RECENTLY, I wrote two articles which were both published in the Zimbabwe Independent. The first was an opinion piece titled The MDC imbroglio is devastating for the opposition. In the opinion piece, I wrote about how the MDC has perpetually created confusion and violated its own constitutional and democratic processes, but has always blamed third parties for its own mistakes.
I also wrote about the hypocrisy of the MDC led by Nelson Chamisa and the aligned political and legal analysts, in claiming that the Supreme Court should have declared the MDC-Chamisa case moot and academic, yet they continue to claim the illegitimacy of Emmerson Mnangagwa as President of Zimbabwe and refuse to see it as water under the bridge, despite losing a court challenge to that effect.
I also wrote that despite the fact that Zanu PF cannot be removed from suspicion of taking advantage of the MDC confusion and self-inflicted damage, the perpetual habit of blaming everyone else without self-evaluation and correction by MDC is disingenuous.
In the second article, I wrote an analysis of the recent Supreme Court judgment on the MDC leadership, titled Before his downfall, a man’s heart is proud, but humility comes before honour —The MDC Supreme Court judgment, which was published on the Independent website.
In the analysis, I addressed the key legal issues of contention regarding the judgment, in which I articulated in detail how the Supreme Court came to its determination, the arguments in support of its decision on the illegality of, and unconstitutional ascendance by Chamisa, and the reasons for the determination. I also articulated how the judgment would impact on both the MDC and the MDC-Alliance, and how MPs and councillors would be recalled, should they defy, the enforcement of the judgment upon them.
As I asserted in both articles that the Supreme Court judgment would have devastating consequences on MDC and MDC-A alike, three MDC-A MPs and one senator have been recalled by the interim leadership of the MDC, in accordance with the determination of the Supreme Court and the ensuing order. Those recalled are Chalton Hwende, Thabitha Khumalo, Prosper Mutseyami and Lillian Timveos. These legislators belonged to the then MDC, formerly led by Nelson Chamisa, and were elected on the MDC-A ticket.
There has been an outcry from the MDC-A leadership, members, supporters, political and legal pundits, upbraiding the recall as the work of Zanu PF, and as unconstitutional. Some accused the Speaker of National Assembly and the President of the Senate of making the decisions to recall the legislators, which powers they do not have. They argued that only the party under whose ticket they contested and won has the power to recall.
In order to understand and establish who has the power to recall MPs, we need to first know the provision that enables the recall of a legislator. Section 129(1)(k) of the Constitution of Zimbabwe provides that: “if the member has ceased to belong to the political party of which he or she was a member when elected to parliament and the political party concerned, by written notice to the Speaker or the President of the Senate, as the case may be, has declared that the member has ceased to belong to it”.
In my legal analysis of the Supreme Court judgment a fortnight ago, I explained how the judgment would affect the senators, MPs and councillors elected under both the MDC-T and MDC-A, which I will revisit below.
When Chamisa usurped the MDC acting presidency, he took the larger chunk of the MDC leadership, and membership, when they split with the Thokozani 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-A. It is this chunk of the MDC that is rightfully and legally impacted by the Supreme Court judgment.
Some have argued that the party that went to the elections was the MDC-A, therefore the MPs, senators, and councillors are not affected as they are registered under the MDC-A with the Zimbabwe Electoral Commission (Zec).
When the seven parties that formed the MDC-A 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 Welshman 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-A, who will be subject to the Supreme Court judgment.
Whether they were elected under the MDC-A banner or not, they joined the alliance as a component of the MDC, which was before the Supreme Court. And these are the MPs, senators 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-A banner as registered with Zec is irrelevant because Zec does not have regulatory powers over parties beyond the election period.
Political parties retain control over their MPs, senators 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-A. Resultantly, MPs, senators and councillors belonging to both the MDC-T, formerly led by Khupe, and the MDC component (formerly led by Chamisa), of the MDC-A, are subject to the authority of Khupe’s interim leadership.
Having established the power of recall by Khupe, it is necessary to establish why only the four have been recalled. There have been accusations that they were targeted in order to instil fear in the rest of the legislators and create a divide-and-rule strategy. I find such accusations as unfounded or ill-disposed and based on the usual political rhetoric that seeks to divert MDC ineptitude, and cast blame on everyone else other than themselves.
Hwende wrote to the Speaker of National Assembly, claiming they are MDC-A MPs and cannot be bound by the determination of the Supreme Court. He wrote this letter as the secretary-general of the MDC-A. The discrepancy with his letter is that, according to the Supreme Court judgment, he is no longer secretary-general of the MDC-A, as his post was nullified by the judgment because he is part of those MPs elected as part of the Chamisa-led component of the MDC-A.
The letter in itself is a clear show of defiance of the power given to the Khupe-led team by the Supreme Court, which allows them to recall those in defiance of the judgment. By writing to the Speaker and to the President of the Senate, Hwende automatically expelled himself from the Supreme Court reconstituted MDC. Such letter would have been delivered to the Speaker of the National Assembly through, or in agreement with both the leader of the opposition (Khumalo) and the chief whip (Mutseyami). The same would have happened in the Senate with the leader of the opposition (Timveos).
Douglas Mwonzora, as the interim secretary-general of the MDC, then wrote to the Speaker of the National Assembly, informing him that Hwende and those leaders of both Houses, who would have facilitated or agreed with the presentation of the letter to the Speaker and President of the Senate, in defiance of the judgment, are no longer members of the MDC. What many refuse to come to grips with, or are oblivious of is that the MDC-A MPs, senators and councillors from the Chamisa-led component are no longer MDC-A officials.
They now legally belong to the Khupe- led leadership, including the MDC-T formerly led by Khupe herself, after the judgment. Even the letter written by Nixon Nyikadzino, who still calls himself secretary-general of the MDC-T, is null and void. Those MDC-T structures were nullified, together with the congress, and the MDC-T MPs, like those under Chamisa are now under the Supreme Court-appointed leadership of Khupe.
Aspersions have also been cast on the Speaker of the National Assembly and the President of the Senate for what was called, “involving themselves in deciding between accepting the letter from Hon Hwende and that from Mwonzora”. Both the Speaker and the President of the Senate did not have to decide, as the Supreme Court had already made a determination that all those belonging to the Chamisa-led MDC who are part of the MDC-A revert back to the MDC led by Khupe. And only Khupe can recall them from the legislature now.
As I wrote in my legal analysis two weeks ago, all those MPs, senators and councillors from the Chamisa component of the MDC-A, who will defy the Khupe leadership as ordered by the Supreme Court going further, will be subject to recall. They, however, have the option to resign from the MDC and/or MDC-A, and form a new party under Chamisa, and contest their seats in by-elections.
While politically Chamisa has the popular support, hanging on and fighting for and under the MDC or MDC-A banner will not yield any political fruits for both him and his supporters. The continued denial of the reality on the ground displays self-destructive arrogance on the part of the MDC-A leadership, and detrimental ignorance on the part of supporters.
Chando is a lawyer, political analyst and commentator on international law and politics. — firstname.lastname@example.org