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Before his downfall, a man’s heart is proud, but Humility comes before Honour- The MDC Supreme Court Judgment

It has been a month and the Supreme Court judgment on the MDC case has come and gone, but questions remain in people’s minds. Was the judgment just and fair, given the material facts and evidence presented before the Supreme Court? Will the judgment have any major effect on, and consequences for Zimbabwe’s political turf in general, and the MDC in particular?

Jonathan Chando

In response to the judgment, there were rather irate pronouncements from Tendai Biti (MDC-Alliance vice-president), Welshman Ncube (MDC-Alliance vice-president), David Coltart (MDC-Alliance Treasurer) and others, all berating the judgment and insinuating that the judgement was the work of Zanu PF and that it had no effect on the MDC-Alliance (MDC-A).

Tendai Biti on his Twitter handle, wrote, “Let’s make it clear this point once more for the umpteenth time. The MDC-Alliance was not a party to the Supreme Court litigation. It was neither an appellant nor a respondent.

Judgment does not bind us. It is brutum fulmen (an ineffectual legal judgement). Adv Chamisa is our President. Our next Congress is 2024”.
Welshman Ncube, in turn wrote, “Legally, the MDC-A was not before the court and cannot be bound by a judgment to which it is not a party and which in any event is not directed at it. Politically, the people Always decide. Period”.

David Coltart, in an article he penned in response to the judgment, stated that the judgment was moot and academic and the court had accepted that. He also queried the timing of the judgment as the courts were not handling trials due to the coronavirus pandemic, save for urgent matters.

There have also been articles by political and legal pundits, some of them aligned to the MDC led by (Nelson) Chamisa, in the past weeks, giving what they called critical analyses of the judgment. Most of the articles appeared to blame the whole constitutional dispute within the MDC as brought to the courts by MDC members, on the judiciary. It may be noted that this was a case brought to the courts by a disgruntled member of the MDC.

While I have been reluctant to make an analysis of the judgement itself, as I have been feineant (idle) in the advent of this Covid-19 pandemic, I have observed that a lot of the rants, berating, and commentary about the consequences or lack thereof, of the judgment on certain individuals and or political formations, pointed to the fault of the judiciary, relative to its association with Zanu PF, and that it was no fault of the MDC at all.

I will not vouch for the judiciary, nor will I extricate Zanu PF from suspicion, as I have written extensively, about Zanu PF’s putschist politics, transgression on constitutionalism, and democracy as well as its misplaced and corrupt economic mismanagement.

There is no doubt that Zanu PF is happy with the developments regarding the MDC rivalry, and would use the chance to fuel the fire. However, I find it curious that there is always a concerted effort to apportion all the blame on the referee (judiciary), who was only approached by parties of an organisation, seeking a resolution to their internal constitutional dispute, without interrogating the contents of the judgment in the context of the illegalities within the MDC itself.

The MDC has scored many own goals and handled the ball in their own penalty box, but they always want to blame the referee for awarding the penalty to the rival team. Whether Zanu PF is meddling in the MDC internal struggle or not, it does not take away the fact that the MDC itself is the creator of its own confusion, and any rival party would take advantage and work to help worsen the problem. When Zanu PF was splitting in 2014 and 2017, MDC was in jubilation because it was to their advantage.

I have observed that, in all the criticism or affirmation of the Supreme Court judgment and the ensuing order, there has been no voice disputing the illegality and unconstitutionality of the usurpation of the acting presidency and consequent presidency of the MDC by Chamisa. The issues of contention, which I have observed, however have been about:

Locus standi — the contrast between the dismissal of the Murimoga vs Tsvangirai and the allowing of the (Elias) Mashavira challenge, relevant to locus standi.

Delay by Mashavira in approaching the courts.

The contrast between the Mashavira and the Bhasikiti cases, relevant to exhaustion of internal remedial processes before approaching the courts.
Whether the Supreme Court judgment was moot and academic.

Whether the timing of the controversial judgment during the Covid-19 lockdown was curious.

Whether the judgment is capable of being successfully enforced and its consequential effect on the MDC-A.

