Litigation as political action

THAT courts have jurisdiction over political matters is common cause. Lawyers generally agree on this. The only dispute they may have on this could be on specific cases, circumstances and extent of intervention.

Editor’s Memo,Dumisani Muleya

Otherwise a party, its leaders and members are free to approach a court of law over an internal dispute where its own constitutive document, rules and procedures may have been breached.

Further, where a party may have acted in violation of the rules of natural justice, its constitution or the supreme law of the land; indeed arbitrarily — the courts have a duty to intervene.

This is against some common wisdom in politics — sometimes pursued with crusading zeal — that party political matters ought to be resolved internally.

Although it may be helpful or wise to be cautious in muddled political disputes and toxic environments, the courts all the same have a role to play in resolving political disputes.

Rules of natural justice and constitutions, as well as the rule of law and horizontal application of rights between non-state actors, behove the courts to be involved.

The current Zimbabwean constitution places political parties within the scope of judicial scrutiny. Herein lies the case of the MDC-T.

High Court Justice Edith Mushore this week ruled that main opposition MDC leader Nelson Chamisa is not the legitimate leader of the party. She said an extraordinary congress must be held after a month using 2014 structures to elect a new leader.

‪The ruling also says the late founding MDC leader Morgan Tsvangirai’s appointments of two co-vice-presidents, Chamisa and Elias Mudzuri, in 2016 was unlawful, thus null and void. This means Chamisa is illegitimate and that his rival Thokozani Khupe — who also insists she is leading the authentic MDC-T without occupying its headquarters and being in control of its assets — is actually the bona fide leader of the party.‬

Courts are generally regarded as a neutral arena to settle disputes between rival parties who can’t solve their differences through other means of dispute resolution.

However, in this case greater attention must have been drawn to the role the court could end up wittingly or inadvertently playing in the MDC leadership race.

The court has to do its job, but it must have been careful not to stray into partisan politics or be used to further agendas of some interested parties. It must also be wary to avoid becoming a vehicle for political participation and agitation through the back door.

Most importantly, courts must avoid capture and being used as political instruments by dark forces in such power struggles.

It’s pretty clear that applicants in the MDC case want to use the courts to fight their own political battles. They want to ensure political participation and action by litigation. In other words, use the courts to further their political ambitions and agendas. That can’t be the duty of judges.

Context matters. Those behind this case had all the time since Tsvangirai’s death to approach the courts, but strategically waited for the moment after Chamisa had been overwhelmingly nominated to succeed him at the party’s impending congress. So they played their trump card — litigation — at the eleventh hour and the court obliged.

Of course, Chamisa had seized power in a messy succession fight with Khupe after Tsvangirai’s death. He, however, says he used the party’s internal processes and mechanisms to secure the leadership, hence avoided the required extraordinary congress which should have been held by February 14. His rivals disagree.

Mushore’s ruling and order, which is vague, is difficult to implement given all that has happened since Tsvangirai died. The MDC and national political situation have radically changed.

Given that dramatic events —altering the political landscape and internal situation almost irrevocably — have now taken place since Tsvangirai’s departure, Mushore should have been more circumspect to avoid careless entanglement in messy politics, abetting political action by ligation and issuing brutum fulmen; an ineffectual judgment.