THE Supreme Court judgment set off a series of gaffes by the MDC-Alliance, starting with their denial of the validity, enforceability and effectiveness of the judgment on the MDC-Alliance. The MDC-Alliance leaders, who describe themselves as democratic and constitutional, have been scoring own goals.
They knew that the judgment was detrimental to their outfit, but continued to deny its effect. If they believed that it would not affect them, the MDC and Nelson Chamisa would not have appealed the High Court judgement in the Elias Mashavira case.
Why would Chamisa appeal an MDC case, if he was already president of another party? They appealed, not because they expected to win the appeal, but they just wanted to deflect the judgment in the hope of sanitising Chamisa at the pending Gweru MDC congress, which they ironically now claim was an MDC-Alliance congress, deepening the imbroglio, as Justice Patel later called it.
It is interesting to note that a few months ago, the MDC-Alliance was in denial about the effects of the Supreme Court judgment on the party, but now they have engaged in what may be called “lawfare”, and have so far made at least five court applications, before the “captured” courts. Following the recall from Parliament of four legislators Chalton Hwende, Thabitha Khumalo, Prosper Mutseyami and senator Lilian Timveous, by MDC-T a series of court applications have been made by the (lawyer-dominated) MDC-Alliance.
They approached the High Court challenging the recall of the four(MDC-Alliance legislators; sought an interdict stopping more recalls of MPs; and filed an urgent High Court application to stop the disbursement of ZW$7,5 million from government, due to them in terms of the Political Parties Finance Act. There has also been an application by Timveous and Khumalo, who sought and were granted, temporary relief by Justice Martin Mafusire, to bar the Thokozani Khupe-led team from replacing them in Parliament, pending the determination on the other cases regarding the validity of the MDC-Alliance as either a party or whether it is a “legal person”.
Another court case regarding the occupation and use of Morgan Tsvangirai House is also raging in the courts. Many issues will have to be determined, such as when the MDC-Alliance occupied the building, how they displaced the MDC (which is the lawful original tenant) from the building, if the MDC-Alliance has a lease to that effect, and whether the MDC was in possession of the building until the expiry of its lease. Are the directors (trustees) of the company (trust) that owns Morgan Tsvangirai House, the owners or they are mere administrators, and does the building belong to the MDC, is held in trust or belongs to a 3rd party? These are issues that will need to be answered.
I have read the judgment handed down by Justice Tawanda Chitapi, on May 29, 2020, where it was determined that the MDC-Alliance was not a legal person.
In an interview after the judgment, MDC-Alliance spokesperson, Fadzayi Mahere, admitted that their case was flawed. Asked by a journalist what she had to say about their failure to produce the MDC-Alliance constitution, she said their legal team has to take responsibility for the poor performance., but tried in vain to deflect by arguing, in futility, that they are now focussed on fighting the people’s constitutional democracy.
I found this curious that while she was handpicked and appointed as an unelected spokesperson, at the expense of long-serving and loyal MDC cadres, she claims constitutionality and democracy.
The MDC-Alliance legal team has produced mediocre performance in almost all the cases post-2018 elections, despite the leadership and aligned legal, political and media pundits singing endlessly about the “capture of the judiciary”.It is a sign of denial psychology and psychological deflection at play.
It will be onerous for the MDC-Alliance to succeed in these cases, as their evidence of existence as a party is only reliant on their record with the Zimbabwe Electoral Commission, the Political Parties Finance Act and the Electoral Act, and the records of the Parliament of Zimbabwe.
So far, they have failed to provide any evidence that may serve as an instrument of conjugation of the party. Chalton Hwende once posted what he called an MDC-Alliance constitution, but failed to avail it before Justice Chitapi.
It appears most, if not all, transactions that the MDC-Alliance has engaged in in the past were on MDC correspondence and documentation. All available documentary and video evidence points to the fact that the MDC-Alliance was a coalition of parties.
How ironic that a party that claims to be the largest opposition party was verbally constituted, without any instrument of conjugation. Another irony is that the party is full of lawyers, who would ideally be mindful of creating a legal organisation with a constitution, capable of suing and being sued.
When Hwende is representing the party in litigation, where does he derive his mandate from, without any documented party resolution that has given him the mandate to act on behalf of the party? It only points to the fact that the MDC-Alliance is a coalition of political parties as left by Tsvangirai and has never morphed into a substantive political party as claimed.
Even if the courts were to determine that the MDC-Alliance is a party, duly constituted, it will not be the end of their problems. Khupe may still claim leadership of the MDC-Alliance by virtue of being the constitutional leader of the larger component of the MDC-Alliance which was then led by and brought into the coalition by Tsvangirai and later hijacked by Chamisa.