Balance of politics and constitutionalism, or populism versus constitutionalism.

In response, I will interrogate these issues of legal contention and present what in my opinion would be a credible analysis relevant to the judgment and ensuing order of the Supreme Court. I will then interrogate the issue of balancing politics with constitutionalism, or rather populism versus constitutionalism.

The right to bring action by Mashavira- locus standi

Criticism has been thrown at the High Court, for determining that Mashavira had the capacity (locus standi) to bring an action against the MDC, Chamisa and the other respondents, and the Supreme Court, for upholding the High Court decision to that effect. The reasoning behind the criticism was that the High Court should have dismissed Mashavira as it did in Patson Murimoga and Another vs Morgan Richard Tsvangirai and 4 Others HH635/17.

It may be noted that it is basic law that a court is not bound, where it is faced by two conflicting decisions of its own, involving different circumstances and different facts; it must choose which decision to follow.
In the Murimoga case, the High Court dismissed Murimoga’s application on a technicality, as Murimoga had not adequately substantiated his membership of the MDC, hence he had no locus standi to take action against the MDC, Morgan Tsvangirai and Others.

In contrast, Mashavira substantiated his membership of the MDC, and went on to prove that he held the post of MDC organising secretary for Sesame District in Gokwe, which was ironically confirmed by one of the respondents in the challenge, Morgen Komichi. Resultantly, the High Court correctly determined, and the Supreme Court upheld, that Mashavira had locus standi. I therefore find the criticism of this decision ironic and disingenuous, thus leaning more on political than legal reasoning.

Delay by Mashavira in approaching the courts- acquiescence
The appellants in the case, had argued that the court dismiss Mashavira’s case on the basis that he had taken too long to challenge the appointments of Chamisa and Mudzuri, by Tsvangirai. The appointments were made in 2016 while Mashavira approached the High Court in 2018, about two years later, and they argued that quiescence amounts to acquiescence.

The Supreme Court acknowledged that many developments had taken place within the Party since the second appellant was appointed as deputy president and later as acting president and, more recently, as the party president.
The Supreme Court upheld the decision of the High Court, which found that:
“The first Respondent came to realise his right to challenge the party leadership after he had read a legal opinion rendered by senior counsel, on the instructions of the party, when a dispute arose between the three deputy presidents.

Based on this finding, I agree with the learned judge that it cannot necessarily be inferred that the first respondent was aware of and acquiesced by his conduct to the appointment of two additional deputy presidents in 2016. He only became aware of the relevant constitutional legalities in 2018 and acted within a reasonable time to mount the application a quo in September 2018.”

This however was chastised by some legal pundits aligned to the MDC, arguing it to be absurd that both the High Court and Supreme Court accepted the lame explanation in coming to their decisions. It was argued that both courts were fully aware from the record that Patson Murimoga had tried to launch legal proceedings soon after the appointments in 2016, which had failed on a technicality. It therefore, according to the pundits, did not require “supreme intelligence for any party member, let alone an officer of the party as Mashavira was, to know that anyone had the right to take legal action back in 2016”.

I would respectfully disagree with the assumption that because there had been a challenge by Murimoga in 2016, Mashavira was, or ought to have been aware of his right to challenge the party leadership. Firstly, the fact that Murimoga’s challenge had been dismissed on a technicality, well before the case was heard, would leave any legally in-erudite person, with the belief that a challenge would be futile, as they would not be conversant with such legalities.

Secondly, it is quite evident that in the present, many, in the leadership, the rank and file of the MDC and the general supporters do not even understand the legal complexities that their party is facing, let alone being able to know about their legal rights, save for those who are legally qualified, or can afford legal counsel. It is therefore illogical to argue that Mashavira would have known that he could challenge the appointments, before being made aware of the legal opinion rendered by senior counsel of the MDC. I view the court’s decision to allow his challenge, to have been rational and prudent accordingly.

