THE MDC has been mired in an entanglement, recently described in the judgment by the Supreme Court as an imbroglio.Accusations and counter accusations are being thrown around between factions and individuals within the MDC, at the judiciary and at the ruling party, Zanu PF.
What I have observed since the original party was formed is perpetual blame on Zanu PF for all the ineptitude within the MDC. Everything that goes wrong is blamed on Zanu PF, and its supporters are made to believe every grain of it.
While I have always known and predicated the influence or control of Zanu PF over the judiciary, and its manipulative deviltry, it is ironic and disingenuous for the MDC to always blame Zanu PF for its own ineptitude and charlatanism.
When Welshman Ncube split with Tsvangirai in 2005, and took away the MDC name and logo, supporters were told that Welshman was a CIO operative, who had been planted by Zanu PF to split the MDC.
Tendai Biti split with (or was expelled by) Tsvangirai in 2014, and he was again labelled a Zanu PF (CIO) agent. Yet today they are back in the leadership of the very party that accused them of being agents of Zanu PF.
After the harmonised elections in July 2018, MDC petitioned the Constitutional Court challenging Mnangagwa’s electoral win, and the country and MDC supporters were told that there was indisputable evidence which would prove that the elections had been rigged.
According to MDC Alliance and Chamisa’s counsel, Thabani Mpofu, before the hearing, there were thousands of copies of primary evidence (V11s). However, there was no such evidence submitted before the Constitutional Court (ConCourt), save for 3 V11s, yet the court was still expected to make a determination in their favour.
The court dismissed the petition, saying that the MDC and Chamisa had failed to submit primary evidence of vote rigging by the Zimbabwe Electoral Commission (Zec), and had also failed to demand a vote recount, or the reopening of the ballot boxes, as per electoral laws.
The ConCourt said the burden of proof was on the petitioners. Before the hearing, the MDC had confidence in the judiciary, and they boasted that they would definitely win the petition. But soon after the judgement, the song of a captured judiciary was played, and supporters religiously echoed.
In 2016, Patson Murimoga, and George Rice, members of the MDC launched a challenge in the High Court against the MDC and Morgan Tsvangirai, for appointing Nelson Chamisa and Elias Mudzuri as deputy presidents in violation of the MDC constitution.
Following the court challenge, Murimoga had to go into hiding from his home in Chitungwiza, after threats on his life and that of his family from MDC activists.
The High Court dismissed the challenge on a technicality, ruling that the petitioners had no locus standi. Because the High Court had ruled in Tsvangirai’s and MDC’s favour, there was no mention of the courts being captured.
In February 2018, Thokozani Khupe was recalled by the MDC from Parliament, where she represented Makokoba constituency. She took Parliament and the MDC to the Constitutional Court, challenging her recall. The ConCourt dismissed her challenge, on grounds of mootness as her parliamentary term had since expired the day before polling day.
After this judgment, no one in the MDC accused the judiciary of being biased or captured by Zanu PF because the judgment was in their favour.
In February 2020, Job Sikhala was acquitted by a Masvingo court and there was jubilation in the MDC, citing the impartiality of the courts. Had he been convicted, one would bet, the court would have been accused of being captured by Zanu PF.
Fast forward to the recent Supreme Court judgment, the court dismissed the appeal by Chamisa and upheld an earlier judgment of the High Court, nullifying Chamisa’s ascendency to power as unconstitutional.
Immediately, social media was awash with comments accusing the judiciary of being captured by Zanu PF, and this time the party chairperson, Morgen Komichi and Douglas Mwonzora became part of the Zanu PF machinery sent to undermine Chamisa and the MDC.
Because they accepted the judgment of the Supreme Court, they became CIOs in their speeches post judgment. Ironically, none of the MDC-A leaders, most of them, seasoned lawyers, interrogated the legal arguments in the judgment. Flimsy and flawed analyses were proffered, which were clearly devoid of legal illation and were more of political analyses than legal.
The MDC is led by more than five prominent lawyers, one of them a professor of law, yet it has perennially botched up, both administratively and legally. They knew very well that Chamisa violated the constitution when he usurped power in the MDC after Tsvangirai’s death, but they turned a blind eye, instead of advising him to do the right thing and follow the party constitution and democratic processes. They knew what the outcome of the Supreme Court appeal would be, because they knew that their submission before the court was flawed.
But they still want to blame everyone else but themselves. They now lie to their supporters that the judgment is moot and has no bearing on the MDC Alliance, as it is a separate and independent party, which held its Congress in 2019.
Their argument accusing the Supreme Court of failing to acknowledge that the case had been overtaken by events, and Chamisa was the voted President of the MDC Alliance, and is in effective control of the party, to me, appears quite hypocritical. It is ironic that the MDC leadership continues to accuse Mnangagwa and Zanu PF of being illegitimate, and refusing to recognise his authority as President of Zimbabwe.
