for once the ballots were published as alleged by applicants, which has been denied under oath, applicants still have to prove that the numbers that did so were substantial enough to have altered the outcome of the election in their favour if they had not displayed their vote.
The applicants also have to prove beyond reasonable doubt that they were prejudiced in any material way by the outcome of the election deserving of restitution in the form of the remedy they seek.
If they seek nullification of the result they will have to seek a further remedy of either declaring the looser winner or alternatively a rerun of the election under secretive conditions which are no longer possible to recreate in a Parliament where it is known that Zanu PF MP’s voted for Nyathi and will do so again in the rerun and likewise MDC MP’s for the MDC candidate.
The Court is unlikely to entertain an application that seeks leave of the Court for Professor Mutambara and his National Executive Council to discipline or threaten to discipline MP’s in its control for having voted against a candidate from their formation as that would set a dangerous precedent in Parliamentary democracy and defeat the very cause upon which the application is premised.
The applicants have the near impossible mission to convince the Court that the action they have resorted to is representative of the common position of Parliament on the election given that they are rooting for a loser, who personal has not complained about the election process nor has signalled support for the ill conceived application.
To succeed they need to produce affidavits showing that Parliament in its majority is against the outcome of the election which is impossible given two of the applicants represent a minority faction in parliament with inadequate numbers to win an election unless they have proof that they have support of Zanu PF MP’s who will not vote in any other direction in the privacy of a secluded booth and the other is a lonely independent MP.
More challenging will be the onus on the applicants to convince the High Court that it has jurisdiction over Parliamentary disputes given the precedent of the Dzikamai Mavhaire, “Mugabe must go” jibe, the Sydney Malunga “you are all morons” snide, the Margret Dongo “you are Mugabe’s wives” accusation and most pertinently the Chinamasa/Mutasa/Bennett fiasco and how they were disposed of by Parliament.
Because of its Constitutional existence Parliament like the Presidency and the Judiciary, is impossible to prosecute in public courts before domestic remedies in its constitution have been exhausted.
To challenge an internal parliamentary electoral process in open court will be impossible unless remedies in its Privileges Immunities and Powers which are recognised in the Constitution have been exhausted by the aggrieved.
As an example, the High Court has on numerous occasions refused to entertain applications by aggrieved employees on nothing else than that they have not exhausted remedies in their Codes of Conduct or the Labour Court, which is far less compelling than the Parliamentary Privileges and Immunities that the respondent Speaker has invoked.
The case will collapse at this early hurdle in its way and it will not be necessary for the Court to enquire into the merits of the matter.
Another issue unfavourable to the applicants is the reputation of Prof. Jonathan Moyo. He is highly litigious and is involved in multiple cases before the High and Supreme Courts and may attract a debilitating Court Costs Guarantee for this ill advised matter before he is entertained.
After losing this cause Prof Moyo must expect backlash litigation over his unresolved cases involving misappropriation of public funds at the Ford Foundation in Kenya and as Minister of Information.
A Tsvangirai led government will not stop his extradition to face trial in Kenya if Prime Minister Odinga requests same.
Coltart must be prepared to disclose the nature of financial moral and political support he landed Tsvangirai during the runoff and may end up in the dock for the nefarious activities he undertook under the false pretence he was fundraising for Tsvangirai.
The other two co-applicants must realise that their current action will be recounted when next they seek re-election and the prospects of re-election are remote.
Finally if Coltart did not enjoy fomenting the animosity he has through his ill conceived attempt to reverse a people’s rare Parliamentary victory he must be prepared for the ripple effects.
In functional democracies people do not expect losers to take charge of determining how power devolving from the electoral process will be exercised and by whom it will be exercised as they will have decided that.
For Coltart to endorse the involvement of losers in his faction in power sharing negotiations over people’s will is a indictment of what kind of a democrat he is.
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