The contrast between the Mashavira and the Bhasikiti cases, relevant to exhaustion of internal remedial processes before approaching the courts:

I have observed some imputations by MDC aligned legal critics suggesting lack of consistency in how the judiciary deals with disputes between members and their political parties, which they say, exposes the judiciary to charges of institutional bias concerning how it deals with the opposition compared to the ruling party. While I will not delve into an argument about institutional bias, relevant to the judiciary (which may be a discussion for another day), in my analysis of the judgment, I agree with the Supreme Court’s decision disallowing the argument of exhaustion of internal remedial processes, as brought by the appellants, and I see no bias by the court of instance.

While the court affirmed that the general rule is that an aggrieved member of any voluntary organisation must first exhaust internal or domestic remedies before approaching the courts, it emphasised that, the adequacy of such domestic remedies is a question of fact that must be established by evidence.

The Supreme Court upheld the decision of the High Court, handed down on the basis that, “the factual reality on the ground was that the second and third appellants herein were effectively in charge of the Party leadership and hierarchy. Following the special meeting of the National Council held on 15 February 2018, at which meeting the first appellant was reaffirmed without demurrer as the acting president, there can be no doubt that he was the apparently unopposed and chosen leader of the party.

Given this scenario, there is little to indicate that the court a quo misdirected itself in holding that the first respondent could not and would not have found any comfort in pursuing the internal remedy theoretically availed under Article 14 of the Party constitution. There was no point in invoking domestic remedies that had been both politically and practically undermined”.

For Mashavira, the internal remedial process had been duly compromised, as the authority (National Council, and Chamisa) who were meant to preside over his challenge to the unconstitutional usurpation of power by Chamisa was the same that had participated in that usurpation. It would therefore be futile to present his challenge on the illegality, before the orchestrators of the same illegality.

Whereas, in the Bhasikiti case, there had been no change in the organ dealing with such remedies. It was the same organ of the party that had been there during his tenure in the party, and there was therefore no evidence of potential compromise. The same remedial organ had been in existence while he was a senior party member and he had been acquainted with and participated in its processes all along, without expressing discontent.

It is my respectful observation that the Mashavira and Bhasikiti cases, while similar in their requirement for exhaustion of internal remedial processes, they are dissimilar in their circumstances and material facts, and the Supreme Court correctly upheld the decision by the High Court in dismissing the requirement for internal remedial processes in Mashavira.

Whether the Supreme Court judgment was moot and academic.
The issue of mootness, and the academic nature of the judgment has been the greatest subject of debate across the Zimbabwean society in general, and the MDC fraternity in particular. Soon after the judgment, social media was awash with pronouncements of the mootness of the judgment, including from senior MDC leaders, who are seasoned lawyers of note.

I had not read the judgment when I received messages from friends, (some who are ardent MDC supporters), while busy at work, to the effect that the judgment was purely moot and academic. I have also read an article said to be an analysis, which chastised the judgment, thus alleging that the case was moot and academic and the Supreme Court should have declared it as such. The article went on to give an example of a case where a legal challenge is launched on behalf of a student who is at school and by the time the case gets to be heard in court, the student would have already graduated, and such a matter becomes hypothetical as it would have no practical effect on the former student.

However, there is a problem with that example, because the legal analyst did not explain the circumstances and material facts surrounding the cited student, which would make his case moot after graduation. I found such an example either poorly thought or poorly articulated in the context of the argument on mootness.

If the issue relevant to the legal challenge on behalf of the student was such that it had infringed on the student’s studies to the extent that his graduation would be negatively affected, and resultantly cause him to graduate with lower marks, such a case would not be moot and academic. The legal challenge would be drawn to finality, and not be declared moot.

Contrastingly, I would give the same example, with Chamisa being the student, who cheated in his exams, and managed to graduate and acquire a certificate. Another student would have then challenged Chamisa’s fraudulent graduation and this is the case before the court, and is not moot. The graduation should be declared null and void.

What is a moot and academic case?

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. As a rule, courts decline jurisdiction over such a case, or dismiss it on the ground of mootness. For instance, if there was a dispute over ending life support for someone and while the case is pending that individual dies, the case will be moot. Generally, this is a reason for a court to refuse to hear a case. Once, an issue has been made moot, discussion of it is said to be purely academic.

