Courts and the struggle for legitimacy

THE High Court ruling that Nelson Chamisa is not the legitimate leader of the main opposition MDC — coupled with an order compelling it to hold an extraordinary congress after 30 days — has triggered a raging debate on the need to adhere to the principle of constitutionalism.


The principle binds political players to stick to the letter and spirit of a constitution.

High Court judge Justice Edith Mushore delivered the ruling on Wednesday last week on a case brought by an aggrieved MDC official from Gokwe, Elias Mashavire, who challenged Chamisa’s ascendency to the helm of the party, saying there should have been an extraordinary congress to decide the party’s leadership in the aftermath of the death of its founding leader Morgan Tsvangirai in February last year.

Mushore also declared the appointments of Chamisa and Elias Mudzuri by the late Tsvangirai as co-vice presidents with elected Thokozani Khupe as null and void. She also said all Chamisa’s appointments are also equally invalid.
Article of the MDC constitution states that all members of the national standing committee, including the deputy president(s), are elected at congress. However, Tsvangirai in 2016 unilaterally appointed Mudzuri and Chamisa as vice-presidents.

Article 9.21.1 of the MDC constitution states that in the event of the death or resignation of the president, the deputy president assumes the role of acting president pending the holding of an extraordinary congress that shall be held to elect a new president. The extraordinary congress must be held no later than a year from the death or resignation of the former president.

The opposition party, however, failed to hold an extraordinary congress in accordance with its constitution.
Mushore ruled that the congress should be held using the party’s 2014 constitution. This means Khupe, who was the only elected vice-president, should be acting president in the run up to the extraordinary congress.
The judgement has, however, been slated in some quarters for its failure to recognise the current situation, which makes it difficult to enforce.

“It is as if the matter was placed before a panel that was in outer space between 2016 and now and was for that reason completely oblivious of the actual realities obtaining here on earth,” constitutional lawyer Alex Magaisa said of the ruling.

He also pointed out that the judgement was an embarrassment and was being used as a tool to significantly weaken the opposition.

It has been slammed as a judgement by a captured judiciary meant to weaken the MDC in favour of Zanu PF.

Analysts said the ruling is unenforceable as politics and events have shifted. For instance, Khupe held an extraordinary congress and contested the 2018 presidential elections under the MDC-T banner, suggesting Mushore’s order has already been complied with. Chamisa represented MDC Alliance as its leader in last year’s general elections, garnering more than two million votes. The alliance was a coalition of seven political parties. The MDC-T split again after Tsvangirai’s death in February 2018.

However, the failure by Chamisa to adhere to its constitution has given it hostage to fortune, according to political analyst Eldred Masunungure.

“It is clear that there were leadership problems before the death of their leader Tsvangirai which would explode into the open. The best way to address these leadership squabbles was to refer to the constitution by sober minds and see what it says and proceed accordingly by holding an extra-ordinary congress,” Masunungure said.

“Despite democratic deficiencies, at least Zanu PF knows of the importance of pretending to follow its constitution by the letter and going through the motions.”

Masunungure said Chamisa had overwhelming support and could have cemented it by holding the congress as stipulated by the party’s constitution and won resoundingly.

He said it was “puzzling” that the opposition party dispensed with such a process which would have ensured that Chamisa emerged as a popular and the undisputed leader of the party, with legitimacy and power.
Constitutional lawyer Derek Matyszak said the failure to adhere to the constitution is unfortunate as the party campaigned on the very basis of constitutionalism.

“The MDC campaigned on a platform of constitutionalism. The MDC is duty bound to stick to its constitution,” Matyszak said.

“It is very unfortunate that Tsvangirai appointed two vice-presidents in mid-2016 when there was no basis for it in the party’s constitution. The MDC constitution is very clear that the deputy president takes over until the holding of the extra-ordinary congress.”

He said Chamisa used Article 18 claiming that the national council was needed to clear the confusion created over who should take over from Tsvangirai now that there were three vice-presidents, a position Matyszak dismissed as “nonsense”.

Article 18.19 states that in any place where the requirements of the constitution cannot be satisfied because of an omission or oversight in draughtsmanship, or because a body provided for has not been, established, or an officer provided for in this constitution has not been elected or appointed, or because of a procedural problem; the national council shall have the power to make such arrangements which, in their opinion, satisfy the spirit of the constitution and shall seek approval for such arrangements at the next congress.

“There was no confusion created by the appointment of three vice-presidents. There was only one elected deputy president and that was Thokozani Khupe. The national council had no power to appoint Chamisa. Justice Mushore was quite correct that the appointments were null and void,” Matyszak said.

He said it was “absolutely vital” that the MDC should have complied with its constitution, pointing that the failure to do so has created the current mess the opposition party finds itself in.

“The MDC can clean up the mess by following the constitution and put Chamisa as acting president until they hold an extraordinary congress,” Matyszak noted.

Chamisa and his allies claim they followed internal party process to install the new leader.
However, political analyst Ibbo Mandaza says the judgement is an indication of the Zanu PF government’s level of desperation.

“I think the judgement is a farce. It is no enforceable,” Mandaza said.

“Zanu PF is in a mess and is divided. It is an embarrassment.”