I have observed that the MDC leaders, aligned legal and political pundits have been throwing around the rhetoric that Chamisa has got the numbers, and courts do not make a leader.
They very well know that to enter State House, one has to comply with the constitution and ensuing laws. If numbers were the sole determinant of state power, Chamisa would not have petitioned the Constitutional Court, after losing to Emmerson Mnangagwa, which petition was without merit.
I would also question why they keep running to the courts, if the people are the sole determinant of state power. It is foolhardy to believe that only numbers are the important factor in politics, even when one is breaking the law. With or without numbers, there is the ethics adage that says, wrong is wrong even if everyone is doing it, and right is right even if no one is doing it. In this instance, the MDC-Alliance is wrong, with or without the numbers, and it is following a disastrous path.
The rhetoric that Chamisa has 2,6 million votes, to me appears far-fetched. Hillary Clinton garnered 65,8 million electoral votes while Donald Trump had 62,9 million, but because of the constitution, Trump is President of the United States.
It is the constitution that determined that Trump won by Electoral College votes. Today, we do not hear Clinton boasting that she has the support of more than 65 million votes, simply because that was a phase that passed, and she lost.
While Chamisa garnered over two million-plus votes in the last election, and has the support of many, it is foolhardy to disregard constitutionalism and democratic processes in lieu of populism. As it stands, until the final determination of the courts, Chamisa is not the leader of the opposition, in view of the Supreme Court judgment, and his party the MDC-Alliance will have to wait to find out if it is a political party, or a legal person.
We are also witnessing the indecisiveness by the MDC-Alliance, where one day they order their affiliated legislators to boycott Parliament, and the next they allow them to attend.
This, in my opinion, indicates confusion, or there is inherent fear that some will defect to the Khupe-led team, fearing recalls and loss of privilege and perks, or they embrace the Supreme Court judgment. It appears some MDC legislators are there only to earn allowances and perks, and consider it as a career.
If the MDC-Alliance is confident in itself, why not withdraw completely from the legislature, since they do not recognise the government of the day? It is duplicitous of them to participate in one arm of the state, which benefits them as individuals, while refusing to acknowledge the others. If the people are the sole source of power, why run to the “captured” courts? My observation has been that in most of the MDC-Alliance cases that have gone before the courts, their legal performance has been mostly abysmal and mediocre.
In a Bible story in 2 Chronicles, Rehoboam the son of King Solomon was installed after his father died. He ignored the counsel of the elders who were experienced in the affairs of Israel and took the counsel of his friends and disaster befell him. This, in my opinion, resonates with the current scenario in the MDC-Alliance. Since Chamisa usurped power a day after Tsvangirai’s death, he has removed or sidelined most of the loyal of the party leadership and replaced them with the bootlicking student brigade of his time. Women who stood firm and have been loyal to the party since its inception have been viciously relegated or muscled out. The likes of Grace Kwinje, the late Trudy Stevenson, Jessie Majome, Khupe and others, have been vilified and ridiculed and have been replaced with younger praise singers.
Any person who tends to disagree with Chamisa is viciously attacked verbally and sometimes physically, by his youth brigade, and called a Zanu PF agent, with women being called whores. Others in leadership such as Lovemore Moyo left because they had become uncomfortable with remaining in a party that flagrantly disregards its own constitution and democratic processes, and is violent towards opposing views.
It is only a matter of time before most of the legislators and councillors switch allegiance, as witnessed by the switching of sides of the likes of Paurina Mpariwa, Tapiwa Mashakada and others, including Vincent Tsvangirai. The unconstitutional appointment of the likes of Fadzai Mahere, who is new in the party, at the expense of seasoned party founders, most of whom have served loyally and diligently, resonates with the Rehoboam syndrome.
I have previously suggested two possible routes Chamisa and his party could take. The first is to reconcile the MDC family and go for an extraordinary congress where, given his support, he could emerge as president of a united MDC to fight Zanu PF in 2023.
The other route would be to abandon everything entangled with the MDC, which they are going to lose anyway, and properly form a new party, and re-establish themselves as a formidable outfit. While Zanu PF is cunning and can use all tactics to destroy the opposition, it is naïve to blame it for all the mistakes the MDC has inflicted upon itself.
Zimbabwe deserves a credible opposition that does not mimic Zanu PF in constitutional violations, transgression of democratic processes and corruption, which the MDC has copied, as evidenced in the local government councils it runs. They need to change their politics and unite if they are to dislodge Zanu PF at the next elections.
Chando is a lawyer, political analyst and commentator on international law and politics. Email: firstname.lastname@example.org