This is because certain decisions cannot be undone, so only academics seeking to analyse the situation will benefit from further discussion of that particular matter.

However, the moot and academic principle is not a magical formula that can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and academic, when there is an exceptional character of the situation and the paramount public interest is involved. Mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear an otherwise moot case where it is in the interests of justice to do so.

In Mashavira, the Supreme Court noted that it had become necessary in casu to answer to interlinking questions; whether the present matter had been overtaken by events and thereby rendered moot; and, if so, should the Court nevertheless render its definitive determination in the matter in the interests of justice. Justice Bharat Patel went on to state that, “It is at this juncture that I am confronted by what I perceive to be the ineluctable exigencies of realpolitik.”

Justice Patel went on to state, “There can be no doubt that the second appellant and his lieutenants are in de facto and effective control of the Party. There is nothing to suggest that the situation will not continue for some time or that the second appellant is likely to be eclipsed and supplanted as the leader of the party in the foreseeable future.”

He went on to state that he was “inclined to agree” with the appellants that the present matter had indeed been rendered moot and academic. Now let’s look at the meaning of the term “inclined to agree”. The term does not mean one has “agreed”, but that he is persuaded to agree, save for opposing factors that may be preventing him from full agreement, which may pull him away from agreeing. Justice Patel went on to explain that it was not the end of the matter, as the question that arose was whether or not the Court should nevertheless proceed to deliver its definitive pronouncement pursuant to his earlier determination of the substantive merits of the appeal.

As I have already articulated above, given the principle that mootness does not constitute an absolute bar to the justiciability of the matter, the court retains its discretion to hear a supposedly moot case where it is in the interests of justice to do so, and when there is an exceptional character of the situation and the paramount public interest is involved, and in this case it retained that discretion on the grounds which it expounded as below.

The Court acknowledged that Chamisa and his lieutenants were in de facto and effective control of the Party and that the Party is the main opposition political entity in the country, having secured 88 out of 270 seats in the National Assembly and 25 out of 60 seats in the Senate, at the last general election held in July 2018, and that it might someday be electorally elevated to become the ruling party in Zimbabwe.

The Court also affirmed that the party constitution enshrines its status as “a social democratic party whose core values shall be solidarity, justice, equality, liberty, freedom, transparency, humble and obedient leadership and accountability”.

The Court asserted that, given the above, and the fact that Chamisa’s ascent to the helm of the party was fundamentally flawed by gross constitutional irregularities, perpetuating that situation without appropriate correction would not only undermine the ethos and dictates of the constitution, but would also infringe the rights of all the party’s members to a constitutionally elected leadership. It would further operate to violate the founding values enunciated in s 3(1) of the National Constitution, to wit, the rule of law and its concomitant doctrine of legality as well as the principles of good governance.

The Court therefore found that its corrective intervention in the affairs of the party was a matter of significant public importance, not only in relation to the Party and its members but also as regards the governance of political parties generally. It was necessary that the Court should deliver its definitive pronouncement on the legitimacy of Chamisa’s ascent to the presidency of the party. It was further necessary to ensure that the leadership of the Party is constitutionally and lawfully ensconced.

To support his decision, Justice Patel cited Madzimbamuto v Lardner-Burke & Anor [1969] 1 AC 645, in which the Privy Council held that the United Kingdom retained full sovereignty over Southern Rhodesia, acts done by the de facto government of the territory should not be recognised. Lord Reed, writing for the majority, opined that the conceptions of international law as to de facto and de jure status were inappropriate where a court sitting in a particular territory had to decide on the validity or otherwise of a new regime which had gained control of that territory.

Accordingly, the usurping government in control of Southern Rhodesia could not, for any purpose, be regarded as a lawful government.

I have read criticism of the Court’s citing of Madzimbamuto, reference to the situation in casu, saying its inclusion was curious because it was not supported by a robust and nuanced application, which left one wondering why it was even brought in at all. I would respectfully disagree with such criticism, as the Court adequately referenced the effective control of the Party by Chamisa, in casu, as similar to the effective control of the country by the Smith regime in Madzimbamuto, which was nevertheless declared illegal. While the critic of the inclusion of Madzimbamuto argued that Justice Patel should have gone further to cite Ndlovu and Others v The Queen.