Now, if Mnangagwa lacks legitimacy, despite Chamisa failing to prove it in the ConCourt, and he and MDC refuse to acknowledge that it is a case that has been overtaken by events, why then do they want the courts to acknowledge Chamisa’s illegitimacy on the same basis?
When the High Court made its determination on the Masvavira challenge to Chamisa’s usurpation of the leadership of the MDC, they were preparing for their Congress. Chamisa and the MDC (not MDC- T), appealed against the judgment, citing 11 grounds of appeal. What is curious was the 10th ground of appeal. Chamisa and the MDC, as appellants, stated their 10th ground as follows:
The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with first appellant’s constitution and is totally unworkable either in fact and or in law
Despite the MDC Alliance leaders and pundits claiming that the Gweru Congress was an MDC-A Congress, in the appeal, both Chamisa and the MDC party claimed that the pending Congress was the MDC Congress, and they implored on the Supreme Court to dismiss the High Court judgment and resultant order, which was meant to compel the MDC to convene an extraordinary congress, on that basis. This is corroborated by the press conference by Nkululeko Sibanda at Harvest House, and the address by Chamisa at the Gweru congress as already stated.
If the MDC Alliance is the party that held the Gweru Congress, then Chamisa and the MDC misled the Supreme Court, thus lied under oath, by claiming that the pending Congress was an MDC Congress. If the MDC-A was a separate party, with no link to the MDC, Chamisa would not have appealed the High Court judgment, since he was now President of the MDC Alliance and had nothing to do with the MDC, which had been ordered to convene an extraordinary congress.
A MDC Alliance legal pundit, writing soon after the High Court judgment in May 2019, affirmed that, “the court did not even consider the fact that there is a congress duly scheduled to run later this month – which, if anything, will correct whatever defects might have been found in prior processes”.
This confirms that the congress was an MDC congress, not MDC Alliance congress. One wonders why Chamisa had approached the Supreme Court, if the judgment would have been known to be ineffective.
Why did he even bother to appeal a High Court judgment that was “brutum fulmen” (an ineffectual legal judgement)? It appears that the purpose of the appeal was merely to wade off the judgment so as to enable them to hold their congress, which was pending, in the hope that the congress would correct the illegalities of Chamisa’s usurpation of power.
If the Gweru Congress was an MDC-A congress, why was it celebrated as the fifth MDC elective congress? Why was it celebrated as the 20th MDC anniversary? Have they forgotten that the MDC led by Chamisa, whose leadership he unconstitutionally usurped, is the major party in the coalition of seven parties forming the MDC-A? Are they forgetting that the MDC-A headquarters they are using was the MDC headquarter wrestled by Chamisa from Khupe, who was the ideal and constitutional leader to take over at the death of Tsvangirai?
MDC-A does not even have a constitution of its own, but uses the original MDC constitution, as it did at the fifth MDC congress in Gweru.
Thus MDC-A cannot be extricated from the imbroglio of the MDC, and the ensuing Supreme Court judgment. For a bunch of prominent lawyers to be in such denial, only one or more of the following justifications is plausible. They know they are driving the party astray, either, for selfish reasons, they are the actual Zanu PF agents as they were previously accused, or they are simply not the brilliant lawyers they appear to be.
It is common cause that when Chamisa usurped the MDC acting presidency, he took the larger chunk of the MDC leadership, and membership, when they split with the Khupe led faction. He also took with him, the structures, offices, vehicles and the party’s goodwill, left by Tsvangirai. It is this chunk of the MDC that Chamisa incorporated into the MDC Alliance. It is this chunk of the MDC that is rightfully and legally impacted by the Supreme Court judgment.
While they called it a brutum fulmen (ineffectual legal judgment), the Supreme Court judgment will inevitably have devastating ramifications on the MDC-A, despite the confidence of popular support.
There is a legal principle in the law of tort, called Contributory Negligence, where if a person was injured in part due to his own negligence (his negligence having contributed to the injury), he would not be entitled to collect (full) damages from the party that supposedly caused the accident.
While this principle applies in the law of tort, I have observed this principle as appropriate in many of the MDC’s legal challenges and internal squabbles, albeit literally. Most of the problems in and around the MDC and its aligned factions, are the result of its own failure to adhere to its constitutional and democratic principles.
The MDC needs leadership that is rational, mature and humble. The use of emotions and egotistical behaviour will not take it to State House. Their options are to either abide by the court judgment and order, or rebrand, starting a totally new party unhinged from the MDC name.
A sober approach is required at this instance!
l Read Chando’s full legal argument, which we will publish on Friday on www.theindependent.co.zw
Chando is lawyer, political analyst and commentator on International Law and Politics. Email: email@example.com