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CONVICTED rapist and Bikita West National Assembly member Munyaradzi Kereke (pictured) automatically lost his parliamentary seat by operation of the law after he was convicted of rape by Harare regional magistrate Mr Noel Mupeiwa on Monday.

The magistrate slapped Kereke with a 14-year jail term, but suspended four years.

There are no indications yet of whether Kereke will appeal against both conviction and sentence.

Legal experts said Kereke can only retain his seat if he successfully applies for bail pending appeal.

According to the Constitution, a conviction by a court of law is one of the reasons why an MP can lose their seat.

Section 129 (1) on tenure of seat of Member of Parliament states that the seat of a Member of Parliament becomes vacant: "1) if the member is convicted ( i) in Zimbabwe of an offence of which breach of trust, dishonesty or physical violence is an essential element; or (ii)outside Zimbabwe of conduct which, if committed in Zimbabwe, would be an offence of which breach of trust, dishonesty or physical violence is an essential element; and sentenced to imprisonment for six months or more without the option of a fine or without the option of any other non-custodial punishment, unless on appeal the member's conviction is set aside or the sentence of imprisonment is reduced to less than six months or a punishment other than imprisonment is substituted."

University of Zimbabwe law lecturer Professor Lovemore Madhuku yesterday said Kereke's seat became vacant the moment he was convicted.

"There are two issues to consider, first is if a member is convicted of an offence where breach of trust, dishonesty or physical violence is an essential element. In this case, rape has elements of physical violence so on that score, the MP loses the seat given that he has also been sentenced for more than six months.

"So in this case, Kereke has already lost the seat by mere conviction and sentence of more than six months. The seat has become vacant by operation of the law," said Prof Madhuku.

Section 129 (2) states that: "A member referred to in subsection (1) (i) who has noted an appeal against his or her conviction may continue, until the final determination of the appeal, to exercise his or her functions as a member and to receive remuneration as a member, unless a court has ordered that he or she should be detained in prison pending the outcome of the appeal."

But Prof Madhuku said the provision did not mean that Kereke retains the seat by merely noting an appeal.

"Even if he appeals but remains in jail, the seat remains vacant. So unless he gets bail pending appeal, then he can retain the seat. The seat became vacant by operation of the law through his conviction. But he can also suspend that by operation of the law because the Constitution allows restoration of that seat if he gets bail pending appeal.

"So his greatest battle now is to get bail pending appeal. A mere appeal does not affect the seat becoming vacant because by appealing he is not guaranteed of a bail pending appeal," said Prof Madhuku.

An official at the Parliament of Zimbabwe concurred saying: "The seat became vacant by operation of the law. But he can reclaim the seat if he gets bail pending appeal.

"If he does not get bail then his conviction stands and the seat is declared vacant."

Source: The Herald