(Constitutional Position of Rhodesia)- Judgment No.138/68, in which the Appellate Division of the High Court of Southern Rhodesia had found that, despite the illegal way it had taken power through the Unilateral Declaration of Independence in 1965, and the negative view of the Privy Council in the Madzimbamuto case, it was now the lawful government. I find this criticism as either based on selective citation of the law, or ill-disposed.

It is common cause that the Ndlovu case was heard in a court under the jurisdiction of an illegal government, and was not taken to the Privy Council, and as such, its validity remained illegal, since, under the conceptions of international law, the de facto and de jure status were inappropriate where a court sitting in a particular territory had to decide on the validity or otherwise of a new regime which had gained control of that territory.

Had the Ndlovu judgment been valid, Southern Rhodesia would have been recognised by the United Kingdom, which remained the Sovereign, and consequently by the United Nations as a sovereign country. Southern Rhodesia remained illegal and under sanctions until April 18, 1980. Had the Ndlovu judgment been of relevance, on April 18, Prince Charles would not have lowered the Union Jack, to give way for the new Zimbabwe flag, declaring full sovereignty. We would have witnessed the lowering of the Rhodesian flag instead.

Therefore, this argument proffered by MDC legal pundits that the Supreme Court failed 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.

Chamisa petitioned the Constitutional Court challenging the election of Mnangagwa as President of Zimbabwe, failing to produce the evidence (V1s) he had loudly declared he possessed, and his petition was dismissed. Now, if Mnangagwa lacks legitimacy, despite Chamisa failing to prove it in the Con Court, 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?

Was the timing of the “controversial” judgment during the Covid-19 lockdown curious?

There has been a widespread outcry from the MDC leadership, supporters, aligned pundits and some in the general public, about the timing of the judgment, which came while the country was on lockdown, and courts were only dealing with urgent cases. This criticism, in my opinion, is either simply disingenuous, aimed at stocking political meddling fears, or is based on lack of comprehension of judicial operation.

The courts are usually overwhelmed and under-staffed, to deal with the heavy caseload (not to absolve them of their faults). This is why the courts reserve judgments occasionally, so as to give them time to consider submissions and make determinations.

During the lockdown, when there are no trials, save for urgent cases, the judges then have time to revisit the cases whose judgments they previously reserved for lack of adequate time, and they can now pronounce their determinations. This case is one of those, whose judgment had been reserved, after hearing submissions and arguments.

The only issue remaining was for the Court to make a determination. It was therefore befitting that the Court deliver its judgment on the case during this period when there is no pressure on the bench. It may also be noted that this was not, and remains not the only case whose judgment was delivered on the day, or during the lockdown period. On the same day, the Constitutional Court delivered judgment in Gonese and Anor v Parliament of Zimbabwe & 4 Others (CCZ 4/20, Const Application Nos 57/17 &58/17) [2020]ZWCC, and the High Court delivered judgment in Stringer v Minister of Health and Child Care & Anor(HH 259-20, HC 2154/20) [2020] ZWHHC 259, both whose judgments had also been pending. There is therefore nothing curious about the timing of the judgment, in my respectful opinion.

What is the effect of the Supreme Court judgment on the MDC Alliance, if any?
A lot has been said in the past three weeks, about whether the judgment will have any effect on the MDC Alliance, with the leaders of the Alliance declaring that the judgment is a non-event, in Ncube’s words, and brutum fulmen according to Biti.

The MDCA, they said, is a totally different party, having participated in the 2018 general elections as MDC-A, and not as MDC or MDC-T. They also argue that the MDC-A held its inaugural congress in 2019.

The question that would immediately emerge therefore, is, “is the MDC-A a political party, separate from the MDC, or it is an alliance of parties which the MDC is component?” There have been conflicting statements, by Alliance leaders, with some of them making contradictory pronouncements at different times.

Nkululeko Sibanda held a press conference confirming that other parties within the alliance were dissolving to join the MDC. While addressing the Gweru Congress, Chamisa declared that it was the 5th MDC Congress and that Biti and Ncube had re-joined the MDC. He also asserted that they were celebrating the 20th anniversary of the formation of the MDC.

Jacob Ngarivhume of Transform Zimbabwe, a component of the MDC Alliance at elections, also confirmed that the MDC Alliance was a partnership of different parties which retained their identities. Douglas Mwonzora on the other hand, asserted that the MDC Alliance was a political party, only for the purpose of contesting in the 2018 elections.

I will not go into the requirements and legalities about whether the MDC-A is a registered political party, because in my view it is not even necessary. Whether it is a political party or an alliance of parties, the judgment has real consequences on MDC and MDC-A alike.

One cannot, however, exactly answer these questions without looking at the history of the MDC and all its resultant factions and splinter parties. Justice Patel correctly referred to the MDC as a party mired in an imbroglio, which can be traced back in the party’s history.

In 2005, Welshman Ncube parted ways with Tsvangirai, after a dispute on participation in Senatorial elections. Then, the Tsvangirai aligned members called Ncube a CIO agent planted to destroy the MDC. In 2014, when Tsvangirai’s youths assaulted Elton Mangoma and Tendai Biti, for demanding a succession plan, the latter broke ranks with Tsvangirai, citing the violent nature of Tsvangirai and his youths. Biti went further to mention that violence was not part of the MDC’s democratic principles and values, which the party sought to establish among the citizenry. Those aligned to Tsvangirai, again accused Biti and Mangoma of being CIO agents, spying on the MDC. The biggest problem with the MDC stemmed from its adoption of the putschist Zanu PF character, where the leader becomes bigger than the party.

It is common cause that Tsvangirai became the epitome of the opposition instead of the MDC being the more relevant institution for change.
When Tsvangirai appointed Chamisa and Mangoma, lawyers aligned to the MDC advised him that it was unconstitutional. This is confirmed by Alex Magaisa in his article on the Supreme Court judgment. Douglas Mwonzora asserts that he advised Tsvangirai to no avail. Eric Matinenga is also said to have advised Tsvangirai that he was in violation of the MDC constitution.

While those in the MDC hierarchy, close to Tsvangirai knew that he was violating the constitution, none of them had the courage to oppose him, because he was more powerful than the movement. That is the problem with populism, where an institution is turned into a cult, with the leader turning into a semi-god and resultantly an authoritarian, and anyone who challenges him becomes an enemy and a spy. What is interesting is that before he died, Tsvangirai had agreed to join forces with Ncube and Biti’s parties, to form a formidable opposition against Zanu PF, yet they had been labelled CIO spies. Had they now resigned from the CIO, or they had turned double agents? Only MDC can tell.

After the death of Tsvangirai, it is very well known that Chamisa usurped power unconstitutionally, resulting in their split with Khupe, who was the constitutional candidate to take over as acting president until the party held an extraordinary congress. Chamisa later challenged Khupe in the courts on the use of the name MDC-T and the logos, but withdrew the challenge on July 2, 2018, for reasons best known to him.

I have observed MDC Alliance leaders and aligned legal pundits claiming that Justice Patel made a mischaracterisation by wrongly conflating the MDC Alliance and the MDC-T, believing them to be the same entity.

While denying that it is the same entity, they curiously admit that, “what is known is that the legal deficiencies notwithstanding, and regardless of the controversial outcome of the 2018 elections, the party that Tsvangirai left performed beyond expectations and is still a great force to reckon with”.
Here they admit that the party that Tsvangirai left is the one that performed beyond expectations. Which party did Tsvangirai leave, the MDC-A (which they claim participated in elections) or the MDC, which Tsvangirai left?

The Supreme Court never heard any MDC-T case. The case heard by the Supreme Court was about the MDC. When the High Court made its determination on the Mashavira 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 a MDCA 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.
An 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.

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. Some of my learned friends have argued with me, that the party that went to the elections was MDC Alliance, therefore the MPs, mayors and councillors are not affected as they are registered under the MDC Alliance with the Zimbabwe Electoral Commission (ZEC).

When the seven parties that formed the MDC Alliance, went to the elections, they allocated constituencies and wards in accordance with alliance partners’ popularity with voters and ability to win the relevant constituencies/wards. Chamisa’s MDC grabbed the largest chunk of both constituencies and wards because of its record in previous elections, as MDC.

There is a time other parties complained that the MDC is holding primaries in constituencies and wards allocated to smaller parties, which is proof they had constituency and ward allocations according to parties. It is also evident that Ncube’s MDC-N grabbed a chunk of the Matabeleland and Bulawayo constituencies and wards, where it previously had won elections and had control. It is therefore those MPs, mayors and councillors who were elected under the quota of the MDC within the MDC Alliance, who will be subject to the Supreme Court judgment.

Whether they were elected under the MDC Alliance banner or not, they joined the alliance as a component of the MDC, which was before the Supreme Court. And these are the MPs, Mayors and councillors that Khupe, as the legitimate leader of the MDC, as confirmed by the Supreme Court, will have the power to recall, should they fail to comply with the order.

The fact that they were elected under the MDC Alliance banner as registered with Zimbabwe Electoral Commission (Zec) is irrelevant because Zec does not have regulatory powers over parties beyond the election period. Political parties retain control over their MPs and councillors, and they can recall them from Parliament or Councils. In this case, the MDC led by Khupe, as ordered by the Supreme Court has assumed that power over the MDC component of the MDC Alliance.

Can the judgment be effective and enforceable?

A lot has been said about the enforceability of the Supreme Court order, with many arguing that the order cannot be enforced because many who held the positions in the MDC at the death of Tsvangirai, may have moved on in life and may not be interested in complying with the order, by attending the extraordinary congress. Some went on to assert that the terms of the so-called leadership expired in October 2019, so the order cannot be enforced on them.

What is clear however, is that this is an order of the court, and an order of the court is law, and it must be complied with, failure which contempt of court kicks in, with consequential sanctions.

Those who held the relevant posts within the MDC before the death of Tsvangirai, are bound by the court order. While they may decline to participate, or be coerced to ignore, they will be held in contempt of court.
Those tasked with convening the extraordinary congress may go back to court for further guidance. It is also well known that when Chamisa unconstitutionally usurped power, he removed most of the provincial leaders, mayors and other post holders, and replaced them with those loyal to him, so as to consolidate his power.

While some of those removed then, had moved on, they still harbour discontent at the way they were removed, and would be happy to revert to their old posts. Some of them have been frustrated within the ranks of the MDC-A as they were perceived to have been working against the rise of Chamisa, hence their removal.

It has been reported that there have been moves to compel these former leaders, MPs and councillors to sign documents of allegiance to Chamisa. Whether this is true or not, time shall tell. Some have publicly appeared on social media declaring their allegiance to Chamisa.

However, should they decline to comply with the court order, they will be in contempt of court. There is a high possibility that MPs and councillors from the MDC component of the MDC Alliance will be subject to recall, as explained earlier, should they refuse to comply. Other members who previously held positions as ordered by the court, will be subject to sanctions by the court.
While a political party is a voluntary organisation and participation is voluntary, parties have rules that govern them, a constitution in the case of MDC, and should a member not comply with those rules, and the dispute is brought before the court, the court has jurisdiction to determine on such disputes, as embraced in the National constitution. Nothing will stop the Khupe led team from approaching the court for clarification and further determination on the way forward, should there be need.

Regarding the expiry of the terms of the previous executive, when the court made its determination to revert to the 2014 structures, this immediately cancelled the expiry of those terms, for the period until the convening of the extraordinary congress, which will then establish a new executive. The court did not have to spell that out in detail. So, the argument about positions having expired falls away.

It will be a difficult period going forward for both the MDC and the MDC Alliance, but the order will be enforced. What the order cannot do is to compel the membership aligned to Chamisa to support or become part of the Khupe led entity, but those in leadership at the death of Tsvangirai and current MPs and councillors, will be compelled to comply, then resign if they so wish, or be recalled.

Abandoning the MDC Alliance name and starting off with a new name altogether would be the best way forward for Chamisa and his followership, otherwise he will continue to be hounded by the ghost of any name related to MDC.

Populism versus constitutionalism

There is the argument that people cannot be forced to associate with persons that they do not want to associate with. Thus, according to the MDC aligned legal pundits, “the court does not have the power to force them to associate with anyone they do not want, because the people’s freedom to disassociate individually or in large numbers is a constitutional right”. This very much echoes the populist rhetoric which argues that politics should be an expression of the volonté générale (general will) of the people. Much as it may be true, these pundits have deliberately been selective with their arguments. While politics should be an expression of the will of the people, it is the people who voluntarily choose to regulate their own activities within their organisation, or as a state, so as to create and maintain order amongst themselves and their activities.

And when the leaders violate these rules, one cannot then argue against the corrective measures stipulated in the same rules as voluntarily created by the membership, or citizens. Politics creates the rules, and politics must adhere to those rules.

The MDC is a voluntary organisation, which was conjugated by voluntary association. Having been formed voluntarily, the party held its inaugural congress, at which a constitution was endorsed by the same voluntary members. They were not forced into endorsing the constitution. They voluntarily agreed to abide by that constitution, and the democratic principles and values as enshrined in that constitution.

The courts have no business meddling in the affairs of a voluntary organisation, save for when members of that voluntary organisation have approached them to resolve a dispute, where individual member’s rights have been violated. In that case, the courts have the constitutional jurisdiction to preside over such a dispute, and make determination as they find appropriate.

The MDC as a voluntary organisation, flouted its own internal democratic processes and a member sought recourse from the courts. I therefore find it either naïve, on the part of legally in-erudite members of, or aligned to the MDC, or disingenuous on the part of the MDC aligned legal pundits. They surely cannot have their cake and eat it. MDC made its constitution, and MDC must abide by its constitution.

The problem with this argument is, in my opinion, that it relies more on populism instead of democracy. Cas Mudde, describes populism as a thin-centred ideology that considers society to be ultimately separated into two homogenous and antagonistic groups, “the pure people” and “the corrupt elite”. Populism has been known to undermine the civility of the relations among citizens. It erodes the respect for the dignity of political opponents and minority groups and weakens the culture of reasoned debates, and this can be witnessed in the MDC debate.

The primary feature of populism is the existence of a leader who claims to have, and to a significant extent is able to make good on the claim to have a direct, unmediated, connection with the people or the society or state, and Chamisa fits the template.

Populist leaders tend to speak directly to the people, using language that has a broad appeal. Pierre Ostiguy styles this as “flaunting the low”. Glossing this, we might say that populists often speak in highly emotional language and are impatient with reasoned arguments. Frequently, the discourse of populism is framed in existential terms that seek to inspire fear and panic: The state faces a disaster that only the populist leader, through rapid, and sometimes unconstitutional action, can avert.

Rather than provide evidenced arguments for these positions, populists seek to make an emotional connection with the people, using visceral language that circumvents the structures and disciplines of reasoned decision-making.
These characteristics include the division of members of the organisation or state, between insiders and outsiders; the tone in which populists conduct political discourse; and, finally, an attack on those structures of the constitution that limit the power of the populist.

This resonates with what we are witnessing within the MDC today, where the populist leader in Chamisa is being flaunted as the one, through rapid and unconstitutional action, will avert the disastrous state Zimbabwe currently finds itself in, regardless of him violating the constitution and undermining democratic processes.

All I see in this is a leadership that does not respect democratic process, but seeks personal aggrandisement. In November 2017,
participated in the demonstrations to support the coup.

It was clear for any legally trained individual to see that it was an unconstitutional power takeover, but because the lawyers in the MDC were expecting to be included in the new government, they ignored legal reasoning. Only Coltart pointed out the illegality of the power takeover at the time. When they later realised that it was a Zanu PF succession struggle, they started claiming that it was a coup. That shows personal political benefit ahead of the national cause.

Chando is lawyer, political analyst and commentator on International Law and Politics email: jonathanchando@gmail.com

Zimbabwe Independent invites other legal opinion on the matter. Email it to newsdesk@zimind.co.zw

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